WASHINGTON, Nov. 30, 2010 — A change in the law that bans gay men and lesbians from serving openly in the military can be implemented without irreparable harm, the co-chair of a Pentagon working group that studied the matter said yesterday.
“It’s my belief, having now looked this matter extensively over nine months, that the leaders of our services — all services, all components — are so good today, so experienced today, that they can effectively implement this change, maintain unit cohesion, and a strong focus on mission accomplishment,” Army Gen. Carter F. Ham, commanding general of U.S. Army Europe, said.
Ham and Jeh C. Johnson, the Defense Department’s general counsel and the working group’s other co-chair, discussed their findings in an interview with the Pentagon Channel and American Forces Press Service.
Defense Secretary Robert M. Gates appointed Ham and Johnson early this year to lead the group to determine the effects on the military if the law is changed to allow gays to serve openly. Ham and Johnson made their findings public today, as well as their report, which assesses the matter and gives recommendations for moving forward.
A majority — about 55 percent — of respondents to a survey sent to 400,000 servicemembers in the active and reserve components said allowing gays to serve openly would have either no effect or a balance of positive and negative effects on the military, and between 15 and 20 percent said such a change would have only positive effects.
About 30 percent of respondents said overturning the law would have a mostly negative impact, and those respondents mostly were part of the warfighting specialties, Ham said.
Results showed slight trends in differences among members of each service, Ham said, adding that he was surprised the feedback showed few trends among age groups.
The issue has come under increasing scrutiny as a lawsuit challenging the 17-year-old law worked its way through the federal courts this year, and is scheduled to be heard by a federal appeals court in the spring. Congress has before it a bill that would repeal the law, but it is unclear yet whether they will vote on it before the session ends Dec. 30 and a new Congress takes over in January.
Meanwhile, President Barack Obama, Gates, and Navy Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, have said they support congressional repeal of the law. One focus of the debate is whether allowing gays to serve openly would be detrimental to military cohesion.
“Any time a policy change of this order is considered, we know there are inherent risks,” Ham said. “In my view, the greatest risk comes if repeal is ordered and we imperfectly apply the changes that are needed.”
Those risks must receive special scrutiny in a forward-deployed area, Ham said, but strong leadership can mitigate risks. “Leadership is so key in the implementation phase,” he said.
Ham and Johnson recommended changes they believe the services should start making or thinking about making if the law is overturned.
“For those of us in uniform, we should take this time we have now to think about repeal, and be prepared for repeal should it come,” Ham said. The general cautioned, however, that all military members must uphold the law that is in place.
“A key point for all us in uniform to remember as we think about Don’t Ask Don’t Tell is that the current law is in effect, and all us in uniform have sworn an oath to uphold the law,” he said.
If the law is overturned, they said, the services will need to increase costs in training and education, but should not incur the high cost of creating separate facilities, as has been discussed.
“We strongly recommend against establishing separate facilities,” Ham said. “We think that is the wrong direction for the Department of Defense.”
The biggest impact for transitioning the military to accepting openly gay servicemembers, they said, will be in the area of benefits.
“We recommend the services closely analyze the costs of extending certain benefits once the secretary of defense and Congress make decisions about which, if any, of the benefits proposals we make are adopted,” Ham said.
Benefits for same-sex partners of servicemembers “is an issue we spent a lot of time on,” Johnson said. “It’s a complex issue. In and of itself, it could absorb a working group for months.”
The services should look at three categories of benefits, Johnson said. Some that are “member designated,” such as life insurance, already can be given to a same-sex partner or anyone the servicemember chooses, he said. The services should consider whether other benefits can be reclassified as “member designated,” he said.
Some benefits cannot be extended to same-sex partners because of the federal Defense of Marriage Act, which trumps all state laws, Johnson noted.
Johnson said Congress should change the Uniform Code of Military Justice to remove language forbidding consensual sodomy. The change should be made regardless of whether the Don’t Ask, Don’t Tell law is overturned to put the UCMJ in agreement with a seven-year-old Supreme Court decision, he said.
The report further recommends that all servicemembers who were discharged under Don’t Ask, Don’t Tell should be permitted to re-enlist. “The fact that they were separated pursuant to this law should be set aside as irrelevant,” Johnson said.
Under the current legislation before Congress, repeal would become effective only after the president, secretary of defense and chairman of the Joint Chiefs of Staff certify in writing that new Defense Department regulations and policies are consistent with unit cohesion, retention and recruitment, Johnson said.
“If they pass the legislation, we immediately go into this time where we create new policies and regulations, then deliver it to Congress,” he said. There is no limit on how much time the administration can take in delivering its plans. If Congress approves them, it would take 60 days to officially remove Don’t Ask, Don’t Tell, he said.
U.S. Department of Defense
Office of the Assistant Secretary of Defense (Public Affairs)