DOD Limits Discharge Authority

Secretary of Defense Robert Gates issued a memo Thursday stipulating that "don't ask, don't tell" discharges could be processed only if they received the "personal approval" of the secretary of the corresponding department in consultation with the undersecretary of Defense for Personnel and Military Readiness and the general counsel of the Department of Defense.

Given the "legally uncertain" environment, a senior defense official who is also a lawyer explained to reporters, "We wanted the separation authority in the hands of fewer people ... who are on top of the situation legally as it is developing."

The October 21 memo signed by Gates stated that the new regulations were "effective immediately and until further notice." At present, discharges will now require the approval of a service secretary from one of the military's three departments who would consult with Defense undersecretary Clifford Stanley and general counsel Jeh Johnson, effectively putting the entire separation process in the hands of five political appointees. "These functions may not be delegated," Gates wrote.

In the past two weeks, the Pentagon has been grappling with how to handle a court-ordered suspension of the policy and now a temporary stay of the suspension that may or may not extend beyond next week depending on the assessment of the ninth circuit court of appeals.

The defense official said he could not predict whether the new procedure would reduce the number of discharges under "don't ask, don't tell" and a second senior-level official added that the move was "not designed" to constrain separations. Instead, the first official stressed, the new guidance was intended "to ensure uniformity and care in the enforcement of this law," as stated in Gates's memo.

"The law is in effect," the first official told reporters. "That is not intended to be a substantive change in the decision making -- you should not interpret that as, we're going to separate more or less individuals."

The new guidance included nothing specific to recruiters, but the defense official said he expected those instructions would "come together" soon in response to the memo. One thing that became clear during the injunction, he added, was "the fact that if this law changes suddenly like that, the first place where you're likely to see an issue is in recruitment -- at the recruitment center."

In terms of the intervening eight days when suspension of the policy was in place, the official said he was not aware of any new cases that had developed during that time but could not definitively say that none had.

He noted that Stanley had cautioned service members against "altering their personal behavior" during the fluid environment.

"My sense of things is that a lot of people heeded the advice of the legal organizations that are out there and did not disclose their sexual orientation," he said of that time period.

How the new regulations will affect cases already in process remains an open question. "I am not intimately familiar with the pipeline of cases," he said. "They will evaluate each case one at a time. It will depend on where the case is in the pipeline."