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New "Common Sense" Rules for Don't Ask, Don't Tell

By Tanya Roth, Esq. on March 29, 2010 | Last updated on March 21, 2019

On Thursday, March 25, Secretary of the Defense Robert Gates told a press conference the United States Military will adopt a "common sense," "common decency" approach to the enforcement of the "don't ask, don't tell" law governing gay men and women serving in the armed forces. According to Secretary Gates, such new rules of enforcement are an important first step while the armed forces considers the effect a repeal of the law would have on the military as a whole.

According to MSNBC, the new guidelines will go into effect immediately and will even apply to current discharge cases. The changes address two major areas of the discharge proceedings, officers in charge and evidence. First, the ranks of the officer who initiates the initial fact-finding inquiry, who can conduct an inquiry and who can authorize a dismissal, have all been raised. 

The second change affects the rules governing evidence used in the discharge inquires. To limit the use of hearsay in the proceedings, the new rules will now require third party statements about the person under investigation to be given under oath. This will limit such past examples of unreliable evidence from third parties such as jilted romantic partners or male soldiers whose advances had been rebuffed by the female soldiers they give evidence against. Additionally, statements gathered from lawyers, therapists, or information from doctors taken in the course of providing medical care, are now prohibited.

These new rules are meant to be a stop-gap measure until the study Secretary Gates has undertaken can provide information Congress can use to decide whether or not to fully repeal don't ask don't tell. Some more conservative members of Congress have voiced concerns over the affect a repeal would have on military cohesion, while others like Sen. Carl Levin, D-Mich., say the time for change is now.

Individual branches of the service will have 30 days to implement the new rules.

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