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MILITARY CODE “REMAINS INTACT”
by JB Williams, ©2011
(Sep. 29, 2011) — Amid the flurry of false propaganda surrounding Obama’s repeal of Clinton’s Don’t Ask, Don’t Tell policy concerning gay military service, the facts seem to be as distant as the solution to the crisis the policy creates within the U.S. Military.
To demonstrate the point, allow me to work backwards for a moment, beginning with the Washington Post announcement of December 18, 2010 – “The U.S. Senate voted 65-31 to repeal the Don’t Ask – Don’t Tell law, sending to Obama a bill to end the 17-year ban on gays serving openly in the military.”
First, Don’t Ask – Don’t Tell was never a law; it was a 1993 Executive Order by then-President Bill Clinton, who later called for the order to be reversed in 2003. The order did not make law, as the U.S. Constitution rests all law-making authority with Congress, not the Oval Office or some unelected federal judge.
Second, Clinton’s order did not create a 17-year ban on gays serving openly in the military. The ban on gay service in the military – open or otherwise – has existed since the establishment of our military and it still exists today, within the U.S. Code of Military Conduct, as affirmed by Congress in 1994.
Gay service is not the only conduct banned by military code. There are numerous conducts prohibited by military code and they all exist for a reason. The reasons for the ban on gay service are stated in the code under – TITLE 10 – ARMED FORCES – Subtitle A – General Military Law – PART II – PERSONNEL – CHAPTER 37 – GENERAL SERVICE REQUIREMENTS
(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 the government and regulation of the land and naval forces.
(2) There is no constitutional right to serve in the armed
(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.
Military life is fundamentally different from civilian life in that –
(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
(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
(13) The prohibition against homosexual conduct is a
longstanding element of military law that continues to be
necessary in the unique circumstances of military service.
(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.
(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.
(b) Policy. – A member of the armed forces shall be separated
from the armed forces under regulations prescribed by the Secretary
of Defense if one or more of the following findings is made and
approved in accordance with procedures set forth in such
Bill Clinton’s 1993 Executive Order lacked the constitutional authority to alter U.S. Military Code. Although Don’t Ask was in practice, it was at no time in legal force. As a result, the 2010 repeal of Clinton’s order only eliminated an order which had no legal authority to begin with.
U.S. Military General Service Requirements, as defined by Military Code, remains as it has always existed – “The prohibition against homosexual conduct is a longstanding element of military law that continues to be necessary in the unique circumstances of military service.”
Military Code stands, despite all of the political wrangling over Clinton’s ill-conceived order and Obama’s repeal of that order. Nothing has changed in U.S. Military Code and only Congress has the constitutional authority to alter U.S. Military Code.
Congress has never altered official military code on the subject. They have only reversed Clinton’s Don’t Ask policy, which was never law to begin with, and was not the basis for the ban on gay service in the U.S. Military.
To make gay service in the U.S. Military legal, Congress would have to change Military Code, specifically, TITLE 10 – ARMED FORCES – Subtitle A – General Military Law – PART II – PERSONNEL – CHAPTER 37 – GENERAL SERVICE REQUIREMENTS. No such change has been made by congress.
Obama’s Latest Crisis
Clinton’s Executive Order created policy, not law. The policy did not make gay service in the military legal – it only told command not to ask and soldiers not to tell, circumventing military code with a lie by omission.
Obama’s repeal of Clinton’s order does not make gay service in the military legal – it only ended Clinton’s suggestion that soldiers lie on their application for service.
The U.S. Military is an all-volunteer defense force. As Congress pointed out in 1994, there is no constitutional right to serve in the military, therefore, there are no constitutional protections concerning race, religion or sexual preference.
When young men and women volunteered for military service, they did so under contract with the U.S. government, based on a certain specific set of standards and conditions. Clinton and Obama have violated those standards and conditions, placing the U.S. Government in direct breach of contract with every service member. Soldiers didn’t sign up for this…
If a service member objects, and refuses to serve beside homosexuals, they will NOT be Courts Martialed. They are instead being immediately discharged from service with full honors, upon request.
It is not Military Command or Congress who is causing the crisis. Two left-wing Presidents, Clinton and Obama, attempted to circumvent long-standing Military Law via Executive Orders. Neither had ever served in the military and both are known to loathe the military. Clinton dodged the draft and Obama failed to file his Selective Service papers. Both share an agenda for our military…
Both are attempting to destroy the military, turning the world’s most fearsome fighting force into some social experiment gone wrong.
A Matter of Life and Death, NOT Homophobia
The political left has labeled all opposition as a phobia of one sort or another. When you oppose Obama’s socialism, you are a racist. When you stand up for human life, you are anti-woman. When you oppose Islamic terrorism, you are an Islamophobe. And when you stand for Military Code – you are a homophobe.
But as civilian life on the college campus or Main Street USA is seldom described as an arena of life and death, homosexuals on the college campus or at your local Wal-Mart, is something very different from homosexuals in the next bunk, shower or foxhole.
Many homosexuals have served honorably and effectively in the military. This is not the issue…
The issue is Military Code and standards of conduct aimed at providing soldiers the greatest degree of safety and security, morale and cohesion while doing the nation’s dirty work, with life and limb hanging in the balance.
Because neither Clinton nor Obama directly addressed standing Military Code, the code remains intact, as it has existed much longer than 17 years. Homosexual service in the military is still a conduct punishable by Courts Martial, according to the manual and the UCMJ.
By trying to enforce executive political whims without altering code, they have placed both gay and heterosexual members of the military squarely in the line of fire of the UCMJ. Gays can be Courts Martialed for openly or quietly serving, and all other service members can and will be released from service with honors if they refuse to serve under the breech of Military Code and the contract they agreed to when they volunteered for service.
In typical leftist fashion, they have created another division, this time within the military.
Homosexuals represent less than 2% of service members, yet the other 98% have been forced into a position which is against standing Military Code and violates the agreement they signed when volunteering for service.
If the federal government wants to make gay service legal, they will have to change standing military code. Everything else they do is just a political tool of division, aimed at created a crisis within the armed forces.
This can’t end well… Clinton told gays to lie by omission and Obama has now reversed that order.
But until congress changes Military Code, every member of the military is caught in the crossfire of political stunts and this will not serve our soldiers well, any of them.
Last, so long as we have a usurper in the White House, illegitimate Command at the top of the Military chain of command, nothing can be legally or constitutionally altered, in the Military Code or anywhere else.
Update, September 30, 2011:
UPDATE to ARTICLE # 092811 – Don’t Ask – Obama’s Latest Costly Crisis
After release, it has come to my attention that the Don’t Ask Don’t Tell Repeal Act of 2010 included the following language – “TITLE 10- Upon the effective date established by subsection (b), chapter 37 of title 10, United States Code, is amended– (A) by striking section 654; and (B) in the table of sections at the beginning of such chapter, by striking the item relating to section 654.”
Contrary to statements in my original column, the Act passed by the Senate does appear to alter UCMJ Code by striking section 654 entirely, which is the section that prohibited homosexual service in the US Military. The Repeal Act was rushed through both houses of Congress while Democrats controlled both houses in December 2010, via the Small Business and Science and Technology Committees, attached to small business and technology legislation, circumventing all Military oversight committees.
Although the UCMJ Code book itself had not been altered at the time of release, it does appear upon further review, that the Act slipped through the Democrat controlled congress will alter UCMJ Code on the matter by striking the entire 654 section of the Code. Any misstatement of fact in the original report was unintentional and has now been corrected with this update.
It is worth noting that only the following eight Senate Republicans supported the measure –
Sen. Scott Brown [R, MA] Aye
Sen. Richard Burr [R, NC] Aye
Sen. Susan Collins [R, ME] Aye
Sen. John Ensign [R, NV] Aye
Sen. Mark Kirk [R, IL] Aye
Sen. Lisa Murkowski [R, AK] Aye
Sen. Olympia Snowe [R, ME] Aye
George Voinovich [R, OH] Aye
Editor’s Note: A U.S. Army memorandum dated September 20, 2011 states that the “Don’t Ask, Don’t Tell law is repealed” and is signed by a Sergeant Major, a General, and Secretary of the Army.