From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 10USC654]
TITLE 10--ARMED FORCES
Subtitle A--General Military Law
PART II--PERSONNEL
CHAPTER 37--GENERAL SERVICE REQUIREMENTS
Sec. 654. Policy concerning homosexuality in the armed forces
(a) Findings.--Congress makes the following findings:
(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
forces.
(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.
(4) The primary purpose of the armed forces is to prepare for
and to prevail in combat should the need arise.
(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.
(6) Success in combat requires military units that are
characterized by high morale, good order and discipline, and unit
cohesion.
(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.
(8) 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 society; and
(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.
(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.
(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.
(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.
(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.
(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 regulations:
(1) That the member has engaged in, attempted to engage in, or
solicited another to engage in a homosexual act or acts unless there
are further findings, made and approved in accordance with
procedures set forth in such regulations, that the member has
demonstrated that--
(A) such conduct is a departure from the member's usual and
customary behavior;
(B) such conduct, under all the circumstances, is unlikely
to recur;
(C) such conduct was not accomplished by use of force,
coercion, or intimidation;
(D) under the particular circumstances of the case, the
member's continued presence in the armed forces is consistent
with the interests of the armed forces in proper discipline,
good order, and morale; and
(E) the member does not have a propensity or intent to
engage in homosexual acts.
(2) That the member has stated that he or she is a homosexual or
bisexual, or words to that effect, unless there is a further
finding, made and approved in accordance with procedures set forth
in the regulations, that the member has demonstrated that he or 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.
(3) That the member has married or attempted to marry a person
known to be of the same biological sex.
(c) Entry Standards and Documents.--(1) The Secretary of Defense
shall ensure that the standards for enlistment and appointment of
members of the armed forces reflect the policies set forth in subsection
(b).
(2) The documents used to effectuate the enlistment or appointment
of a person as a member of the armed forces shall set forth the
provisions of subsection (b).
(d) Required Briefings.--The briefings that members of the armed
forces receive upon entry into the armed forces and periodically
thereafter under section 937 of this title (article 137 of the Uniform
Code of Military Justice) shall include a detailed explanation of the
applicable laws and regulations governing sexual conduct by members of
the armed forces, including the policies prescribed under subsection
(b).
(e) Rule of Construction.--Nothing in subsection (b) shall be
construed to require that a member of the armed forces be processed for
separation from the armed forces when a determination is made in
accordance with regulations prescribed by the Secretary of Defense
that--
(1) the member engaged in conduct or made statements for the
purpose of avoiding or terminating military service; and
(2) separation of the member would not be in the best interest
of the armed forces.
(f) Definitions.--In this section:
(1) The term ``homosexual'' means a person, regardless of sex,
who engages in, attempts to engage in, has a propensity to engage
in, or intends to engage in homosexual acts, and includes the terms
``gay'' and ``lesbian''.
(2) The term ``bisexual'' means a person who engages in,
attempts to engage in, has a propensity to engage in, or intends to
engage in homosexual and heterosexual acts.
(3) The term ``homosexual act'' means--
(A) any bodily contact, actively undertaken or passively
permitted, between members of the same sex for the purpose of
satisfying sexual desires; and
(B) any bodily contact which a reasonable person would
understand to demonstrate a propensity or intent to engage in an
act described in subparagraph (A).
(Added Pub. L. 103-160, div. A, title V, Sec. 571(a)(1), Nov. 30, 1993,
107 Stat. 1670.)
References in Text
The Uniform Code of Military Justice, referred to in subsec.
(a)(10), is classified to chapter 47 (Sec. 801 et seq.) of this title.
Implementation of Section; Regulations; Savings Provision; Sense of
Congress
Section 571(b)-(d) of Pub. L. 103-160 provided that:
``(b) Regulations.--Not later than 90 days after the date of
enactment of this Act [Nov. 30, 1993], the Secretary of Defense shall
revise Department of Defense regulations, and issue such new regulations
as may be necessary, to implement section 654 of title 10, United States
Code, as added by subsection (a).
``(c) Savings Provision.--Nothing in this section or section 654 of
title 10, United States Code, as added by subsection (a), may be
construed to invalidate any inquiry, investigation, administrative
action or proceeding, court-martial, or judicial proceeding conducted
before the effective date of regulations issued by the Secretary of
Defense to implement such section 654.
``(d) Sense of Congress.--It is the sense of Congress that--
``(1) the suspension of questioning concerning homosexuality as
part of the processing of individuals for accession into the Armed
Forces under the interim policy of January 29, 1993, should be
continued, but the Secretary of Defense may reinstate that
questioning with such questions or such revised questions as he
considers appropriate if the Secretary determines that it is
necessary to do so in order to effectuate the policy set forth in
section 654 of title 10, United States Code, as added by subsection
(a); and
``(2) the Secretary of Defense should consider issuing guidance
governing the circumstances under which members of the Armed Forces
questioned about homosexuality for administrative purposes should be
afforded warnings similar to the warnings under section 831(b) of
title 10, United States Code (article 31(b) of the Uniform Code of
Military Justice).''
Section Referred to in Other Sections
This section is referred to in section 983 of this title.
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