ASSISTANT SECRETARY OF DEFENSE, Hon. EDWARD I. KOCH, Washington, D.C. DEAR MR. KOCH: This is in response to your letter of July 7, 1971, regarding Department of Defense policy concerning homosexuals in the Armed Forces. The enclosed Fact Sheet regarding Department of Defense policy on homosexuals in the Armed Forces is provided for your information. No changes are contemplated regarding this policy. The policy regarding the type and character of administrative discharge governing the separation of homosexuals from the Armed Forces is contained in Department of Defense Directive 1332.14, "Administrative Discharges," dated December 20, 1965 [Sections VII.G 6, and 1.2]. A copy is enclosed for your information. The nature of a discharge issued as a result of being adjudged by court-martial is specifically governed by Federal statute, 10 United States Code 925. This section encompasses all unnautral sexual intercourse between humans or between humans and animals. Some homosexual relations could come within the provisions of this section. The maximum punishment which may be imposed for a violation of Section 925 is outlined in paragraph 127c, Table of Maximum Punishment, Manual for Courts-Martial, supra as follows: By force and without consent: Dishonorable Discharge, confinement at hard labor for 10 years, total forfeiture of all pay and allowances. With a child under the age of 16 years: Dishonorable Discharge, confinement at hard labor for 20 years, total forfeiture of all pay and allowances. Other cases: Dishonorable Discharge, confinement at hard labor for 5 years, total forfeiture of all pay and allowances. The accused may be charged with assault with intent to commit sodomy in violation of 10 United States Code 934. The maximum punishment in violation of section 934 is a Dishonorable Discharge, confinement at hard labor for 10 years, and total forfeiture of all pay and allowances. The Manual for Courts-Martial is an Executive Order of the President of the United States as prescribed by section 836, 10 United States Code. All branches of the Armed Services are bound by its provisions. I trust that the information provided will be of assistance to you. Your interest in matters pertaining to the Military Services is appreciated. Sincerely, LEO E. BENADE, Major General, USA, Deputy Assistant Secretary of Defense. HOUSE OF REPRESENTATIVES, Washington, D.C., August 11, 1971 Secretary MELVIN LAIRD, DEAR MR. SECRETARY: I am writing to you with further reference to the question of homosexuals in the Armed Services, about which I wrote to you on July 1, 1971. While I do not approve of the Department of Defense's policy to discharge all homosexuals automatically from the military, I would like to direct this letter to change which could be made in current policy regarding the type of discharge given to homosexuals. When referring to a homosexual in this letter, I mean only a consenting adult who has engaged in homosexual acts on his or her own time and not in public. Apparently, each branch of the service has a certain discretion in deciding how such an individual is to be discharged, and that such persons usually are not given court martials but are discharged administratively. According to existing regulations as set forth in the Department of Defense Directive No. 1332.14, December 20, 1965, a homosexual could be given administratively either an honorable (Unsuitability G-6) or undesirable (Unfitness I-2 or Misconduct J-1) discharge. With an undesirable discharge, it is my understanding that any veteran benefits to which an individual might otherwise be entitled can be cut off at the discretion of the administering agency. Furthermore, the discharge papers are marked "under terms other than honorable" accompanied by a code number signifying sexual deviation. This type of discharge is, in effect, a harsh, punitive measure, one that hardly reflects the contemporary and more enlightened attitude of society today towards an individual's sexual preferences. Not only is present military policy on this matter cruelly out of date, but I believe that what little discretion exists relating to the method of discharging homosexuals is being abused. By way of illustration, I refer you to SECNAV Instruction 1900.9, April 20, 1964, which in my estimation encourages Naval personnel to give undesirable discharges to any homosexual or suspected homosexual. On the first page of this document, paragraph 4f states: "When processing an individual by administrative action in accordance with this instruction and when the conditions prompting such action are essentially voluntary participation in aberran sexual activity, the separation of the individual will normally be characterized as having been "under conditions other than honorable." Administrative processing of cases should therefore contemplate such an ultimate disposition." I cannot see that homosexual behavior in the military is an "offense" which merits this type of discharge. While it is apparent that the leaders of the military, in order to maintain discipline, feel it necessary to exclude homosexuals; there is no need to gratuitously punish them with an undesirable discharge. Usually these individuals are being punished for a failure to comply with the special dictates of an artificial society which they were forced to join. Many, no doubt, were unaware of their homosexual tendencies before joining the service. Furthermore, the present policy of indicating the reason for discharge as sexual deviation constitutes an invasion of privacy. The military can, of course, keep its own records indicating why an individual was separated, but that information ought not in any way be made public. What might be argued by some to be the concern of the military in one's personal life while an active military duty certainly ought not to be the concern of others in civilian life. I would hope that you would give serious attention to this matter and advise me whether or not you would be willing to alter present Department of Defense policy, so that homosexuals, as defined in this letter, are given honorable discharges. Particular attention should be given to issuing new directives to supersede any documents such as SECNAV 1999.9 referred to above. Sincerely, EDWARD I. KOCH. ASSISTANT SECRETARY OF DEFENSE, Hon. EDWARD I. KOCH, Washington, D.C. DEAR MR. KOCH: This is in response to your letter of August 11, 1971, requesting that the Department of Defense alter current discharge policy so that a homosexual would be given an honorable discharge when the consenting adult engages in homosexual acts on his or her own time and not in public. We cannot agree that Department of Defense policy concerning the discharge of homosexuals, as enumerated in my letter of July 7, 1971, is "cruelly out of date and does not reflect the contemporary and more enlightened attitude of society." It is noted that in your reference to paragraph 4f, SECNAV Instruction 1900.9 dated April 20, 1964, the following was omitted: "Whenever a higher character of separation is found to be warranted upon departmental review, such will be effected and command submitting case shall take pains to note all circumstances favorable to the individual which would affect the type of discharge to be awarded." Accordingly, we do not believe this paragraph, when considering its full mean ing and coupled with the total intent of the Instruction, encourages the issuance of undesirable discharges to homosexuals. At the time a person is separated from the military service he is furnished a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which reflects the type of discharge, reason and authority. A separation designator number instead of a narrative statement is used to reflect the reason for separation. This is done to afford the individual who receives a less than honorable discharge some protection from stigmatism which could result from words used to describe the reason for his discharge. The release of these separation designator numbers is closely monitored and provided only to governmental agencies indicating a "need to know." Accordingly, this information is not made a matter of public knowledge. I trust that the information provided will be of assistance to you. Your interest in matters pertaining to the military services is appreciated. Sincerely, LEO E. BENADE, Major General, USA, Deputy Assistant Secretary of Defense. HOUSE OF REPRESENTATIVES, Washington, D.C., January 7, 1972. Maj. Gen. LEO E. BENADE, USA, Deputy Assistant Secretary of Defense, DEAR GENERAL BENADE: I am writing to you with further reference to the question of homosexuals in the Armed Services. I thank you for the response which you sent and which I am enclosing. I assume from the reference to paragraph 4f, SECNAV Instruction 1900.9, that it is your intent that the Department of Defense whenever possible will provide an honorable separation as opposed to an undesirable discharge to homosexuals. I would appreciate being provided with the number of undesirable discharges issued as the result of homosexual activity each year for the last 5 years, and, if the records are available within that same period, the number of honorable discharges issued to homosexuals. With respect to the separation designator numbers and your belief that they are not a matter of public knowledge, may I tell you that they indeed are. Employment agencies are well aware of these numbers and as I am sure are many others. What purpose does it serve to place the designator number on the discharge when that information can be kept in the file? In view of that, I would ask you to consider reviewing a change in this area. Thank you for your interest in this matter. ASSISTANT SECRETARY OF DEFENSE, Washington, D.C., January 17, 1972. Hon. EDWARD I. KOCH, House of Representatives, Washington, D.C. DEAR MR. KOCH: This is in response to your letter of January 7, 1972, requesting additional information on the matter of homosexuals in the Armed Forces. The enclosed chart depicts, the administrative discharges isued for homosexual tendencies or sexual perversion during fiscal years 1967-1971. In regard to your comment regarding separation designator numbers (SDN) being public knowledge, it is re-emphasized that the Department of Defense does not make SNDs a matter of public knowledge. It should be noted that the purpose of DD Form 214 is threefold: (1) provides the recipient with a brief record of a term of net service during his current term of service, (2) povides various Governmental agencies with an authoritative source of information, and (3) provides the military service information for administrative purposes. The form serves a multitude of purposes and the elimination of data such as "reason for separation and authority" would drastically reduce the value and use of the document. For example, the elimination of SDNS from the data element "reason for separation and authority" on the DD Form 214 would cause a lengthy delay by the Veterans' Administration in determining an individual's eligibility for veterans' benefits inasmuch as a time-consuming search and review would have to be made of the veteran's record which is retired to the appropriate record center of the Service upon his discharge, While the Department of Defense is committed to a periodic re-examination of policies relating to the preparation of and the inclusion of data on the DD Form 214, no changes are contemplated concerning the elimination of SDNS from the document. I trust the information provided will be of assistance to you. Your interest in matters pertaining to the Armed Forces is appreciated. DEAR MR. KOCH: This is in response to your letter of January 28, 1972 regarding homosexuals. The administrative discharge statistics provided in my letter of January 17, 1972 represents the complete break out of data maintained by this office. Thank you for your letter. Sincerely, LEO E. BENADE, Major General, USA, Deputy Assistant Secretary of Defense. HOUSE OF REPRESENTATIVES, Washington, D.C., February 29, 1972. CONGRESSIONAL LIAISON, Department of the Navy, Washington, D.C. DEAR SIR: I am writing to you concerning RM3 Robert A. Martin, Jr., 157-407679, AF South Box 148, FPO New York 09524. In view of the gravamen of the charges against him and what the effect of a geenral discharge given for homosexuality will have on his career in the future, I believe justice requires that he be given a court martial, as he has requested, so that he might defend himself against the charges. 37-583-74-pt. 2—22 It was never intended, in my judgment, to permit discharges under less than honorable conditions as a way of allowing the Navy to avoid proving charges in a serious case. He is aware of the penalties that might flow from a conviction at a court martial which are greater in degree than those from administrative proceedings, and he is willing to take his chances because he believes he is not guilty of the charges. I would therefore appreciate your giving him the opportunity to defend himself in court and your advising me of the disposition of the matter. Sincerely, Maj. Gen. LEO E. BENADE, USA, EDWARD I. KOCH. HOUSE OF REPRESENTATIVES, Washington, D.C., January 28, 1972. Deputy Assistant Secretary of Defense, Department of Defense, DEAR GENERAL BENADE: Thank you for your letter of January 17th responding to my earlier correspondence concerning homosexuals in the Armed Services. Because the military's definition of "sexual perversion" includes more than homosexual acts between consenting adults it is impossible for one to interpret how many of those undesirable discharges, listed in your table of administrative discharges, were for homosexual activity between consenting adults. Only a comparison of honorable, general, and undesirable discharges specifically relating to homosexual activity between consenting adults would reflect the military's present policy towards this so-called "offense." If you have such specific figures, I would appreciate receiving them. It appears from your letters that the Department of Defense has no intention at this time of altering its present policy regarding homosexuals. While I do not want to prolong this correspondence endlessly, I do want to state that in my opinion your reason for refusing to eliminate SDN's from discharge-papers are not persuasive. If and when the Department of Defense conducts a "periodic reexamination of policy, I trust the elimination of SDN's will be approved, for indeed their meaning is public and their effects harmful. Sincerely, EDWARD I. KOCH. HOUSE OF REPRESENTATIVES, Washington, D.C., March 12, 1973. Maj. Gen. LEO E. BENADE, Deputy Assistant Secretary of Defense, Department of Defense, Washington, D.C. DEAR GENERAL BENADE: We had some correspondence in 1971 and 1972 concerning DOD discharge policy. In a letter to me of January 17, 1972 you stated that "In regard to your comment regarding separation designator numbers (SDN) being public knowledge, it is re-emphasized that the Department of Defense does not make SDN's a matter of public knowledge". Recently, a news reporter requested the list defining the Separation Program Numbers, which allegedly was unavailable. It was readily supplied to him by the Army. I understand, too, that companies are able to obtain this list and use it to evaluate an applicant for a job. I am most concerned that the information you gave me last year regarding this matter was misleading. I understood from you that this information is not available, that it is not a matter of public knowledge. Now, I know that you give it out to anyone who calls and requests it. And, that a person who has an individual's SPN number from his discharge papers can readily check this code list to see what that individual's separator designator number or separation program number signifies. I ask you to discontinue listing these numbers on the discharge papers. The numbers serve no purpose except to make more difficult or destroy the possibilities of an individual's obtaining a job. Sincerely, EDWARD I. KOCH. |