Gates alters rules for investigating gay troops

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Defense Secretary Robert M. Gates on Thursday took steps to soften the military’s ban on openly gay service members while retaining the law’s core restriction that avowed homosexuals face discharge.

Mr. Gates said in a statement at the Pentagon that third-party, anonymous complaints identifying suspected gays no longer would be the basis for triggering investigation under the Pentagon’s “don’t ask, don’t tell” policy. Informants now must provide complaints under oath, and commanders are urged to discourage complaints based on hearsay.

“I believe these changes represent an important improvement in the way the current law is put into practice, above all by providing a greater measure of common sense and common decency, to a process for handling what are difficult and complex issues for all involved,” the defense secretary said.

But the effect of the policy change on reducing investigations is not known. The Pentagon has said it does not know how many service members are discharged each year based on confidential third-party complaints that begin the investigation process. Some advocacy groups say the percentage is small.

Mr. Gates, appearing at a news conference, also said he is requiring a general or admiral in the service member’s chain of command to decide whether to act on a complaint. Mr. Gates is requiring a more senior officer to head a probe: a lieutenant colonel, or commander in the case of the Navy. Acknowledgments of homosexuality to a doctor or therapist cannot be used to start an inquiry.

Mr. Gates said all ongoing cases would be restarted under the new rules.

In tweaking but not ending the ban on gays, the defense secretary is sticking by a pledge made during congressional testimony last month. In disclosing for the first time that he supports President Obama’s pledge to repeal the 1993 law, Mr. Gates said only Congress, not the administration, has the power to end the prohibition.

Mr. Gates said Thursday that “only Congress can repeal the current ‘don’t ask, don’t tell’ statute. It remains the law, and we’re obligated to enforce it. At the same time, these changes will allow us to execute the law in a fair and more appropriate manner.”

So for now, service members who proclaim their homosexuality or who are identified as gay in on-the-record complaints still would be subject to honorable discharge.

Conservative groups were not happy with Mr. Gates’ action.

Elaine Donnelly, who heads the Center on Military Readiness, part of a coalition of groups that defend a ban on gays in the military, said Mr. Gates is creating confusion where none existed.

“By applying new regulations applying only to the small number of discharges that occur for homosexuality, he has invited noncompliance with the extant 1993 law in future cases and those that are still pending,” she said.

“Instead of taking the opportunity to clarify the meaning and intent of the law, Secretary Gates seems to be condoning unwarranted delays. Local commanders who are trying to do their duty by enforcing the law deserve support, not second-guessing by higher-level officials who seem more concerned about President Obama’s views than they are about the terms and intent of the law.”

The Family Research Council said in a statement that “these new guidelines undermine enforcement of the law banning homosexuality in the military. Generals and flag officers lack the time to launch such investigations. The new regulations only invite open defiance of the law.”

Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, which wants the ban repealed, called Mr. Gates’ changes “another major step forward in making the 1993 ban less draconian.”

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