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Don't Ask, Don't Tell, Don't Serve?

Well, apparently the move to strike down "don't ask, don't tell" has passed, which is fine and dandy, but the question that now jumps to my mind is does that also strike down the original ban that DADT was put in place to get around? 'cos if not, it seems to me we're right back where we started. And I have yet to hear anyone comment on this aspect, which leads me to wonder. It might not be the victory people are hoping for! O.o

If somebody can give me a definitive answer either way, I'd appreciate it.

-The Gneech



( 6 comments — Leave a comment )
Dec. 19th, 2010 04:22 am (UTC)
This will be a big help to our gay Veterans who can't get VA benefits due to Dishonorable discharges due to homosexual conduct. They couldn't get them upgraded to get benefits before. Now they can get their discharges upgraded and will be eligible for benefits. This is excellent news.
Dec. 19th, 2010 04:58 am (UTC)
Here is what I understand:

1) Obama must send a written certification that the change will not hinder military readiness to Congress within 90 days, until then it does not go into effect even with his signature.

2) This will mean that the military judge advocates and Congress will still have to change parts of the UCMJ (since Congress holds the keys to the UCMJ - not the President), such as Chapter 15/AR 635-200 of the UCMJ (a discharge for homosexuality) and UCMJ 925 Article 125 (SODOMY/Court Martial Offence.)

Even if changed, some restrictions will still apply, just as they would to heterosexual relationships (e.g. No sex in public places, no statutory rape, no sex through intimidation) But now, the person in question may be asked what their sexual preferences are - and they must answer truthfully - and it becomes part of their legal record. This is considered the "big can of worms!" by legal teams on both sides.

3) "Conduct unbecoming" is still potential for either court martial or disciplinary action. How that is now adjudicated - is part of the real question that has yet to play out in a court martial. And someone could potentially be asked about freely in court ("Don't ask" is now dead too, remember?), and the person in question have to answer under the fear of purgery. (Yes, now they can ask, and they may HAVE to tell under oath.) And answering in itself could still end a person in a Chapter 15 discharge, unless it is changed - or there was a "stay" of all Chapter 15 cases directed by the President - and he does have that power to send a military executive order to that effect, although the Congress still has the keys to the way the UCMJ is written.

My view: Time will tell, on both sides. I expect more landmark cases and issues on both sides to surface.
Dec. 19th, 2010 02:37 pm (UTC)
I'm more concerned about the possible reactions of the soldiers in the field than I am about the specific legalese.

Does the name Winchell, Barry, Pfc, U.S. Army ring any bells?
Dec. 19th, 2010 04:31 pm (UTC)
The intent is that the military cannot discriminate based on a soldier's sexual orientation. However, it doesn't specifically speak to the various branches "code of justice" rules, which still have rather draconian rules about what kinds of sex you can have.

Now, the SCOTUS already struck down state-based sodomy laws, so I'd assume similar military rules are also unconstitutional, but it hasn't been tested in court yet. Luckily, the new bill takes this into consideration:
(C) Determine appropriate changes to existing policies and regulations, including but not limited to issues regarding personnel management, leadership and training, facilities, investigations, and benefits.
(D) Recommend appropriate changes (if any) to the Uniform Code of Military Justice.

Plus, there will be issues of housing & benefits for same-sex partners, but that'll work out over time. Either through the military itself, or through courts.

Basically, this bill says that the military needs to provide updated rules for how it deals with homosexual soldiers, but doesn't specify how they are to do it.
Dec. 19th, 2010 05:40 pm (UTC)
You know me I prefer Thomas for bill references so I'd direct you there for actual text


I'd suggest starting there after that the current time is complicated. It will have to be worked out over the coming months. It is possible that this leaves the door open to return to the original situation but I'm not sure that is the eventual end result.
Dec. 19th, 2010 10:37 pm (UTC)
I'm just standing around waiting to see the whole story too--we'll see. I'm glad there's a lot of commentary here that can be looked into--
( 6 comments — Leave a comment )

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