Repeal of Don’t Ask, Don’t Tell (DADT) Tier I Law Enforcement Personnel Educational Material

UNCLASSIFIED/FOUO Repeal of Don’t Ask, Don’t Tell (DADT)Tier I Law Enforcement Personnel Educational Material Leadership – Professionalism – Discipline - Respect

Key Principles for LE Personnel UNCLASSIFIED/FOUO • Successful implementation requires Leadership, Professionalism, Discipline, and Respect. • 2. Sexual orientation will not be a basis for official action or a factor in decision-making. • 3. It remains DoD policy that sexual orientation is a personal and private matter. • 4. For now, there is no change to the UCMJ or MCM. • 5. The Defense of Marriage Act (DOMA) will limit the benefits legally recognized Gay, Lesbian, or Bisexual (GLB) partners receive.

The History of DADT UNCLASSIFIED/FOUO • Origin of Don’t Ask Don’t Tell • January 29, 1993 – White House Statement • November 30, 1993 – 10 U.S.C. § 654 • December 21, 1993 – DoDD 1304.26 • Sexual orientation became a personal and private matter. However, if disclosed: • Gay, Lesbian, or Bisexual (GLB) conduct was a bar to service • GLB conduct was a basis for discharge

The DADT Repeal Act UNCLASSIFIED/FOUO • Repeal of Don’t Ask Don’t Tell Signed • December 22, 2010 – Public Law 111-321 • The Act repeals 10 U.S.C. § 654 • Sexual orientation remains a personal and private matter. However, if disclosed: • GLB conduct is no longer a bar to entry • GLB conduct is no longer a basis for discharge

The DADT Repeal Act UNCLASSIFIED/FOUO • Repeal takes effect 60 days after POTUS, SECDEF, and CJCS certify the following: • That they considered the DoD comprehensive review published on 1 DEC 2010 • That DoD has established the necessary policies and regulations to implement the repeal • That implementation of the policies/regulations is consistent with military readiness, effectiveness, cohesion, retention, and recruiting

DADT Repeal Facts for Law Enforcement Personnel • There are no changes required in law enforcement regulation or policy upon DADT repeal • Law enforcement performance post-DADT Repeal will continue to meet the same professional, impartial and appropriate standards we now demonstrate • Conforming amendments to the UCMJ for Article 125 (Sodomy) and Article 134 (Adultery) may be considered for presentation to the Congress and/or action by the President

Personal and Professional Conduct (UCMJ) • The UCMJ is the foundation for good order and discipline and the vehicle for enforcement of proper conduct • The UCMJ remains unchanged • Article 125: • Forcible Sodomy • Consensual Sodomy • Sodomy involving minors • Application of the UCMJ must always be without regard to sexual orientation

Benefits and Beneficiaries(1 U.S.C § 7) • DOMA, 1 U.S.C. § 7, defines the following terms for the purposes of Federal statute, regulation, or ruling: • “Marriage” only means a legal union between a man and woman • “Spouse” only refers to a member of the opposite sex • 10 U.S.C § 1072, 37 U.S.C. § 401, and the Joint Federal Travel Regulation (JFTR) define “dependent” with language that triggers DOMA • DOMA prohibits DA from recognizing married or civil union same sex partners as “dependents” • DOMA will not prohibit Soldiers from receiving benefits for other dependents (e.g., adopted children)

Vignette 1 UNCLASSIFIED/FOUO Situation: Father – Son Domestic Disturbance. Law enforcement responds to a domestic disturbance between a father (First Sergeant SM) and his 17 year old son. Upon arrival, the altercation is physical and the root of the issue is that the teenage son is involved in a consensual sexual relationship with a male PV2 in the unit. Issues: Domestic Violence; Assault; Privacy. How do you address this situation? Is there a violation of the Standards of Conduct? What about potential command influence / harassment?

Vignette 1 UNCLASSIFIED/FOUO Discussion: The issue of the PV2 who is engaged in a homosexual relationship is not relevant in this investigation. The PV2 is not in violation of any current policies or directives so per the UCMJ this is not a violation. Utilize IPC skills to attempt to mediate the altercation. Depending on jurisdiction for the installation, the MPs should follow standard protocol for referring the assailant to local authorities for consideration of assault charges. This is a mandated referral to the Installation Family Advocacy Program. Consider notifying the Company Commander of the situation.

Vignette 2 UNCLASSIFIED/FOUO Situation: Three Male Soldiers Commit an Aggravated Assault On A Male Soldier. CID is notified, responds and conducts an investigation into an aggravated assault in the barracks. A male Soldier, who was hospitalized with a ruptured spleen, reported that he was assaulted in the barracks. He identifies his assailants, however does not provide a motive for the attack. The three male Soldiers are located apprehended and independently interviewed. During questioning, all three Soldiers report that they do not want to and will not serve with a “queer.” Issues: How should this investigation be handled?

Vignette 2 UNCLASSIFIED/FOUO Discussion: Standard CID protocol should be followed. CIDR 195-1 defines a hate crime as an offense based upon “…sexual orientation.” Reporting requirements for hate crimes differ from other investigations. An Initial Serious or Sensitive Incident Report must be completed. The motivation of the assault is relevant and under the proposed policy, open documentation of that motive is appropriate and should be briefed as a routine part of the investigative briefing. Commanders and leaders at all levels have a duty and obligation to ensure not only the health and safety of all Service members under their command, but building esprit and enhancing unit morale. Discretion must be exercised in briefing unit personnel.

Vignette 3 UNCLASSIFIED/FOUO Situation: Female Victim of Sexual Assault/Fraternization. CID responds to a report of a sexual assault and determines that the female victim reports she was raped by a civilian in the restroom of a local club. When queried, the female, a SGT, reports that she would never willingly sleep with a man because she is a lesbian in a committed relationship with her female company commander. Issues: Standards of Conduct; privacy; sexual assault. How do you address this situation? Is there a violation of the UCMJ? . .

Vignette 3 UNCLASSIFIED/FOUO Discussion: First, the protocol for the sexual assault is no different than any other investigation. A thorough crime scene examination, medical examination for the victim, local coordination for a joint investigation and other standard investigative protocols must be followed. The next issue is the statement by the SGT that she is a lesbian, which is not in and of itself a violation of any policy or regulation. The Commander has potentially violated Article 134 (Fraternization) and the Commander and NCO may have violated Article 92 (Failure to Obey a Lawful Order or Regulation) without respect to sexual orientation. . .

Vignette 4 UNCLASSIFIED/FOUO Situation:Finance Reports a potential Basic Allowance for Housing Fraud. A unit reports that during a routine audit, a male SSG was determined to be receiving BAH at the with dependant rates because of marriage. The auditor determined that the spouse of the service member was a male. The SSG is also divorced and has a 12 year old daughter who is in the custody of his ex-wife. Issues: Benefits. Is the incident a fraud? Possibility of false official statements. What entitlements are available to same-sex partners?

Vignette 4 UNCLASSIFIED/FOUO Discussion: CID would conduct a standard investigation and interview of the service member concerning the application. Because the Federal government does not recognize same-sex marriages, the SSG cannot claim dependency for a same-sex partner, for BAH purposes. You inform the SSG that he’s not entitled to BAH at the “with dependent” rate based on a marriage to a same-sex partner. If the SSG states he has a dependent daughter, standard finance regulations concerning BAH at the with dependent rate (for example, the SSG is paying child support) apply. The issue of whether this matter is a fraud or merely improper receipt of benefits hinges on the question of intent. CID should conduct a thorough investigation to determine if the SSG was aware that same sex partners are not recognized for purposes of BAH. When briefing the unit commander, the fact that the SSG is involved in a same sex relationship has no bearing on the investigation. Additional benefits questions should be referred to unit personnel.

Vignette 5 UNCLASSIFIED/FOUO SITUATION: Report of Same Sex Adultery. The spouse of a First Lieutenant in the local transportation company reports her husband is having an extra-marital sexual affair with another male Lieutenant in his unit. Issue: Is this a violation of the UCMJ, Art 134 (Adultery)?

Vignette 5 UNCLASSIFIED/FOUO Discussion: MP should determine if a domestic disturbance situation exists, take a sworn statement to send to the unit for action and inform the spouse that issues of adult consensual sexual misconduct are to be reported to the chain of command. As presently defined in the UCMJ, a married Soldier that commits gay or lesbian acts would not violate Article 134, Adultery but may violate General Article 134 (Prejudicial to the Good Order and Discipline). Because the LTs’ conduct may include sodomy and may be prejudicial to good order and discipline, the conduct may violate Article 125 (Sodomy). There is also a potential violation of Article 133 (Conduct Unbecoming an Officer) because he is engaging in an extra-marital affair. That determination must be made without regard to sexual orientation of either LT.

Vignette 6 UNCLASSIFIED/FOUO SITUATION: Report of Disturbance/Possible Housing Violation. You are an MP First Responder and dispatched to family quarters due to loud noise. Upon arrival you identify the occupants as Sergeant Tim Jones, a military member, John Smith, his same sex partner, and Steven their adopted 2 year old son. Sergeant Jones tells you they were loudly discussing family matters and that there is no need for MP intervention. Issues: Privacy. Housing Issue. How do you address this situation? Is there a violation of the Housing Regulation?

Vignette 6 UNCLASSIFIED/FOUO Discussion: The MP First Responder must take a very active and positive approach with a focus on conflict resolution and professional obligations to uphold regulations and policies. As a First Responder the MP should assist the individuals and help them to resolve their personal differences by mediation. A clear message must be received by both, that respecting each other’s rights is critical to maintaining good order and discipline. If the issue cannot be resolved alternative living arrangements can be made. The MP must also determine if there is a housing violation by obtaining information to who resides at the location. If Steven resides at the quarters with Sergeant Jones because Sergeant Jones is authorized the set of quarters due to his status of being a parent to Steven then there is no housing violation for Steven to reside there. For John Smith to reside there, at most installations the garrison commander has the authority to provide such authorization.

Vignette 7 UNCLASSIFIED/FOUO SITUATION: Public Display of Affection/Assault. You are an MP First Responder on duty and while conducting a routine money escort for AAFES you observe two junior male Soldiers assigned to Company A, 110th training battalion in uniform first kissing and hugging each other, then you observe a female Soldier approach them and slap the face of one of the two male Soldiers. Issue: Standards of Conduct. Is this within standards of personal and professional conduct? Violation of the UCMJ, Art 128 (assault consummated by a battery).

Vignette 7 UNCLASSIFIED/FOUO Discussion: Standards of conduct regarding public displays of affection (PDA) are orientation-neutral. If the observed behavior crosses acceptable boundaries as defined in applicable standards of conduct for their unit and service, then an appropriate correction should be made. Your intervention should be made without regard to sexual orientation. However when it comes to the Assault the UCMJ stipulates that an “assault” is an attempt or offer with unlawful force or violence to do bodily harm to another, whether or not the attempt or offer is consummated. The MPs need to conduct an investigation into the motivation of the female offender to determine why she assaulted the male Soldier. The female offender needs to be apprehended and processed due to the assault the MP witnessed.

UNCLASSIFIED/FOUO Repeal of Don’t Ask, Don’t Tell (DADT)Tier I Law Enforcement Personnel Educational Material Leadership – Professionalism – Discipline - Respect 23

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Repeal of Don’t Ask, Don’t Tell (DADT) Tier I Law Enforcement Personnel Educational Material