BY Kerry Eleveld
March 25 2010 2:50 PM ET
Secretary of Defense Robert Gates issued new guidelines Thursday aimed at decreasing the number of discharges under “don’t ask, don’t tell,” including an upgrade in the rank of who can initiate investigations into a service member’s sexuality and restricting what constitutes “credible information” and a “reliable” source for that information.
“I believe these changes represent an important improvement in the way the current law is put into practice,” said Gates, “above all, by providing a greater measure of common sense and common decency to a process for handling what are difficult and complex issues for all involved.”
Among other things, the new regulations raise the level of officers authorized to initiate investigations and approve discharges to that of a general or flag officer (i.e. admiral); they require that information from third parties be given under oath; and they place a higher level of scrutiny on who will be deemed a credible source.
Anyone who has a “motive to seek revenge” or “a prior history of conflict with that service member” might not be considered a “reliable person” under the new regulations, according to Jeh Johnson, general counsel for the Department of Defense.
Johnson, who answered questions following the press briefing with Gates and Adm. Mike Mullen, also noted that the new guidelines include no penalty for soldiers who choose not to report information they may have about a fellow service member’s sexual orientation or conduct.
Confidential information provided to lawyers, clergy, psychotherapists and other medical professionals will now be off limits in the course of an investigation.
Gates said the new changes were “unanimously supported” by Joint Chiefs of Staff chair Mullen and the corresponding service chiefs of the armed forces. The new regulations going forward will apply to all new cases, and cases that are open will need to be reinitiated.
“Every case that is currently still open will be dealt with under these new regulations, so they will be reinitiated by a flag rank officer,” Gates said, adding that people who are already in the process of being discharged can opt out of reopening their cases.
But how information that has already come to light in the course of an investigation will be used is still in question. If, for instance, a service member declared himself or herself to be gay during the proceedings, that constitutes evidence of one’s homosexuality in the eyes the law.
When Jeh Johnson was asked if such information could still be used once a case was reinitiated, even if causation for the original case did not meet the new standards, he did not have a definitive answer.
“That’s a good question — we have to work that through,” Johnson said.
Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, said he still thought some service members could be helped by having their cases reconsidered.
“We believe that some of our clients will benefit from the new standard articulated today,” he said. “But we’re still anxious and need more clarification on pending cases.”
The Defense Department did not respond immediately to an inquiry for further guidance on the matter.
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