Ask the Lawyer: Gray area for separations during DADT repeal process - Military Law, Military Law Advice, Ask a Lawyer - Army Times

Ask the Lawyer: Gray area for separations during DADT repeal process

Lawyer Mathew B. Tully answers your questions.

Q. What does repeal of the “don’t ask, don’t tell” policy mean for discharges?

The repeal of the policy that prohibits gays from openly serving in the military is a moving target.

But it’s likely that the change will have a much greater effect on people who were previously discharged under it than people now in service.

Even though President Obama signed the Don’t Ask, Don’t Tell Repeal Act of 2010 into law Dec. 22, the repeal will not be effective until 60 days after the president, defense secretary and chairman of the Joint Chiefs certify that the DADT regulations can be revoked in a way that protects military readiness and effectiveness.

During this transitional phase, the law states that DADT regulations will remain in effect.

A California district court’s October ruling that barred the military from enforcing DADT regulations has complicated matters in regard to separations of gay service members. However, a federal appellate court has temporarily reinstated those regulations as the case goes through the appeals process.

In a policy memo issued after the district court ruling but before the appellate court order, the Navy cautioned service members that personal conduct violating DADT regulations “in this legally uncertain environment” could result in adverse consequences if the lower court’s decision is reversed.

In short, the threat of an administrative discharge remains for openly gay service members.

Regardless of how this court case pans out, when DADT is fully repealed, the military will no longer be able to discharge service members solely for being openly gay. Gay service members will be held to the same standards of conduct as their heterosexual counterparts.

I’m often asked if someone who was previously discharged for being openly gay can upgrade a discharge or re-enlistment code now that things are changing. While this issue has not been decided, I believe the answer will be yes. The process to change discharges and re-enlistment codes has been described in previous columns about the Boards for Correction of Military Records.

More questions than answers remain about how the military will handle the separations of gay service members. If you believe you have been unlawfully discriminated against, you should contact a military law attorney.

Mathew B. Tully is an Iraq war veteran and founding partner of the law firm Tully Rinckey PLLC. Click here to email him. The information in this column is not intended as legal advice.