Tips for Serving


This information is excerpted from Freedom to Serve: The Definitive Guide to LGBT Military Service. To download the full guide, click here

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With the repeal of Don't Ask, Don't Tell, gay and lesbians no longer have to hide their sexual orientation or risk losing their jobs. However, there are still a number of decisions that these service members must make and issues that they must face.

No Requirement to Come Out or to Serve Openly

Service members are not required declare their sexual orientation, and there will be no requirement to come out to anyone. With the repeal of DADT, gay and lesbian service members may choose whether they would like to come out, and to whom, and a service member will not be discharged simply for doing so. Service members may choose not to come out for a variety of personal reasons, including a fear of changed perceptions by coworkers, friends, and family, or a basic desire to keep their sexual orientation private. Other service members may feel that hiding their orientation creates more trouble, and they want to be open and honest about who they are. Gay and lesbian service members with partners or children might find that being open about their home life is necessary just to be able to carry on normal conversations (e.g., “Who takes care of your dog when you’re deployed?”). Furthermore, coming out may help to alleviate feelings of isolation and depression. And for some, being out is a matter of honor and integrity. What’s important is that service members now have a choice: they will not be discharged solely based on their sexual orientation, and the military will consider a service member’s sexual orientation as his or her personal and private matter.

For service members who do not wish to declare their orientation, DoD policies have provided some protection to respect their wishes. Neither DoD nor any of the services will create a data category for sexual orientation, and the services will not request, collect or maintain sexual orientation data as a matter of course, except where the information is essential to an investigation or other official action. While new DoD policies state sexual orientation is no longer a basis for administrative discharge actions, sexual misconduct, regardless of orientation, remains a basis for criminal or non-judicial punishment. Investigators assigned to these cases might request service members to disclose their sexual orientation if it is essential to the investigation. Service members may face false accusations of sexual misconduct from previous bad relationships, jealous love interests or others with a grudge against them. Service members accused of sexual misconduct should immediately seek assistance from a military defense attorney or an attorney at SLDN.

Being Publicly Out

As a guiding principal, all service members should be allowed to serve in the same manner regardless of sexual orientation. Service members’ choices to come out and serve openly are not supposed to affect the quality of their service or their privileges. Instead, LGB service members will be regulated by the same high standards of conduct applied to all service members in their situation.

Of course, choosing to come out is not always easy, even for civilians living in the most progressive environments. Some are concerned about how family and friends will react when they find out. Some fear rejection from their church. Some worry about harassment. Yet others are just figuring out their sexuality and aren’t ready to talk about it. It is a highly personal and sensitive choice, and service members should go at their own pace in deciding whether and when to come out, and who to tell.

Going to Gay-Oriented Events and Venues

Participating in gay pride parades and going to gay bars — if done in compliance with uniform regulations — was not prohibited under DADT. But many LGB service members refrained from such activity out of concern that it might lead to suspicions about their sexual orientation that could ultimately lead to a discharge. With repeal of DADT, service members can be assured that the mere act of attending pride or going to a gay bar will not be grounds for separation.

Pride Events: The same regulations apply to attendance of gay-focused events, rallies, and pride parades as to all public events. For pride events of a social or cultural nature, service members may attend and participate fully in a manner consistent with off-duty conduct expectations. In addition, service members may attend political activities when not in uniform and voice their personal opinions on political candidates and issues, in a manner as not to appear as a representative of the Armed Forces.

However, for events of a more political nature, service members must abide by their service regulations concerning participating in political activities, discussed below.

Gay bars: Service members may go to any bar they choose, including gay bars. The only caveat is that service members should check their command’s “off-limits establishments” designation list to ensure they do not violate any orders not to frequent a particular establishment. An establishment may be declared off-limits for a number of reasons, including known criminal activity, previous altercations involving service members, or other factors that affect good order and discipline. However, it is not appropriate to declare a gay bar “off-limits” solely because it caters to gay clientele. “Off-limits” orders restricting service members from going to gay bars should be reported to SLDN, and SLDN can address the situation directly with the individual command or with the service branch.

While at a gay bar (or anyplace else) a service member's conduct must conform to the rules. Activities that might be acceptable for a civilian might not be acceptable for a member of the United States armed forces. Both "indecent acts" and "indecent exposure" are prohibited by Article 120 of the UCMJ.

Attending Military Sponsored Events

Service balls, unit picnics and formal dinners are an important aspect of military life, promoting esprit de corps and celebrating joint or individual accomplishments. All service members should be able to participate fully in these military events without regard to their sexual orientation. If the event allows guests, then the service members should be free to invite their guest no matter their gender or sexual orientation. For example, if the Marine Corps Ball allows unit members to bring a date, then a gay service member should be allowed to bring someone of the same sex. Policies regarding public displays of affection and uniform requirements apply at military events. Additionally, service members will likely be responsible for the conduct of their guest, and their guest must conform to any rules the event imposes on all guests. SLDN can help address any issues regarding guest restrictions based on sexual orientation.

Deploying or Moving Overseas

Overseas assignments and deployments are not restricted based on a service member’s sexual orientation. However, some host-countries continue to have laws concerning homosexuality and homosexual conduct. Service members are supposed to be informed during deployment briefings and assignment notifications of the host-country laws and local military policies regarding homosexuality and homosexual conduct. Command sponsorship and overseas moves with dependents are discussed below in Benefits and Family Programs.

Finding Support Groups

The military community has created many resources to help service members who need support for professional or personal matters. The base’s Morale, Welfare, and Recreation (MWR) Center may have information on community or on-base support, depending on what kind of support service members needs. Service members experiencing family, relationship or military life issues can contact Military OneSource, a free counseling service provided by the DoD. Several LGBT organizations assist service members and may know of local support groups. A list of some organizations can be found in the resources section of this guide.

Standards of Conduct

The armed forces have many rules, regulations, policies and standards of conduct. Service members are responsible for complying with them, and all should be applied without regard to sexual orientation.

For LGB service members, understanding these regulations is particularly important. With the repeal of DADT, individuals who wish to target LGB service members may resort to misapplying sexual-orientation-neutral policies as a way of continuing to drum out LGB service members.

Addressing Harassment or Discrimination Based on Sexual Orientation

Service members perceived as gay may face harassment, threats and even violence. Service members who experience harassment based on their actual or perceived sexual orientation should contact an SLDN attorney immediately for assistance.

Harassment can take different forms, ranging from a hostile command climate filled with anti-gay jokes and comments to direct verbal and physical abuse to death threats. Military leaders have stated publicly that they do not tolerate harassment. In fact, the DADT Repeal Policy Guidance states “harassment or abuse based on sexual orientation is unacceptable.” Service members have the right to make complaints either through military channels or outside military channels about improper treatment or harassment.

Service members who are the target of harassment have some avenues within the military to try to stop the harassment, discussed below. Service members facing the threat of immediate physical harm may also report the threat directly to the military police. Although some chaplains have been outspoken in their opposition to gay military members as a matter of policy, if a military’s member’s physical safety is at risk, that is another matter. Chaplains can offer a safe space, especially on deployed ships, where there may be nowhere else to go. Some of the more common complaint procedures are:

Command Complaint: Generally speaking, service members should try to use their chain of command to address issues before attempting to make complaints through other channels. If a service member’s chain of command is part of the problem or condones the harassment, then the service member may need to use other methods to report the mistreatment.

Equal Opportunity (EO) Complaint: Each branch of the service has military equal opportunity (MEO) offices or officers to handle complaints of race- and gender-based discrimination and harassment. Any service member experiencing harassment or “sex stereotyping” can make a complaint to their MEO office. However, up to this point, sexual orientation discrimination is not considered a matter for MEO office. 

Inspector General (IG) Complaint: Service members may complain to the inspector general of their base, service, or the DoD about harassment or violations of regulations. Once they are made, the handling of complaints is generally out of service members’ hands. The inspector general’s office does not itself have the power to correct problems, but its findings and recommendations may induce action by a command.

“Writing Up”: Service members can ask their commands to take disciplinary action against other members who violate the UCMJ or punitive regulations. Requests are normally made in writing. Service members cannot demand that offenders be disciplined; it is up to the command to decide whether to take any action. Another practical reality is that a junior service member who attempts to place a senior service member “on report” may face retaliation by the senior member in ways that are hard to prove—i.e., bad work assignments, weekend duty, assignments to work details etc.

Article 138 Complaint: Article 138 of the UCMJ permits service members to seek redress of a grievance against their commanding officer. Service members may attempt to use this method to right any wrong they feel they have faced, whether or not a law or regulation has been violated. These complaints usually begin with a letter to the commander asking for specific redress (an apology, a training session about the military’s policies against harassment, a transfer to get away from harassment etc.). If the commander doesn’t grant the request in a reasonable time, a formal complaint may be made to any commissioned officer, superior to the commanding officer, who shall forward the complaint to the officer exercising general court-martial convening authority over the commander. That officer must act on the complaint and report the matter to the Secretary of the Service.

Congressional Inquiry: Members of the military have the right to communicate with their Members of Congress and to ask their help in resolving problems with the military. They do not need command permission to do so, and need not notify their commands. In some cases, congressional inquiries are no more than an exchange of letters between a congressional aide and a liaison officer at the service’s headquarters. When presented with concrete evidence and asked for specific types of assistance, however, sympathetic Members of Congress can urge the services or local commands to take action about violations of antidiscrimination or other policies.

Media/Press: Complaining to the press, and using its ability to influence the military, should be done only with legal counsel and only as part of a well thought out strategy to redress a wrong. The decision to go to the media is not to be taken lightly and should generally be considered only after other avenues of redress have been tried. While the press can be influential, once the story is in the media, there is little the service member can do to control it. In addition, the service member may be ordered to not communicate with the press after the initial story runs. In these cases, a civilian attorney can represent the service member’s interests to the press to protect the service member from getting into trouble for disobeying an order.

If a service member is considering making a complaint, he or she should contact SLDN for assistance. An SLDN attorney can help decide the best way to route the complaint, encourage the command or the service to treat the complaint seriously and help protect against retaliation for making the complaint.

In general, it is helpful for service members to document harassment when it occurs. Service members should write down as clearly as possible the facts: what occurred, including the date, time and place of the incident, the name or description of each harasser and the names of any witnesses who observed the harassment. If service members receive a threatening note, they should handle it as little as possible and place it in a zip-lock bag or other container that will preserve it. Graffiti which may be easily erased, such as anti-gay epithets written on wipe boards or chalk boards, should be photographed and witnessed by a second person. Service members should also, if possible, take photos of any destruction of property they experience or ask people who are trustworthy to look at the destruction so that there are witnesses to it. In addition, service members should make and keep copies of their documentation and any other information they receive.

Service members who report anti-gay harassment should consider asking their commands not to reveal the nature of the harassment to other service members. Revealing that a service member has been harassed because he or she is perceived as gay is likely to create and fuel rumors that might further jeopardize the service member’s safety, even if the service member is not actually gay. In some cases, it might be valuable to reveal the nature of the harassment, as there is an Executive Order that permits prosecutors in crimes motivated by anti-gay animus to enhance the sentence for the underlying crime as a hate crime.

Important information to include when reporting harassment:

Physical Harassment and Property Damage Can Be a Reality

After Private Mark Dennis was outed to his command by his online profile, he started to experience significant harassment from other soldiers. This included vandalism of his car resulting in significant damage, including slashing of the interior, defacing the car with anti-gay graffiti, barricading access to it, and contaminating the gas tank. SLDN assisted Private Dennis in reporting the incident to his command and filing a successful claim with the Army to recover his out-of-pocket expenses related to the repair of his car.

Normally, complaints cannot be used to stop discharge proceedings or disciplinary actions, though they can be useful in bringing the military’s attention to problems in those proceedings. Sometimes commands take a second look at discharge or disciplinary proceedings if they realize that the proceedings are tied to improper or illegal actions.

Addressing Harassment or Discrimination Based on Gender

The previous section dealt with harassment and discrimination based on a service member's sexual orientation — gay, lesbian, straight or bisexual. If you feel you are being harassed or discriminated against because of your gender — male or female — you should report it to the MEO office. Remember that you can be the victim of sex harassment or discrimination at the hands of a person who is the same gender as you.

Whom You Can Talk to About Your Sexual Orientation

With the repeal of DADT, service members can talk about their sexual orientation with anyone they want without fear of losing their ability to serve. However, service members may wish to be out to only a few people or wish to have more control over how widespread knowledge of their sexual orientation becomes in their unit. Therefore, service members should be aware of the protections they have when speaking to others about their sexual orientation.

Protection Against Retaliation

Service members who face retaliation for making complaints often have protection under the Military Whistleblower Protection Act (10 U.S.C. § 1034 and DoDD 7050.6, Military Whistleblower Protection (2000)). Under the Act, service members who make certain types of complaints are entitled to prompt IG investigations of any adverse personnel action of threatened adverse personnel action taken to retaliate for their complaints. In addition, if the retaliation results in formal adverse action, service members are also entitled to expedited proceedings before the Board for Correction of Military Records (BCMR) or Board of Correction of Naval Records (BCNR), depending on the service.

Whom You Can Talk to About Your Sexual Orientation

With the repeal of DADT, service members can talk about their sexual orientation with anyone they want without fear of losing their ability to serve. However, service members may wish to be out to only a few people or wish to have more control over how widespread knowledge of their sexual orientation becomes in their unit. Therefore, service members should be aware of the protections they have when speaking to others about their sexual orientation.

Privilege v. Confidentiality

While often used interchangeably in practice and conversation, privilege and confidentiality are two different concepts concerning the protection of information from disclosure. Confidentiality refers to an affirmative duty of a party to not disclose information they have received. On the other hand, privilege refers to an exemption from a normal duty to disclose information. Generally, a person must not disclose confidential information and cannot be compelled to disclose confidential information.

Chaplains

Chaplains are an important resource for service members. While the DoD Directives concerning appointment of military chaplains do not explicitly address issues of confidentiality, the regulations for the individual services may provide some protections. For example, the Army advises service members to speak with chaplains as a confidential resource, and an Air Force regulation states that “Chaplains will not disclose confidential communications in private or in public.” The chaplain’s denomination may impose additional obligations on the chaplain preventing disclosure of conversations.

The Military Rules of Evidence makes conversations with chaplains privileged when service members seek their spiritual guidance. However, there is no privilege when service members speak to chaplains for reasons other than spiritual guidance. What constitutes spiritual guidance is not always clear. Conversations about a service member’s sexual orientation may not be considered spiritual guidance depending on the religious views of the chaplain’s denomination.

Chaplains have a duty to care for all service members. However, chaplains are not required to take actions inconsistent with their religious beliefs when conducting their religious ministry.

If service members want to speak with military chaplains about issues surrounding sexual orientation, they should investigate what their chaplain’s religious denomination says about homosexuality, ask the chaplain if the conversation is confidential and then cast the conversation in a spiritual light. This can help ensure a higher chance that the conversation is confidential.

Healthcare Providers (Doctors, Dentists, Nurses, Therapists etc.)

Military health care providers are required to keep individually identifiable health information confidential except when the information is necessary for treatment, for judicial and administrative proceedings, or where disclosure is otherwise required by law.

Anything service members reveal to military health professionals may be used by commands to investigate and/or discharge them. There is a very limited psychotherapist-patient privilege, added to the UCMJ in 1999, that may prevent disclosure of information during court-martial that a service member shares with a psychotherapist or an assistant. However, this privilege applies only in the criminal context and not in the administrative separation process. There is no doctor-patient privilege in the military criminal justice system.

Military commanders may request access to the medical records of service members when necessary to assure fulfillment of military missions. Military health information may be disclosed to commanders to determine the service member’s fitness for duty, compliance with standards and orders, or to carry out any other mission-necessary activity. Commands are unable to request a service member’s medical records solely to find information on the member’s sexual orientation because policies forbid the use of sexual orientation as criteria in any mission, assignment or duty determinations. However, because commands may still have access to such information when checking the service member’s records for other mission-related reasons, service members may wish to be careful of information provided to military health professionals if the member does not wish to be out to their command.

Due to the lack of full confidentiality with military health care providers, many service members seek medical and mental health treatment in the civilian community. Service members who choose to be treated by civilian practitioners should be aware that the services have regulations which require members to report that they have received medical or mental health treatment outside the military medical system. Should the military learn of such treatment and the member has not reported it, the member may face UCMJ punishment for failure to obey an order or regulation. If a service member lies about receiving treatment, he or she is at risk of violating the UCMJ by making a false statement.

During security clearance investigations, service members are often asked to identify their civilian mental health providers and the reason for treatment on security clearance questionnaires. Investigators will sometimes press service members to sign an authorization form allowing them to question health care providers. Refusal to allow this access may result in the service member not receiving a security clearance. Investigators occasionally have questioned providers without first seeking service members’ authorization. Most civilian mental health professionals refuse to answer such questions, but service members should speak with their civilian providers before starting treatment to verify that their conversations are confidential and will not be revealed to security clearance investigators or to the military without their permission.

Lawyers

Generally, information acquired by attorneys from their clients is confidential and protected by attorney-client privilege. However, some limited circumstances may prevent a service member's conversation with an attorney from being protected. For example, attorneys are not supposed to keep confidential any threats by their client to kill or maim another person. Under certain circumstances, the presence of a third person during a conversation may keep it from being confidential.

Defense attorneys have ethical obligations to be zealous advocates for their clients and will keep client information confidential, but not all military attorneys are defense attorneys. Command legal officers and prosecutors (also known as “trial counsel”), for example, have no obligation to keep conversations with service members confidential. Anything service members say to these officers can be used against them. Therefore, service members should never talk to any military attorney about their case without asking two key questions: "Are you a defense attorney?" and "Is our conversation confidential?" If the answer to both questions is "YES" then the service member knows the information they give the attorney will be kept confidential. If the answer to either question is “NO” then the service member should understand that there is no confidentiality protection and the conversation may be relayed to a third party.

Civilian attorneys also have a duty of confidentiality and must keep conversations with service member clients confidential, unless the service member gives them permission to do otherwise. If a service member is not sure whether they are a client, they should ask the attorney and make sure their conversation will be held in confidence.

Spouses

Private conversations between spouses are privileged except in a very limited number of situations. A spouse may choose to not testify about private marital conversations and can also prevent a spouse from testifying about those conversations.38 While one spouse can prevent another from testifying about a private conversation, a spouse is free to reveal information about private conversations in any other situation, even to complete strangers. Because of DOMA, this privilege does not apply to same-sex spouses. However, the privilege does apply to previous and current opposite-sex marriage.

Others Without Privilege or Confidentially Protection

Service members will work and socialize with a variety of people during their military careers. A sense of camaraderie will often lead service members to share their personal and private matters with co-workers, supervisors and subordinates. This openness is often good for creating lasting relationships, but service members should be aware that there are no protections to prevent others from sharing this information other than a mutual respect for privacy. Service members who choose to disclose their sexual orientation to their Chain of Command, battle buddies, family or friends should understand that there is no privilege or confidentially protection. However, misuse of this information could be a form of harassment or lead to discrimination, and service members experiencing issues with malicious disclosure of their private information should seek redress through the normal channels. See the previous sections on addressing harassment or discrimination.

Privacy and Cohabitation

Independent of DADT or its repeal, the DoD Unified Facilities Criteria is working towards securing better privacy by requiring new housing construction to afford service members a private bedroom and a bathroom shared by no more than one other service member. While the military attempts to accommodate the privacy needs of service members, military life and necessity sometimes require living in environments with little to no privacy. Units will assign living quarters based on the needs of the service, but will not ask for or use a service member’s sexual orientation in making any housing decisions.Units will not segregate service members based on sexual orientation. Service members are expected to respect the privacy of fellow service members and to live in their assigned quarters. Any problems with assigned roommates should be addressed through their command, but the command will not grant reassignments solely because of sexual orientation or personal views of sexual orientation. If service members are experiencing housing difficulty based on their actual or perceived sexual orientation, they should contact SLDN immediately for assistance.

Service members may be eligible to live either in base family housing, if available, or off base depending on their number of dependants and rank and number of dependants. Those authorized to live in family housing because of legal dependants (children, opposite-sex spouse, parents) are normally not allowed to have non-family members live in the housing unit. Bases may have local policies that allow for child-care providers to live in base housing, and service members with same-sex spouses should contact their gaining unit for more information on these policies. If a service member is authorized to live off base, there is no restriction on the people with whom the member may share housing. For more information on military housing, please see the “Benefits and Family Programs” section of this Guide.

Wrongful Cohabitation

Wrongful Cohabitation is an offense that falls under Article 134 of the Uniform Code of Military Justice (UCMJ). The Manual of Courts Martial defines Wrongful Cohabitation as two people openly and publicly living together as husband and wife and holding themselves out as husband and wife without actually being married. Because DOMA prevents the military from recognizing same-sex marriages as valid, service members are concerned they may come under this article. A necessary element of the charge is living together as “husband and wife,” which is not possible when dealing with same-sex partners. Because this necessary element is missing, SLDN does not believe that Wrongful Cohabitation in its current form applies to same-sex relationships. However, SLDN is watching for policy changes post-repeal that may alter what constitutes Wrongful Cohabitation. Service members concerned about this matter are encouraged to contact an SLDN attorney.

Political Activity

Service members may attend political activities, vote and voice their personal opinions on political candidates and issues. Service members may attend political fundraising activities, meetings, rallies, debates, conventions or activities as spectators when not in uniform and when no inference or appearance of official sponsorship, approval or endorsement can reasonably be drawn. Service members may not participate as more than spectators in partisan political events; these events are those that advocate for a particular candidate, political party or a cause identified with a particular party. This restriction applies even if service members are in civilian clothes and there is no appearance of official endorsement.

A service member may:

A service member may not:

Service members who are uncertain whether a particular activity is covered by DoD policy should contact SLDN for help.

Social Media and Public Profiles

With the repeal of DADT, gay and lesbian service members are not barred from being out in public profiles on sites like Facebook. In the same way that others in the unit can use social media tools to connect, share photos and keep track of friends, LGB service members can do so without the constant threat that they will be discharged if their profile is discovered. The governing principle is that all sexual-orientation-neutral regulations that govern conduct exist for online behavior: if an act violates PDA rules, positing a picture of that act violates PDA rules as well; political activity online is limited in the same way.

Because of benefits to recruiting, morale and communications, service members may use government computers to access social media websites like Facebook or Twitter for both official purposes and limited personal use when authorized by the work center. However, service members may not use government systems to visit sites that reflect poorly on the DoD. For example, service members may not gamble or view pornography of any kind when using their work computer. Local command policies regarding acceptable personal use should be applied without regard to sexual orientation. If the command allows the use of social or dating websites, then there should be no restrictions on visiting gay social or dating websites. Before visiting sites for personal use, however, military members should research and understand their commands’ policies.

Sexual-orientation-neutral regulations applying to service members’ off-line conduct apply to their actions on-line. Just as a base or service can place certain items or places off-limits, they can also place certain internet sites off limits. Additional restrictions may apply if service members are using their own computers either during duty hours or connected to a government network. In these cases, service members should contact their supervisor or network administrator to see what restrictions are in place for personal computers.

Policies concerning the appropriate use of computers apply equally to phones. If a phone is internet-capable, such as an iPhone, Blackberry or Android device, service members should practice the same care they would with a computer when using the phone to access the internet.

When using any system owned by the government or connected to a government network, service members’ activities may be monitored. Service members who wish to continue serving in the closet should be aware that others may be able to observe their online conduct when they are accessing a government network or system.

Service members must maintain operational security when using any information system or social network. Units should provide guidance on what information may or may not be shared publicly, but a good rule of thumb is to treat everything posted to a social network as public and not to disclose unit strength, mission or travel information. For example, a service member leaving for training should not post on Facebook that their unit is flying out tomorrow night at 2130.

Pornography

In most cases, there is no issue with service members purchasing, possessing, or viewing legal pornography. However, the unique demands of the military do create limitations on a service member’s ability to have pornographic materials. Services may restrict members from possessing pornography while in training status. Pornography is forbidden on government computers or networks. Military commissaries and exchanges may not sell or rent pornographic materials. Members of the military may not appear in pornography.

Members serving overseas or in deployed locations may be subject to additional area of responsibility orders restricting use of pornography. For example, General Order Number 1 forbids pornography in deployment locations under the control of U.S. Central Command. Host country laws may create additional restrictions on the types of pornographic materials permissible within a host country.

Security Clearance Regulations

Throughout the era of DADT, many service members were caught between their desire to be completely honest during the security clearance process and their belief that DADT required them to keep parts of their lives a secret. With repeal, LGB service members will never again need to fear that their honesty during a clearance interview or application will endanger their career. The only rule of thumb service members need to remember during the security clearance process is: DO NOT LIE.

In fact, even under DADT, LGB service members could reveal their sexual orientation during a security clearance interview without the risk of losing their jobs. Under President Clinton's May 1995 Executive Order and resulting policy changes, questions about sexual orientation or same-sex sexual activities are improper and should not be asked unless they become relevant to resolve a legitimate national security concern. Legitimate security concerns include sexual conduct, whether heterosexual or homosexual, that "could make an individual susceptible to exploitation or coercion, or indicate a lack of trustworthiness, reliability, or good judgment that is required of anyone with access to classified information."

Some investigators, however, do ask questions concerning sexual orientation and same-sex relationships. The basic security clearance questionnaire asks whether or not you have a “cohabitant,” by which is meant a person with whom “you share bonds of affection, obligation, or other commitment, as opposed to…a roommate.” Service members in relationships with foreign nationals are especially at risk because relationships with foreign nationals are seen as an independent risk to gaining or retaining a security clearance.

Security clearance investigators should not reveal information about service members' sexual orientation or activities obtained during security clearance interviews to the service members’ commanders. According to the regulations governing security clearance investigations, if the information is given to the commanders, those commanders are not supposed to use this information as a basis for adverse administrative action. 

HIV/AIDS Regulations

As discussed above, the repeal of DADT does not change any of the regulations in place relating to HIV/AIDS or any other sexually transmitted disease. Members of the military who have tested positive for HIV or have been diagnosed with AIDS face different career outcomes depending on their service status. HIV+ persons are prohibited from enlisting in the armed forces.

Service members are periodically tested for HIV, and those who test HIV+ while on active duty are allowed to continue serving, so long as they remain healthy (i.e., “medically fit for duty”). Active duty service members who test HIV+ generally may remain in the military, but, as discussed below, face restrictions on their duty assignments and must abide by certain orders and programs. HIV+ service members are provided medical treatment, and their health status is supposed to be, and usually is, treated confidentially. Active duty HIV+ members may face assignment limitations due to their status and are restricted to assignment within the continental United States and Hawaii, Alaska and Puerto Rico. Additionally, service members are assigned to units not normally deployable, and the service member is not eligible for deployment orders.

HIV+ members are given formal, written “safe sex” orders requiring them to disclose their HIV status to all persons prior to having sexual relations, as well as to always use condoms. Violation of this order may result in the service member’s criminal prosecution under Article 92 of the UCMJ (violation of an order or regulation) or Article 128 (assault with a means likely to inflict death or great bodily harm). Service members testing HIV+ should seek guidance from SLDN or an attorney experienced in military law.

Whether an active duty service member remains in the military after testing HIV+ is primarily dependent upon the service member’s health status. Active duty personnel who show symptoms of any HIV-related condition are evaluated for medical fitness and, if found unfit for duty, are medically separated from the service. Service members who are medically unfit with at least a 30% disability rating (using the Department of Veterans Affairs “Schedule for Rating Disabilities”) will likely be medically retired (i.e., retired from active duty with a pension along with access to military health care facilities). Service members who are medically unfit with less than a 30% disability rating usually receive a one-time disability severance payment rather than disability retirement. These members are then eligible for limited health care through VA medical facilities. In addition, HIV+ active duty service members who are fit for duty may request an administrative separation from the service, but the services are not obligated to approve the request.

Reserve and National Guard service members who test HIV+ are treated differently than those service members testing HIV+ while on active duty. HIV+ Reserve and National Guard members are usually separated from the service, without opportunity to apply for disability retirement, unless they are eligible to transfer into an available “non-deployable” billet or they are granted a waiver. There are relatively few “non-deployable” billets in the National Guard and Reserves, as most National Guard and Reserve billets are required to be available for overseas deployment when activated.

Service members who test HIV+ must go through a vigorous contact tracing process either conducted by military health care workers or by a civilian agency if a member tests positive through screening by a civilian agency. During the contact tracing process, health care workers ask HIV+ service members for names of sexual partners and others who may have been exposed to HIV by the positive service member. Even if a civilian agency performs the required contact tracing the military will sometimes perform their own contact tracing evaluation. The information provided by the HIV+ service member during this epidemiological assessment is not supposed to be used against that member in personnel or legal actions. DoD has implemented a policy prohibiting “adverse personnel actions” against those testing HIV+ (including involuntary administrative discharge, court-martial, or unfavorable entries in personnel record) based solely on information obtained during contact tracing.

Service members testing HIV+ may also face harassment. Although military regulations require confidentiality of HIV test results, limiting knowledge of HIV+ status to those that need to know within the military, in reality, HIV+ test results often become widely known.  Such medical privacy violations may cause embarrassment and even lead to harassment of HIV+ service members. If a service member’s health information becomes known and leads to harassment or discrimination, contact an SLDN attorney immediately for assistance.

Important Information for HIV+ Service Members

Seeking Medical Attention

All service members, regardless of sexual orientation, are eligible for treatment at a military Medical Treatment Facility (MTF). A service member’s sexual orientation or history of same-sex sexual conduct will not preclude the service member from medical treatment or preventative medicine programs. However, DoD has adopted FDA guidelines for blood and tissue donations. Under current FDA guidelines, a man who had sex with other men (MSM) is permanently disqualified from donating blood. Women who had sexual contact with MSMs may not donate blood for a year after the contact. This policy only applies to the donation of blood, and not the receipt of blood. A MSM may receive blood when treated in a MTF, but they may not donate blood even to another MSM.

Military health care providers must protect individually identifiable health information from disclosure except when the information is necessary for treatment, for judicial and administrative proceedings, or where disclosure is otherwise allowed by law. Military commanders may request access to the medical records of service members when necessary to assure fulfillment of military missions. Military health information can be disclosed to commanders to determine the service member’s fitness for duty, compliance with standards and orders, or to carry out any other mission-necessary activity. Commands are unable to request a service member’s medical records solely to find information on the member’s sexual orientation because policies forbid the use of sexual orientation as criteria in any mission, assignment, or duty determinations. However, because commands may still have access to such information when checking the service member’s records for other mission-related reasons, service members may wish to be careful of information provided to military health professionals if the member does not wish to be out to their command. For more information on protections for medical information, see the Speaking with Healthcare Providers section of this Guide.

Many service members seek medical and mental health treatment in the civilian community. Service members who choose to be treated by civilian practitioners should be aware that the services have regulations which require members to report that they have received medical or mental health treatment outside the military medical system. Should the military learn of such treatment and the member has not reported it, the member may face UCMJ punishment for failure to obey an order or regulation. If a service member lies about receiving treatment, he or she is at risk of violating the UCMJ by making a false statement.

Seeking Pastoral Care

The U.S. military includes men and women of many religions, as well as non-believers. The military chaplaincy reflects this diversity, including chaplains who represent different religious organizations in the Army alone.

A chaplain, therefore, “[s]hall serve a religiously diverse population.” For a person to be considered for appointment as a military chaplain, a religious organization must certify that he or she “is willing to function in a pluralistic environment, as defined in this Instruction, and is willing to support directly and indirectly the free exercise of religion by all members of the Military Services, their family members, and other persons authorized to be served by the military chaplaincies.” Religious organizations that choose to participate in the Military Chaplaincies recognize that military commanders are required to provide comprehensive religious support to all authorized individuals within their areas of responsibility. The Department of Defense has emphasized that, with the repeal of DADT, "the duty to care for all will not change."

Military chaplains, like other members of the armed services, may freely exercise their religious beliefs. Chaplains, in the context of their religious ministry, are not required to take actions inconsistent with their religious beliefs. Therefore, when a chaplain conducts a denominational service, the chaplain must to adhere to and preach fundamental teachings of the religion.

Service members often seek counseling or moral support from chaplains who are not of their own religion, simply because there is no other chaplain available. Military chaplains are required to provide such services to all service members. In this situation, a chaplain may not criticize the service member’s religion or denigrate the service member on the basis of gender, race, religion or sexual orientation even if that is part of the chaplain’s beliefs.

At the same time, the chaplain’s obligation to his religion would preclude him from saying anything that appears to be supportive of service members whom his religion condemns. In fact, the chaplain’s endorsement should be withdrawn should the chaplain minister in a manner inconsistent with the tenets of his religion. If the chaplain cannot provide what the service members needs because of the chaplain’s own beliefs, then the chaplain’s obligation would be to help that service member find a religious resource, whether it is another chaplain or a lay-leader, who can provide that service member with the needed support.

Veterans Administration Benefits

Eventually, service comes to an end and members begin the transition from military service to civilian life. Regardless of sexual orientation, service members leaving active duty service should be eligible for Transition Assistance Programs to help them prepare a resume, look for new careers or apply for more education. Service members may also be eligible for a host of additional benefits that they have earned through their service. For a listing of some of these benefits, please see the “Benefits and Family Programs” section of this guide. While current law restricts the eligibility of same-sex spouses for some benefits, veterans themselves should never be denied any benefit due solely to their sexual orientation. Veterans denied benefits based on sexual orientation should contact an SLDN attorney. While a veteran’s service may have ended, SLDN’s commitment to that veteran continues.

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