The Issues:
Policy Details of "Don't Ask, Don't Tell"
One way to understand the law, and implementing regulations, known as DADTDPDH (Don't Ask, Don't Tell, Don't Pursue, Don't Harrass) is by breaking it down to its component parts.
Don't Ask. Commanders or appointed inquiry officials shall not ask, and members shall not be required to reveal, their sexual orientation.
Don't Tell. "A basis for discharge exists if... [t]he member has said that he or she is a homosexual or bisexual, or made some other statement that indicates a propensity or intent to engage in homosexual acts...."
Don't Pursue. More than a dozen specific investigative limits as laid out in DoD instructions and directives comprise "Don't Pursue." It is the most complicated and least understood component of the policy. These investigative limits establish a minimum threshold to start an inquiry and restrict the scope of an inquiry even when one is properly initiated.
A service member may be investigated and administratively discharged if they:
- make a statement that they are lesbian, gay or bisexual;
- engage in physical contact with someone of the same sex for the purposes of sexual gratification; or
- marry, or attempt to marry, someone of the same sex.
Only a service member's commanding officer may initiate an inquiry into homosexual conduct. In order to begin an inquiry, the commanding officer must receive credible information from a reliable source that a service member has violated the policy. Actions that are associational behavior, such as having gay friends, going to a gay bar, attending gay pride events, and reading gay magazines or books, are never to be considered credible. In addition, a service member's report to his/her command regarding harassment or assault based on perceived sexuality is never to be considered credible evidence.
If a determination is made that credible information exists that a service member has violated the policy, a service member's commanding officer may initiate a "limited inquiry" into the allegation or statement. That inquiry is limited in two primary ways. First, the command may only investigate the factual circumstances directly relevant to the specific allegation(s). Second, in statement cases, the command may only question the service member, his/her chain of command, and anyone that the service member suggests. In most cases of homosexual statement, no investigation is necessary. Cases involving sexual acts between consenting adults should be dealt with administratively, and criminal investigators should not be involved.
The command may not attempt to gather additional information not relevant to the specific act or allegation, and the command may not question anyone outside of those listed above without approval from the Secretary of that Service. Such an investigation is considered a "substantial investigation." In order to request authority to conduct a "substantial investigation," the service member's command must be able to clearly articulate an appropriate basis for an investigation.
As with a "limited inquiry," only a service member's commanding officer has the authority to request permission to conduct a "substantial investigation." By definition, a "substantial investigation" is anything that extends beyond questioning the service member, the service member's immediate chain of command, and anyone the service member suggests.
Don't Harass. "The Armed Forces do not tolerate harassment or violence against any service member, for any reason." There are many regulations and laws that prohibit harassment and can be applied to anti-gay harassment cases. Harassment can take different forms, ranging from a hostile climate rife with anti-gay comments, to direct verbal and physical abuse, to death threats.
DADTDPDH is a complex policy comprised of statute, regulations and policy memoranda. The above description, however, covers the basic policy components -- and those are fairly simple. Don't ask about sexual orientation. Don't investigate sexual orientation, except in specific circumstances in limited ways. Don't harass. Don't tolerate harassment based on perceived sexual orientation. Unfortunately, even after nine years, the Services continue to violate these basic rules.
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