Pentagon Lawyer Explains Policy Revisions

By Jim Garamone
American Forces Press Service

March 26, 2010 - Changes made to the way the Defense Department applies the law that bans gay men and lesbians from serving openly in the military means that officials will apply the law in a more fair and appropriate manner, the Pentagon's top lawyer said here today. General Counsel Jeh C. Johnson stressed that although the Defense Department has changed some of its practices in applying it, only Congress can repeal the law.

Defense Secretary Robert M. Gates announced the changes yesterday, and Johnson explained the changes in an interview today.

"The secretary approved raising of the level of the officer who can initiate an inquiry, raising the level of the officer who can conduct the inquiry and a raising of the level of the officer who would separate someone from the enlisted forces," Johnson said.

The department also revised its definition of credible information the military can use in an inquiry and revised the term "reliable person" as it pertains to the process.

Another revision creates an area of "protected communications" that cannot be used in a separation inquiry. These include doctor-patient, therapist-patient and lawyer-client communications, communications with clergy, and communications that are part of a background check, Johnson said.

The revisions do not apply retroactively, but they apply immediately to all open cases and to all cases moving forward.

"So if there is an open administrative case, an open separation proceeding, the revisions would apply," Johnson said. "The person who is conducting the inquiry or separation proceedings is supposed to look at the regulations and see if that matter is still appropriate, given the revisions."

All of the services have agreed to these changes, Johnson said.

Gates tapped Johnson and Army Gen. Carter F. Ham, commander of U.S. Army Europe, to study how best to move forward if Congress repeals the so-called "Don't Ask, Don't Tell" law. Their report is due Dec. 1.

Johnson said it is important that he and Ham get a range of opinions from servicemembers. He said they will get frank information from gay servicemembers and those who work with gay servicemembers within the confines of the law. "It's something we recognize we should do, and we're working to find mechanisms, legally, for us to do that," Johnson said.

If Congress decides not to act on repeal of the law, the Gates revisions will remain in effect. "There is no sunset provision on these changes," Johnson said.

The general counsel would not try to quantify what effect the revisions will have on the number of servicemembers discharged under the law. In 2009, 428 servicemembers were discharged under the law – the fewest since the Defense Department began keeping records in 1997.

Since 1997, the military has discharged 10,935 servicemembers under the law.