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LEGAL ISSUES. Captain Greg Weiss Chief, Military Justice Telephone: 242-6394. AGENDA. Fraternization Homosexual Conduct Policy Ethics Military Justice. FRATERNIZATION. FRATERNIATION. REFERENCES (Punitive in nature): DLIFLC & POM Command Policy, 12 April 2002.

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Legal issues
LEGAL ISSUES

Captain Greg Weiss

Chief, Military Justice

Telephone: 242-6394


Agenda
AGENDA

  • Fraternization

  • Homosexual Conduct Policy

  • Ethics

  • Military Justice



Fraterniation
FRATERNIATION

  • REFERENCES (Punitive in nature):

  • DLIFLC & POM Command Policy, 12 April 2002.

  • Army Regulation 600-20, Army Command Policy, 15 July 1999.

  • TRADOC Regulation 350-6, Enlisted Initial Entry Training (IET) Policies and Administration, 3 July 2001.


Fraternization1
FRATERNIZATION

Definitions:

  • Initial Entry Training (IET) Student

  • Carrerist Student

  • Permanent Party

  • Improper Relationships


Fraternization2
FRATERNIZATION

  • General Prohibition:

  • Compromises the integrity of the chain of command.

  • Preferential treatment

  • Improper use of rank or position for personal gain

  • Exploitative or coercive in nature

  • Adverse impact on good order, discipline,authority, morale, or the ability of the command to accomplish its mission


Fraternization3
FRATERNIZATION

Specific Prohibitions:

  • Enlisted Permanent Party Personnel:

    • Any Military or Civilian employee in their supervisory chain of command

    • Any Officer

    • Any IET Student

  • Officer Permanent Party Personnel:

    • Any Officer or Civilian Staff in their supervisory chain of command

    • Any Enlisted member (IET Student, Careerist Student, School Staff or Permanent Party)


Using government resources
USING GOVERNMENT RESOURCES

  • Equipment

  • Communications

  • Time

  • Personnel

  • Vehicles

  • Government Position

GOV


Department of defense homosexual conduct policy

Department of DefenseHomosexual Conduct Policy


Homosexual conduct policy
Homosexual Conduct Policy

  • Implements 10 U.S. Code § 654

  • Implements DoD Policy, DoD Directives 1332.14; 1332.30

  • Policy is a balance between the legal prohibition of homosexual conduct and the privacy rights of servicemembers


What does the law say
What does the Law Say?

  • “A member of the Armed Forces shall be separated if one of the following findings is made:

    • “the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts,”

    • “the member has stated that he or she is a homosexual or bisexual, or words to that effect,”

    • “the member has married or attempted to marry a person known to be of the same sex.”


What are the limits on inquires into homosexual conduct

What are the Limits on Inquires into Homosexual Conduct?”

Applicants for enlistment will not be asked or required to reveal their sexual orientation.

Applicants for enlistment will not be asked if they have engaged in homosexual conduct.

Only a service member’s commander is authorized to initiate fact finding inquires involving homosexual conduct.

A commander may initiate a fact-finding inquiry only when he or she has received credible information that there is a basis for discharge.


What happens if a service member tells others that he she is homosexual or a bisexual
What Happens if a Service member Tells Others that he/she is Homosexual or a Bisexual?

  • If a service member makes a statement that he or she is a homosexual or bisexual, or makes other statements indicating a propensity to engage in homosexual acts, the commander may initiate an inquiry to determine whether that member should be discharged.

  • Discharge is not required if it is determined that the service member made the statement for the purpose of avoiding or terminating military service.


Credible information
Credible Information Homosexual or a Bisexual?

  • A statement by a reliable person that a service member has:

    • engaged or solicited another to engage in a homosexual act or said that he/she is homosexual or bisexual

    • observed or heard the service member make any other statement that a reasonable person would believe was intended to convey that the service member has a propensity to engage in homosexual acts

    • observed behavior by a service member that amounts to a non-verbal statement that the service member is homosexual or bisexual.


What is not credible information
What Is Not Credible Information? Homosexual or a Bisexual?

  • Rumors, suspicious, or capricious claims that a service member is homosexual

  • Others opinions that a service member is homosexual

  • Going to a homosexual bar, reading homosexual publications, associating with known homosexuals or marching in homosexual rights rallies in civilian clothes

  • Reports by a service member of being harassed on the basis of perceived sexual orientation


What are grounds for a fact finding inquiry
What are Grounds for a Fact-finding Inquiry? Homosexual or a Bisexual?

  • Credible information must exist.

  • A commander must have a reasonable belief that a service member has:

    • Engaged or solicited to engage in a homosexual act

    • Stated that he or she is a homosexual or otherwise indicated a propensity to engage in homosexual conduct

    • Married or attempted to marry a person of the same sex


Substantial investigation
Substantial Investigation Homosexual or a Bisexual?

  • The initiation of any substantial investigation into whether a service member stated that he/she was homosexual or bisexual for the purpose of avoiding or terminating military service must be approved at the Service Secretary level.

  • Definition of substantial investigation: Any investigation that extends beyond questioning the member, individuals suggested by the member for interview and the member’s immediate chain of command.


Zero tolerance for harassment
Zero Tolerance for Harassment Homosexual or a Bisexual?

  • Definition: Derogatory, abusive, threatening or annoying behavior directed toward an individual or group.

  • Possible types of harassment

    • Verbal (on or off duty)

    • Jody calls regarding homosexuals

    • Derogatory, abusive, threatening or annoying language or references about homosexuals

    • Graffiti in latrines, bulletin boards, etc.

    • Anonymous threats; telephonic, electronic, etc.


Harassment Homosexual or a Bisexual?

  • All servicemembers will be treated with dignity and respect and will be afforded a safe and secure environment in which to live and work.

  • Harassment of servicemembers for any reason, to include perceived or alleged homosexuality, will not be tolerated.

  • Commanders at every level will take appropriate action to prevent harassment of or threats against any member of the Armed Forces.


What can a service member do if threatened harassed or accused of being homosexual
What Can a Service member Do If Threatened, Harassed or Accused of Being Homosexual?

  • Report harassment at once to the commander

  • Commanders will take appropriate action to protect the safety of servicemembers who report threats or harassment.


Who can a soldier talk with confidentially
Who Can a Soldier Talk with Confidentially? Accused of Being Homosexual?

  • Legal Assistance Attorney

  • Chaplain


Summary
Summary Accused of Being Homosexual?

The challenge to commanders and leaders is to enforce the statutory ban on homosexual conduct in the military while respecting the limits that the policy places on investigations of such conduct.


Ethics
ETHICS Accused of Being Homosexual?


Using government resources1
USING GOVERNMENT RESOURCES Accused of Being Homosexual?

“Employees shall protect and conserve Federal property and shall not use it for other than authorized purposes”

5 CFR 2635.101(b)(9)


Using government resources what is authorized
USING GOVERNMENT RESOURCES Accused of Being Homosexual?WHAT IS AUTHORIZED?

No

Unrelated to Mission

(no permission)

Caution

Supportive of Mission

(with supervisor’s permission)

Yes

Directly Related to Mission


Using government resources2
USING GOVERNMENT RESOURCES Accused of Being Homosexual?

Rule: Government resources are for the benefit of the Government.

Exception: Government may benefit by allowing employees to use Government resources:

-Efficiency

-Morale

-Public Confidence


Equipment computers copiers printers
Equipment Accused of Being Homosexual?(Computers, Copiers, Printers)

OFFICIAL USE: Accomplish mission

PERSONAL USE:

- No adverse affect official duties

- Reasonable duration and frequency

- Personal time

- Legitimate public interest

- No adverse reflection on DoD

- No significant additional cost to DoD

- AUTHORIZED BY SUPERVISOR


Vehicles
VEHICLES Accused of Being Homosexual?

REFERENCES:

  • AR 58-1, Management, Acquisition and Use of Motor Vehicles, dated 28 January 2000.

  • DoD 4500.36-R, Management, Acquisition, and Use of Motor Vehicles, dated March 1994.

  • DoD 5500.7-R, Joint Ethics Regulation (JER), August 1993.

  • Command Policy on the Use of Government vehicles


Vehicles1
VEHICLES Accused of Being Homosexual?

  • Official Use.

  • Personal Use Prohibited.

    • Home and place of duty

    • Social functions

    • Meals

    • Side-trips


Supplies paper pens paper clips etc
SUPPLIES Accused of Being Homosexual?(Paper, Pens, Paper Clips, Etc.)

OFFICIAL USE: Accomplish mission

PERSONAL USE:

- May not create significant additional cost to DoD

- Must serve legitimate public interest

CONCLUSION: Rarely appropriate


Pop quiz
POP QUIZ... Accused of Being Homosexual?

1. May I use the office copier to make myself a personal copy of

my daughter’s report card to send to her grandparents?

2. May I use the copier to reproduce 75 color copies of my

daughter's graduation picture?

3. May I use the copier to reproduce 200 copies of the President's

address to my daughter’s graduating class?

4. May I use the office fax to receive a 40 page personal fax during

working hours?


Government communication systems
GOVERNMENT COMMUNICATION SYSTEMS Accused of Being Homosexual?

(Not at Government Expense)

Limited Personal Use:

- No adverse effect on official duties

- Reasonable duration and frequency

- Serve legitimate public interest

- No adverse reflection on Government

- Do not overburden communications

- No significant additional cost to DoD


Using government systems
USING GOVERNMENT SYSTEMS Accused of Being Homosexual?

Privacy:

Any official or personal use may be monitored by the Government:

- E-mail

- Internet searches/ use


Pop quiz true false
Pop Quiz - True/False Accused of Being Homosexual?

You may use Government communications systems to:

1. Send Faxes to advertise sale of your car?

2. Do a 12-minute lunchtime internet search about Gator Football?

3. Make off-duty toll-free long-distance call for honeymoon reservations?

4. Use DSN to call your friend at a DoD installation in Hawaii?


Government time
GOVERNMENT TIME Accused of Being Homosexual?


Government time1
GOVERNMENT TIME Accused of Being Homosexual?

Supervisors may permit:

Excused absences: (for a reasonable length of time)

- Non-profit professional associations

a. Related to employee’s duties

b. DoD derives some benefit, and

c. Participation does not interfere with official duties

- Volunteering


Conflicts of interest
CONFLICTS OF INTEREST Accused of Being Homosexual?

  • Personal Financial Interests

    • Includes Spouse, Minor Child, General Partner, or Organization In Which Serving as Director, Officer, Employee, etc.

    • Job Hunting and Post-government Employment

    • Stock Ownership (More Than $5,000)


Conflicts of interest appearance of impartiality
CONFLICTS OF INTEREST Accused of Being Homosexual?Appearance of Impartiality

“Where an employee knows that a particular matter involving specific parties is likely to have a direct and predictable effect on the financial interest of a member of his household, or knows that a person with whom he has a covered relationship is or represents a party to such matter, and where the employee determines that the circumstances would cause a reasonable person with knowledge of the relevant facts to

question his impartiality in the matter,

the employee should not participate in the matter unless he has informed the

agency designee of the appearance

problem and received authorization from

the agency designee . . .”

5 C.F.R. Part 2635, Subpart E


Gifts
GIFTS Accused of Being Homosexual?

  • Shall Not Solicit or Accept a Gift (Directly or Indirectly)

    • From a Prohibited Source; or

    • Because of One’s Official Position

  • Gift Includes:

    • Services, Training, Transportation, Local Travel, Lodging and Meals

  • Prohibited Source

    • Anyone Seeking Official Action by the Agency

    • Does Business or Seeks to Do Business W/ Agency

    • Conducts Activities Regulated by Agency

    • Has Interests Substantially Affected by Agency Decision


Gifts1
GIFTS Accused of Being Homosexual?

What Is Not a Gift:

  • Value Less Than $20

  • Based on Personal Relationships

  • Political Organizations

  • “Doughnut Rule”

  • Cards

  • General Availability

  • Value Paid


Gifts between employees
GIFTS Accused of Being Homosexual?BETWEEN EMPLOYEES

  • Subordinate to a Superior

  • Special Infrequent Occasions

    • $300 Per Donating Group


Gifts frequent traveler miles
GIFTS Accused of Being Homosexual?FREQUENT TRAVELER MILES

  • New DA Travel Policy (11 JANUARY 2002):

    • Soldiers on official travel can keep promotional benefits

    • Restrictions:

      • Traveling in premium classes in uniform

      • Advertising position or rank

      • City-Pairs

    • Frequent Traveler Benefits:

      • Points or miles

      • Upgrades

      • Access to carrier clubs or facilities


Summary1
SUMMARY Accused of Being Homosexual?

  • Be Honest - Don’t Act on Anything That May Impact Your Own or a Family Member’s Financial Interest.

  • Use Common Sense - Don’t Do Anything That Will Appear Unethical.

  • Don’t Accept Gifts From Strangers or Prohibited Sources Exceeding $20 Each or $50 Combined Annually.

  • Subordinates Should Not Give Gifts Exceeding $10 to Superiors Unless for a Special Occasion.

  • Use Government Resources for Official Purposes Only

  • Questions? Call Your Ethics Counselor.


Commander s options
Commander’s Options Accused of Being Homosexual?

  • Do Nothing

  • Counseling

  • Memorandum of Concern/Reprimand

  • Administrative Separations

  • Other Administrative Actions

  • Article 15

  • Court-Martial


Adverse administrative measures
Adverse Administrative Measures Accused of Being Homosexual?

  • Bar to Reenlistment (AR 601-280)

  • MOS Reclassification (AR 600-200)

  • Revoke Security Clearance (AR 380-67)

  • Corrective Training (AR 600-20)

  • Relief from Duties

  • Removal from Special Status

  • Rehabilitative Transfer

  • Adverse NCOER/OER


Procedures for administering an article 15
Procedures for Administering an Article 15 Accused of Being Homosexual?

  • Part I (Initial Reading)

  • Part II (Hearing before the Commander)


Courts martial
Courts-Martial Accused of Being Homosexual?

  • Summary Court-Martial

    • Convened by Battalion CDR (SCMCA)

    • Maximum Punishment

      • 1 month confinement (E-4 and below)

      • 2/3 forfeiture of pay for 1 month,

      • 2 months restriction


Courts martial1
Courts-Martial Accused of Being Homosexual?

  • Special Court-Martial

    • Convened by Brigade CDR (SPCMCA)

    • Maximum Punishment

      • 6 months confinement

      • 2/3 forfeiture of pay for 6 months

      • Reduction to E-1


Courts martial2
Courts-Martial Accused of Being Homosexual?

  • BCD Special Court-Martial

    • Convened by the General Officer with General Court-Martial Convening Authority (GCMCA)

    • Maximum Punishment

      • 6 months confinement

      • 2/3 forfeiture for 6 months

      • Reduction to E-1

      • Bad Conduct Discharge


Courts martial3
Courts-Martial Accused of Being Homosexual?

  • General Court-Martial

    • Convened by the General Officer with General Court-Martial Convening Authority (GCMCA)

    • Maximum Punishment

      • Confinement as authorized by law/death

      • Total forfeiture of all pay

      • Reduction to E-1

      • Bad Conduct/Dishonorable Discharge


QUESTIONS Accused of Being Homosexual?


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