· 8 years ago · Dec 06, 2017, 11:12 PM
16207. HOMOSEXUAL CONDUCT
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31. Policy
4 a. Homosexual conduct is grounds for separation from the Marine Corps under the bases described in 6207.2. Homosexual conduct includes homosexual acts, a statement by a member that demonstrates a propensity or intent to engage in homosexual acts, or a homosexual marriage or attempted marriage. A
5statement by a member that demonstrates a propensity or intent to engage in homosexual acts is grounds for separation not because it reflects the member's sexual orientation, but because the statement indicates a likelihood that the member engages in or will engage in homosexual acts. A member's sexual orientation is considered a personal and private matter, and is not a bar to continued service under this section unless manifested by homosexual conduct in the manner described in paragraph 6207.2.
6 b. 10 U.S.C. 654(a), contains the Congressional findings related to the policy concerning homosexual conduct in the Armed Forces. These findings are as follows:
7 (1) Section 8 of Article I of the Constitution of the United States commits exclusively to the Congress the powers to raise and support armies, provide and maintain a navy, and make rules for Government and regulation of the land and naval forces.
8 (2) There is no constitutional right to serve in the Armed Forces.
9 (3) Pursuant to the powers conferred by Section 8 of Article I of the Constitution of the United States, it lies within the discretion of the Congress to establish qualifications for and conditions of service in the Armed Forces.
10 (4) The primary purpose of the Armed Forces is to prepare for and to prevail in combat should the need arise.
11 (5) The conduct of military operations requires members of the Armed Forces to make extraordinary sacrifices, including the ultimate sacrifice, in order to provide for the common defense.
12 (6) Success in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion.
13 (7) One of the most critical elements in combat capability is unit cohesion, that is, the bonds of trust among individual service members that make the combat effectiveness of a military unit greater than the sum of the combat effectiveness of the individual unit members.
14 (8) Military life is fundamentally different from civilian life in that:
15 (a) The extraordinary responsibilities of the Armed Forces, the unique conditions of military service, and the critical role of unit cohesion, require that the military community, while subject to civilian control, exist as a specialized society; and
16 (b) The military society is characterized by its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society.
17 (9) The standards of conduct for members of the Armed Forces regulate a member's life for 24 hours each day beginning at the moment the member enters military status and not ending until that person is discharged or otherwise separated from the Armed Forces.
18 (10) Those standards of conduct, including the Uniform Code of Military Justice, apply to a member of the Armed Forces at all times that the member has a military status, whether the member is on base or off base, and whether the member is on duty or off duty.
19 (11) The pervasive application of the standards of conduct is necessary because members of the Armed Forces must be ready at all times for worldwide deployment to a combat environment.
20 (12) The worldwide deployment of United States military forces, the international responsibilities of the United States, and the potential for involvement of the Armed Forces in actual combat routinely make it necessary for members of the Armed Forces involuntarily to accept living conditions and working conditions that are often spartan, primitive, and characterized by forced intimacy with little or no privacy.
21 (13) The prohibition against homosexual conduct is a long standing element of military law that continues to be necessary in the unique circumstances of military service.
22 (14) The Armed Forces must maintain personnel policies that exclude persons whose presence in the Armed Forces would create an unacceptable risk to the Armed Forces' high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.
23 (15) The presence in the Armed Forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.
242. Bases for Separation. A Marine shall be separated under this paragraph if one or more of the following approved findings is made by the separation authority with or without administrative board proceedings:
25 a. The member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts, unless there are further approved findings that:
26 (1) Such acts are a departure from the member's usual and customary behavior;
27 (2) Such acts under all the circumstances are unlikely to recur;
28 (3) Such acts were not accomplished by the use of force, coercion, or intimidation;
29 (4) Under the particular circumstances of the case, the member's continued presence in the Marine Corps is consistent with the interest of the Marine Corps in proper discipline, good order, and morale; and
30 (5) The member does not have a propensity or intent to engage in homosexual acts.
31 b. The member has made a statement that he/she is a homosexual, or words to that effect, unless there is a further approved finding that the member has demonstrated that he/she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. A statement by a service member that he/she is a homosexual, or words to that effect, creates a rebuttable presumption that the service member engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. The service member shall be advised of this presumption and given the opportunity to rebut the presumption by presenting evidence demonstrating that he/she does not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts. Propensity to engage in homosexual acts means more than an abstract preference or desire to engage in homosexual acts; it indicates a likelihood that a person engages in or will engage in homosexual acts. In determining whether a member has successfully rebutted the presumption that he/she engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts, some or all of the following may be considered:
32 (1) Whether the member has engaged in homosexual acts;
33 (2) The member's credibility;
34 (3) Testimony from others about the member's past conduct, character, and credibility;
35 (4) The nature and circumstances of the member's statement;
36 (5) Any other evidence relevant to whether the member is likely to engage in homosexual acts.
37(This list is not exhaustive; any other relevant evidence may also be considered.)
38 c. The member has married or attempted to marry a person known to be of the same biological sex (as evidenced by the external anatomy of the persons involved).
393. Inquiry
40 a. Responsibility
41 (1) The member's commander is authorized to initiate fact finding inquiries concerning homosexual conduct. A commander may initiate a fact finding inquiry only when he/she has received credible information that there is a basis for discharge. Commanders are responsible for ensuring that inquiries are conducted properly and that no abuse of authority occurs.
42 (2) A fact finding inquiry may be conducted by the commander personally or by a person he or she appoints. It may consist of an examination of the information reported or a more extensive investigation as necessary.
43 (3) The inquiry should gather all credible information that directly relates to the grounds for possible separation. Inquiries shall be limited to the factual circumstances directly relevant to the specific allegations.
44 *(4) If a commander has credible evidence of possible criminal conduct, he or she shall follow the procedures outlined in the current version of the Manual for Courts Martial and JAGINST 5800.7 series, JAGMAN.
45 *(5) These inquiry provisions do not apply to activities of the Naval Criminal Investigative Service and other Department of Defense criminal investigative organizations that are governed by DODINST 5505.8 series.
46 b. Bases for Conducting Inquiries. A commander will initiate an inquiry only if he or she has credible information that there is a basis for discharge. Credible information exists when the information, considering its source and the surrounding circumstances, supports a reasonable belief that there is a basis for discharge. It requires a determination based on articulable facts, not just a belief or suspicion.
47 c. A basis for discharge exists if:
48 (1) The member has engaged in a homosexual act;
49 (2) The member has said that he or she is a homosexual or bisexual, or made some other statement that indicates a propensity or intent to engage in homosexual acts; or
50 (3) The member has married or attempted to marry a person of the same sex.
51 d. Credible information does not exist, for example, when:
52 (1) The individual is suspected of engaging in homosexual conduct, but there is no credible information, as described, to support that suspicion;
53 (2) The only information is the opinions of others that a member is a homosexual;
54 (3) The inquiry would be based only on rumor, suspicion, or capricious claims concerning a member's sexual orientation; or
55 (4) The only information known is an associational activity such as going to a gay bar, possessing or reading homosexual publications, associating with known homosexuals, or marching in a gay rights rally in civilian clothes. Such activity, in and of itself, does not provide evidence of homosexual conduct.
56 e. Credible information exists, for example, when:
57 (1) A reliable person states that he or she observed or heard a service member engaging in homosexual acts, or saying that he/she is a homosexual or is married to a member of the same sex;
58 (2) A reliable person states that he/she heard, observed, or discovered a member make a spoken or written statement that a reasonable person would believe was intended to convey the fact that he/she engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts; or
59 (3) A reliable person states that he/she observed behavior that amounts to a non-verbal statement by a member that he/she is a homosexual or bisexual (i.e., behavior that a reasonable person would believe was intended to convey the statement that the member engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts).
60 f. Procedures
61 (1) Informal fact finding inquiries and administrative separation procedures are the preferred method of addressing homosexual conduct. This does not prevent disciplinary action or trial by court-martial when appropriate.
62 (2) Commanders shall exercise sound discretion regarding when credible information exists. They shall examine the information and decide whether an inquiry is warranted or whether no action should be taken.
63 (3) Commanders or appointed inquiry officials shall not ask, and members shall not be required to reveal, whether the member is a heterosexual, a homosexual, or a bisexual. However, upon receipt of credible information of homosexual conduct (as described above), commanders or appointed inquiry officials may ask members if they engaged in such conduct. The member should first be advised of the Marine Corps policy on homosexual conduct and, if applicable, the provisions of Article 31, UCMJ. Should the member choose not to discuss the matter further, the commander should consider other available information. Nothing in this provision precludes questioning a member about any information provided by the member in the course of the fact finding inquiry or any related proceeding; nor does it provide the member with any basis for challenging the validity of any proceeding or the use of any evidence, including a statement by the member, in any proceeding.
64 (4) At any point during the inquiry, the commander or appointed inquiry official must be able to explain clearly and specifically which grounds for separation he/she is attempting to verify and how the information
65being collected relates to those specific separation grounds.
66 (5) A statement by a service member that he/she is a homosexual or bisexual creates a rebuttable presumption that the service member engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. The service member shall be given the opportunity to present evidence demonstrating that he/she does not engage in, attempt to engage in, or have a propensity or intent to engage in homosexual acts. The service member bears the burden of proving, by a preponderance of the evidence, that he/she is not a person who engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts.
67 g. Legal Effect. The procedures set forth in paragraph 6207.3 create no substantive or procedural rights.
684. Disposition
69 a. Based on the inquiry described in paragraph 6207.3, the commander must determine whether there is probable cause (a reasonable belief) to believe a basis for administrative separation exists. If the commanding officer determines probable cause exists, the commanding officer shall initiate separation processing.
70 b. If the commanding officer determines probable cause does not exist, the commanding officer shall terminate the inquiry and any administrative action already initiated.
71 c. Certain homosexual conduct may constitute both a basis for administrative separation processing and a violation of the UCMJ. The UCMJ requires all allegations of misconduct to be thoroughly investigated. Upon review of the results of the investigation, the cognizant commanding officer has discretion to determine what, if any, disciplinary action is appropriate. The provisions for administrative discharge for homosexual conduct do not preclude disciplinary action under the UCMJ when such action is deemed appropriate by the cognizant commanding officer. In this regard, there is no right on the part of any individual to demand trial by court-martial in lieu of administrative separation processing.
725. Characterization. Characterization of service or description of separation shall be in accordance with the guidance in table 6-1 of this chapter. When the sole basis for separation is homosexual conduct, a characterization under other than honorable conditions may be issued only if such a characterization is warranted under table 6-1 and there is a finding that during the current term of service the member attempted, solicited, or committed a homosexual act in the following circumstances:
73 a. By using force, coercion, or intimidation;
74 b. With a person under age 16;
75 c. With a subordinate in circumstances that violate customary military superior/subordinate relationships;
76 d. Openly in public view;
77 e. For compensation;
78 f. Aboard a military vessel or aircraft; or
79 g. In another location subject to military control under aggravating circumstances having an adverse impact on discipline, good order, or morale comparable to the impact of such activity aboard a vessel or aircraft.
806. Administrative Separation Board Procedures. The administrative discharge board procedures outlined in paragraph 6304 shall be used subject to the following guidance:
81 a. The administrative separation board shall be informed of the Congressional findings as enumerated in paragraph 6207.1b.
82 b. In addition to the requirements of paragraph 6319, the administrative separation board shall be guided by the following:
83 (1) If the board finds one or more of the circumstances authorizing separation as described herein is supported by the evidence, the board shall recommend separation unless the board finds that retention is warranted under the limited circumstances described in paragraph 6207.2a or 6207.2b.
84 (2) If the board does not find that there is sufficient evidence that one or more of the circumstances authorizing separation as described herein has occurred, the board shall recommend retention unless the case involves another basis for separation of which the member has been duly notified.
85 (3) The member shall bear the burden of proving throughout the proceeding, by a preponderance of the evidence, that retention is warranted under the limited circumstances described in paragraph 6207.2a or 6207.2b.
86 (4) Findings regarding whether or not retention is warranted under the limited circumstances described are required if the member clearly and specifically raises such limited circumstances.
877. Separation Authority Action
88 a. The separation authority shall dispose of a case according to the following provisions:
89 (1) If the board recommends retention, the separation authority shall take one of the following actions:
90 (a) Approve the finding and direct retention;
91 (b) Forward the case to the Secretary of the Navy via the CMC (MMSR-3) with a recommendation that the Secretary separate the member under paragraph 6214.
92 (2) If the board recommends separation, the separation authority shall take one of the following actions:
93 (a) Approve the finding and direct separation; or
94 (b) Disapprove the finding based on one of the following considerations:
95 1 There is insufficient evidence to support the finding; or
96 2 Retention is warranted under the limited circumstances described in paragraph 6207.2a or 6207.2b.
97 (3) If there has been a waiver of the board proceedings, the separation authority shall dispose of the case in accordance with the following provisions:
98 (a) If the separation authority determines that there is insufficient evidence to support separation, the separation authority shall direct retention unless there is another basis for separation for which the member has been duly notified; or
99 (b) If the separation authority determines that one or more of the circumstances authorizing separation as described has occurred, the member shall be separated unless retention is warranted under the limited circumstances described in paragraph 6207.2a or 6207.2b.
1008. Limitations. Nothing in these procedures:
101 a. Limits the authority of the Secretary of the Navy to take appropriate action to ensure that there has been compliance with the provisions of this policy;
102 b. Requires that a member be processed for separation when a determination is made that:
103 (1) The member engaged in acts, made statements, or married or attempted to marry a person known to be of the same biological sex for the purpose of avoiding or terminating military service; and
104 (2) Separation of the member would not be in the best interest of the Marine Corps;
105 c. Precludes retention of a member for a limited period of time in the interests of national security as authorized by the Secretary of the Navy;
106 d. Authorizes a member to seek Secretarial review unless authorized in procedures promulgated by the Secretary of the Navy;
107 e. Precludes separation in appropriate circumstances for another reason as described in this chapter; or
108 f. Precludes trial by court-martial in appropriate cases.