WASHINGTON – The Pentagon said Thursday that decisions about discharging homosexual service members would now be made by the secretaries of the Army, Navy and Air Force, a move that officials said was as aimed at ensuring “uniformity” amid uncertainty about the 17-year-old law prohibiting gays from serving openly in the military.
The new rules, which take authority for removing enlisted personnel found to be homosexual away from uniformed officers, came a day after an appeals court in San Francisco lifted a judge’s order that had barred the Pentagon from enforcing the “don’t ask, don’t tell” policy.
Even with the statute now back in force at least temporarily, a senior Pentagon official said the flurry of legal decisions, more of which are possible as early as next week, had made it necessary to ensure there is no confusion about the law as the appeals process proceeds.
“We are clearly in a legally uncertain environment” said a senior Pentagon official. “We wanted the separation in the hands of fewer people.”
Discharge decisions are currently made by general or flag officers, hundreds of whom potentially have authority to kick out a service member under the “don’t ask” policy. The new rules do not change the procedures for removing officers, who are already subject to removal only by the service secretaries.
The appeals court decision “highlights the legal uncertainty period in which we now find ourselves with respects to Don’t Ask, Don’t Tell and the need to further ensure uniformity and care in the enforcement of the law,” Undersecretary of Defense for Personnel Clifford Stanley said in a memo announcing the change.
A senior Pentagon official who briefed reporters said the new rules were considered necessary because of the possibility of confusion about the status of the law within the ranks and are not aimed at slowing down discharges while the appeals process runs its course.
But Aubrey Sarvis, an Army veteran and executive director of Servicemembers Legal Defense Network, said giving service secretaries authority over discharges could dramatically reduce the number of individuals kicked out.
The new procedures came less than a week after a previous Pentagon memo that declared, as a result of the initial ruling overturning the law, homosexuals were free to enlist openly in the armed services. That lasted only eight days.
The legal battle over the “Don’t ask” policy will remain on hold until at least next week, as the three-judge panel in San Francisco considers whether to keep the law in effect indefinitely.
In September, U.S. District Judge Virginia Phillips declared the law unconstitutional because it discriminated against gays and lesbians who wanted to serve in the military. On Oct. 12, she ordered the government to suspend enforcement.
The three-judge panel agreed with the administration Wednesday that the law should stay in effect but issued only a temporary order.