{"id":1772,"date":"2015-02-12T20:49:40","date_gmt":"2015-02-13T01:49:40","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/jlg\/?p=1772"},"modified":"2017-10-08T23:14:52","modified_gmt":"2017-10-09T03:14:52","slug":"witt-less-a-history-and-analysis-of-the-u-s-militarys-failure-to-comply-with-the-ninth-circuits-due-process-standard-for-dont-ask-dont-tell","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlg\/2015\/02\/witt-less-a-history-and-analysis-of-the-u-s-militarys-failure-to-comply-with-the-ninth-circuits-due-process-standard-for-dont-ask-dont-tell\/","title":{"rendered":"Witt-Less: A History And Analysis Of The U.S. Military’s Failure To Comply With The Ninth Circuit’s Due Process Standard For \u2018Don\u2019t Ask, Don\u2019t Tell\u2019"},"content":{"rendered":"

\"Rainbow<\/a><\/p>\n

Ari Freilich[1]<\/sup><\/sup><\/a><\/p>\n

Please click here for a PDF version of the article.<\/a><\/p>\n

I. Introduction<\/strong><\/p>\n

In its May 2008 ruling in Witt v. Dep\u2019t of the Air Force<\/em>,[2]<\/sup><\/sup><\/a> the Ninth Circuit Court of Appeals became the first court in the nation to subject Don\u2019t Ask, Don\u2019t Tell (\u201cDADT\u201d) to a standard of \u201cheightened scrutiny\u201d and, more generally, to explicitly require more than deferential rational basis justification for \u201cgovernment attempts to intrude upon the personal and private lives of homosexuals[.]\u201d[3]<\/sup><\/sup><\/a> But Witt <\/em>did more than simply articulate an abstract due process standard for subsequent gay rights cases. Surprisingly scant attention has been paid to the fact that, in applying heightened scrutiny to DADT, Witt <\/em>mandated a new, significant, evidentiary burden shift against the military in discharging servicemembers for their sexual orientation. The Witt <\/em>Court invalidated DADT\u2019s blanket, mandatory discharge policy in favor of a fact-specific standard requiring actual, individualized proof of military necessity in order to substantiate a servicemember\u2019s discharge under DADT. That decision, and the \u201cWitt Standard\u201d borne of it, should have been a watershed moment for gay rights in America because the Ninth Circuit Court afforded significantly expanded substantive due process protections to gay men and women within its jurisdiction.[4]<\/sup><\/sup><\/a> The decision should also have had an immediate impact on gay servicemembers\u2019 right to serve openly in the U.S. Armed Forces. Although the military\u2019s highest ranking officials acknowledged the Witt Standard as binding and approvingly cited it in federal court cases, the military simply, absolutely, and unconstitutionally ignored the decision in practice.<\/p>\n

Since its enactment in 1993, 10 U.S.C. \u00a7 654, commonly known as Don\u2019t Ask, Don\u2019t Tell, mandated that military commanders discharge all servicemembers who engaged in homosexual conduct, attempted to form a same-sex marriage, or evidenced a \u201cpropensity\u201d to engage in homosexual conduct or relationships. Before Witt<\/em>, that statute was upheld under rational basis review by every court that considered it.[5]<\/sup><\/sup><\/a> The military\u2019s evidentiary burden in such discharges was extremely slight, and courts and military commands routinely (and rather absurdly) placed the burden on outed servicemembers to prove that they were not physically attracted to the same sex in order to qualify for continued military service.[6]<\/sup><\/sup><\/a><\/p>\n

But in Witt<\/em>, still three years before the military halted its enforcement of DADT,[7]<\/sup><\/sup><\/a> the Ninth Circuit held that, in order to constitutionally discharge any servicemember for homosexual orientation or conduct, the military was required to first prove that the servicemember\u2019s discharge significantly furthered, and was necessary to further, the military\u2019s interests in maintaining morale, unit cohesion, and good order and discipline in the Armed Forces.[8]<\/sup><\/sup><\/a> To establish the discharge\u2019s necessity, military separation authorities also had to establish on the record, prior to separation, that the military could not likely \u201cachieve substantially\u201d the same goals through any \u201cless intrusive means,\u201d such as transferring an outed servicemember to another unit.[9]<\/sup><\/sup><\/a> In 2009, the Defense Department\u2019s attorneys acknowledged in federal court that Witt <\/em>\u201cmade clear\u201d that the legality of DADT discharges had to be evaluated in the Ninth Circuit \u201cthrough an \u2018individualized balancing analysis\u2019 . . . tied \u2018specifically\u2019 to the circumstances of an individual.\u201d[10]<\/sup><\/sup><\/a> The Secretary of Defense, the Department of Defense General Counsel, and multiple service secretaries all subsequently testified before Congress that Witt <\/em>had changed the legal requirements for DADT discharges within the Ninth Circuit.<\/p>\n

However, despite these public acknowledgements, the military and its service secretaries took no action and gave commanders no guidance to comply with the Ninth Circuit\u2019s Witt Standard in any way, shape, or form. In short, the military chose to ignore the U.S. Court of Appeals. This was consistent with one author\u2019s observation that \u201c[i]t doesn\u2019t appear that any decision of any court actually impacted the manner in which the military administered DADT.\u201d[11]<\/sup><\/sup><\/a><\/p>\n

After the Witt <\/em>ruling in May 2008, the military proceeded to enforce DADT as usual. It involuntarily discharged well over 1,000 more men and women from the Armed Forces, at a time of war and severe manning shortages, on the sole basis of their sexual orientation, before DADT was finally repealed and its enforcement enjoined by court order in July 2011.[12]<\/sup><\/sup><\/a> The military ended these honorable, otherwise qualified servicemembers\u2019 careers without meeting, or even attempting to meet, its constitutionally-required burden under the Ninth Circuit\u2019s Witt Standard. <\/em>As a result of the military\u2019s failure to honor basic balance of powers principles and to afford servicemembers the individualized due process required by Witt<\/em>, a large number of servicemembers were discharged from the Armed Forces between May 2008 and July 2011 in violation of rights protected by the U.S. Constitution. Surprisingly, little legal scholarship has been published about their rights and legal injuries under Witt. <\/em><\/p>\n

This article will begin to fill that dearth of scholarship and analysis about the context and legal framework of the Witt <\/em>decision and the consequences of the military\u2019s failure to comply. It will rebut the military\u2019s false rationales for non-compliance, including its bizarre theory of judicial inferiority in military matters and its baseless concerns about disruption to military operations. It will also discuss other ways in which the military has shown itself well-practiced at rendering individualized determinations of servicemembers\u2019 fitness for duty to demonstrate that the military reasonably could and should have complied with the Ninth Circuit\u2019s ruling without delay.<\/p>\n

It is also intended that this Article and analysis will assist veterans\u2019 and gay rights advocates in developing cases seeking recovery and remuneration for the large number of servicemembers who were unconstitutionally discharged after and in violation of Witt. <\/em>Four discharged servicemen successfully brought two such cases in federal district courts in recent years; one even included a named plaintiff with essentially no ties to the Ninth Circuit.[13]<\/sup><\/sup><\/a> Both cases resulted in significant out-of-court settlements, which granted the plaintiffs requested relief of reinstatement on active duty, military retirement, or time-in-service credit with compensation for lost income and allowances.[14]<\/sup><\/sup><\/a> These cases should be just the beginning. A broader, informed litigation strategy or legislative fix is necessary to redress the military\u2019s failure to comply with Witt<\/em>, which has resulted in the arbitrary denial of discharged patriots\u2019 due process rights. <\/em>As federal courts\u2019 and military correction boards\u2019 statutes of limitations foreclose more and more DADT discharge cases in coming years,[15]<\/sup><\/sup><\/a> advocates and would-be plaintiffs must be mindful, well-informed, and savvy about their rights and legal options. This article intends to assist in their just endeavor for redress.<\/p>\n

 <\/p>\n

II. Background: Major Witt and the Road to a Heightened Scrutiny Standard for Gay Rights in Military Discharges<\/strong><\/p>\n

 <\/p>\n

A. Major Witt\u2019s Record of Exemplary Service and Suspension for Homosexuality<\/p>\n

Air Force Major Margaret Witt was an accomplished, decorated, and by all accounts outstanding flight nurse throughout 19 years in military service.[16]<\/sup><\/sup><\/a> She received superb performance evaluations and numerous high awards and honors in recognition of her superior career achievements. The Air Force made her a literal \u201cposter child\u201d in 1993, when it selected her to be prominently featured in its recruiting and promotional materials as the \u201cmodel\u201d Air Force nurse.[17]<\/sup><\/sup><\/a> Serving for most of her career in Aeromedical Evacuation Squadrons, Major Witt was responsible for providing inflight care and treatment of ill and injured servicemembers during transport aboard military aircraft.[18]<\/sup><\/sup><\/a> She served in Europe in the 1990\u2019s, caring for ill and wounded in Bosnia, and in the Middle East, where she served on dozens of flight missions to rescue and treat soldiers fighting in Iraq.[19]<\/sup><\/sup><\/a><\/p>\n

Recognition for her service included an Air Medal citation from President Bush commending her delivery of \u201coutstanding medical care\u201d to wounded servicemembers during Operation Enduring Freedom.[20]<\/sup><\/sup><\/a> The citation noted that \u201cher airmanship and courage directly contributed to the successful accomplishment of important missions under extremely hazardous conditions and demonstrate[d] her outstanding proficiency and steadfast devotion to duty.\u201d[21]<\/sup><\/sup><\/a> She was named Air Force Officer of the Quarter in late 2003, receiving an award \u201cgiven only to those individuals who have demonstrated exceptional professionalism, leadership and service to our country . . . [as] recognition for superior dedication . . . .\u201d[22]<\/a><\/p>\n

Photos of this \u201cposter child\u201d flight nurse appeared in Air Force ads and literature for more than a decade, [23]<\/sup><\/a><\/sup> even after her sudden involuntary suspension from the Air Force without pay in November 2004 pending investigation into an anonymous allegation that she was a lesbian.[24]<\/sup><\/sup><\/a> During a formal investigation into her private sexual history lasting for nearly seventeen months, she was prohibited from participating in military duties or activities. Moreover, she was barred from earning pay, points toward promotion, and time-in-service credit toward her military retirement, even though she was less than one year short of earning that lifetime pension for her years of service.[25]<\/sup><\/sup><\/a> In March 2006, Air Force officials finally informed Major Witt that they were initiating formal discharge proceedings against her\u2014terminating her from the military\u2014\u201con account of her homosexuality\u201d based on evidence that she had \u201cengaged in homosexual acts\u201d in a private, committed 6-year relationship with a civilian woman.[26]<\/sup><\/sup><\/a><\/p>\n

Regulations implementing Don\u2019t Ask, Don\u2019t Tell called for the mandatory discharge of all servicemembers who engaged in homosexual conduct, attempted to form a same-sex marriage, or indicated a \u201cpropensity\u201d to engage in such acts or relationships, for instance, by making a \u201chomosexual statement\u201d indicating their sexual orientation.[27]<\/sup><\/sup><\/a> Under these regulations, discharge was mandatory for all servicemembers in all of these circumstances except where the servicemember could demonstrate a predominantly heterosexual orientation.[28]<\/sup><\/sup><\/a> Major Witt could not and did not attempt to deny her orientation or same-sex relationship.<\/p>\n

In April 2006, Major Witt filed suit in the federal District Court for the Western District of Washington, seeking a preliminary injunction to enjoin the Air Force\u2019s discharge proceedings against her.[29]<\/sup><\/sup><\/a> Though the DADT statute had to date been upheld by every court to consider it,[30]<\/sup><\/sup><\/a> Major Witt argued that its application in her individual circumstances could not survive the \u201csearching constitutional inquiry\u201d[31]<\/a> required by the Supreme Court\u2019s 2003 ruling in Lawrence v. Texas<\/em>, in which the high Court held that \u201c[Homosexuals\u2019] right\u00a0<\/em><\/strong>to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.\u201d[32]<\/sup><\/sup><\/a> Major Witt argued that, in light of Lawrence<\/em>, her discharge under DADT was an as-applied violation of the Fifth Amendment\u2019s guarantee of substantive due process.[33]<\/sup><\/sup><\/a><\/p>\n

 <\/p>\n

B. The Military Prevails at the District Court Under Deferential Rational Basis Scrutiny<\/p>\n

In July 2006, U.S. District Court Judge Ronald Leighton rejected Major Witt\u2019s plea for injunctive relief and granted the Government\u2019s motion to dismiss her case on summary judgment.[34]<\/sup><\/sup><\/a> Judge Leighton\u2019s opinion acknowledged that he was \u201cnot unsympathetic to the situation in which Major Witt . . . [found] herself\u201d based on the fact that \u201cher colleagues value[d] her contribution to their unit and apparently want[ed] her back.\u201d[35]<\/sup><\/sup><\/a> \u201c[Major Witt] has served her country faithfully and with distinction,\u201d he wrote, so \u201c[i]t is tempting to accept [her] urging to apply DADT narrowly within the context of [her] individual circumstances.\u201d[36]<\/sup><\/sup><\/a> But \u201cthis,\u201d he concluded, \u201cthe Court cannot do.\u201d[37]<\/sup><\/sup><\/a><\/p>\n

Judge Leighton held that \u201cRational Basis review\u201d was the appropriate standard of scrutiny for laws impinging gay rights, and concluded that such deferential scrutiny did \u201cnot allow for the kind of balancing test between government interest and interest of the individual advocated by [Major Witt].\u201d[38]<\/sup><\/sup><\/a> That was particularly true, he said, because of a nebulous tradition of judicial deference to the political branches in making and enforcing personnel rules for the military. As he explained, \u201cCourt review of Congressional enactments is especially deferential in the military context. \u201cIt is difficult to conceive of an area of governmental activity in which\u00a0the courts have less competence.\u201d[39]<\/sup><\/sup><\/a> \u201c[E]very court,\u201d the Judge noted, \u201chas upheld the constitutionality of DADT under rational basis review,\u201d and \u201c[i]t is not for this Court, on rational basis review, to conduct a re-weighing of the evidence that was before the legislative decision-makers\u201d who enacted that statute.[40]<\/sup><\/sup><\/a><\/p>\n

Two months after Judge Leighton\u2019s decision, in September 2006, an Air Force administrative discharge board determined that Major Witt had engaged in homosexual acts and had admitted to being homosexual in violation of DADT.[41]<\/sup><\/sup><\/a> Acting on the board\u2019s recommendation, in July 2007, the Secretary of the Air Force ordered her to be discharged from the military.[42]<\/sup><\/sup><\/a> She received no pension or benefits to show for her 19 years in service. Because she was discharged for \u201chomosexuality,\u201d the military automatically reduced her severance pay by half.[43]<\/sup><\/sup><\/a><\/p>\n

For discharged servicemembers like her, the stigma of involuntary discharge often became a life-long indignity. On separation documents commonly requested by civilian and government employers, the military clearly and permanently stamped reasons for separation like \u201cHomosexual Act\u201d or \u201cHomosexual Statement,\u201d with negative \u201cre-entry codes\u201d indicating that these veterans were people the military would not take back under any circumstances. Those codes often rendered them ineligible for employment opportunities with law enforcement agencies and government contractors.[44]<\/sup><\/sup><\/a> Many of these men and women received less than honorable service characterizations too, which prevented them from accessing valuable benefits through the Department of Veterans Affairs, including funding for education and medical care, or the honor of burial in a veterans\u2019 cemetery.[45]<\/sup><\/sup><\/a><\/p>\n

\u00a0<\/strong><\/p>\n

C. The Witt Standard is Born at the Ninth Circuit<\/p>\n

On appeal before the Ninth Circuit Court of Appeals in May 2008, Major Witt won a staggering and unprecedented victory. In Witt v. <\/em>Dep\u2019t of the Air Force<\/em>, the Ninth Circuit ruled that the District Court had erred in granting the Government\u2019s motion to dismiss Major Witt\u2019s claim.[46]<\/a> In so doing, the court articulated what has come to be called the \u201cWitt Standard,\u201d which required heightened scrutiny and fact-specific, individualized justification for each individual\u2019s discharge under DADT. [47]<\/a><\/p>\n

Applying heightened scrutiny in Witt<\/em>, the Ninth Circuit invalidated the military\u2019s blanket application of DADT by holding that the Fifth Amendment\u2019s guarantee of substantive due process required consideration of each DADT discharge on its own facts.[48]<\/sup><\/sup><\/a> The court shifted the burden to the military to prove that each specific servicemember\u2019s discharge under DADT was \u201cnecessary\u201d to maintain military cohesion, morale, and discipline within his or her specific unit,[49]<\/sup><\/sup><\/a> and to prove that the military could not reasonably accomplish its goals by any \u201cless intrusive means,\u201d[50]<\/sup><\/sup><\/a> like transferring outed servicemembers to another unit. While the Ninth Circuit\u2019s decision did not overrule DADT outright, it made clear that the evidentiary burden had significantly shifted against the military in DADT cases; the military would now have to make individualized showings of necessity on record before it could lawfully discharge servicemembers for their sexual orientation within the Ninth Circuit\u2019s jurisdiction.[51]<\/sup><\/sup><\/a><\/p>\n

Witt<\/em> also made clear that the Ninth Circuit would grant the military little traditional deference. Though the Ninth Circuit acknowledged courts\u2019 traditional deference to Congress in matters concerning management of the military, it declared, \u201cNotably, deference does not mean abdication . . . . Congress, of course, is subject to the requirements of the Due Process Clause when legislating in the area of military affairs.\u201d[52]<\/sup><\/sup><\/a> That language was a far cry from district Judge Leighton\u2019s more traditional, self-abasing posture in military personnel matters, where, as he wrote, courts have little \u201ccompetence,\u201d even in cases with a constitutional dimension.[53]<\/sup><\/sup><\/a><\/p>\n

As Major Witt had urged, the Ninth Circuit Court rooted its heightened scrutiny Witt Standard in the U.S. Supreme Court\u2019s decision five years earlier in Lawrence v. Texas<\/em>,[54]<\/sup><\/sup><\/a> in which the Supreme Court declared that due process, \u201cas a general rule, should counsel against attempts by the State, or a court, to define the meaning of [an individual\u2019s personal] relationship or to set its boundaries absent injury to a person or abuse of an institution<\/em> the law protects . . . . [Homosexuals\u2019] right\u00a0<\/em><\/strong>to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.[55]<\/sup><\/sup><\/a> It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.\u201d[56]<\/sup><\/sup><\/a> The Witt<\/em> Court interpreted these words from Lawrence<\/em> to require that the military prove each individual servicemember\u2019s sexual orientation caused actual<\/em> \u201cinjury\u201d or \u201cabuse\u201d to the military, such that his or her involuntary discharge furthered, and was necessary to further, the military\u2019s interests. Otherwise, the military would be imposing indiscriminate, severe burdens on homosexual servicemembers\u2019 constitutionally protected \u201crealm of liberty\u201d and private lives.<\/p>\n

The Witt <\/em>Court also found the 2004 case of United States v. Marcum<\/em>[57]<\/sup><\/sup><\/a> particularly instructive.[58]<\/a> In Marcum<\/em>, the military\u2019s highest court, the Court of Appeals for the Armed Forces, had carefully considered whether Lawrence<\/em>\u2019s constitutional protections applied in the military context. The court considered whether Lawrence <\/em>protected a defendant from criminal prosecution under the Uniform Code of Military Justice (\u201cUCMJ\u201d) for homosexual acts with a subordinate. Though the court ultimately held against the defendant in that case on the grounds that the UCMJ prohibited sexual acts with a subordinate independent of sexual orientation, it explicitly rejected the argument that Lawrence<\/em>\u2019s due process protections did not apply in the military context.[59]<\/sup><\/sup><\/a> The Marcum<\/em> Court ruled that Lawrence<\/em>\u2019s constitutional protections had to be addressed in the context of each servicemember\u2019s specific case[60]<\/sup><\/sup><\/a> and then undertook a detailed, fact-specific analysis, which, the Ninth Circuit Court concluded in Witt<\/em>, \u201cnecessarily required more than hypothetical justification for the [military\u2019s homosexual conduct] policy\u201d and \u201capplied a heightened level of scrutiny.\u201d[61]<\/sup><\/sup><\/a><\/p>\n

Applying \u201cheightened scrutiny\u201d to DADT in light of these precedents, the Witt<\/em> Court ultimately ruled:
\nWe hold that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence<\/em>, the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words . . . a less intrusive means must be unlikely to achieve substantially the government\u2019s interest . . . .<\/p>\n

In addition, we hold that this heightened scrutiny analysis is as-applied rather than facial . . . . Under this review, we must determine not whether DADT has some hypothetical, posthoc rationalization in general, but whether a justification exists for the application of the policy as applied to Major Witt.[62]<\/sup><\/sup><\/a><\/p>\n

 <\/p>\n

The Witt<\/em> Court then firmly rejected the military\u2019s generic, post-hoc justification for DADT discharges, writing:<\/p>\n

 <\/p>\n

The Air Force attempts to justify the [DADT] policy by relying on congressional findings regarding \u201cunit cohesion\u201d and the like, but that does not go to whether the application of DADT specifically to Major Witt<\/em> significantly furthers the government\u2019s interest and whether less intrusive means would achieve substantially the government\u2019s interest.[63]<\/sup><\/sup><\/a><\/p>\n

 <\/p>\n

Applying this individualized balancing test, as the Marcum <\/em>Court had done, the Ninth Circuit then noted that \u201cMajor Witt was a model officer whose sexual activities hundreds of miles away from base did not affect her unit until the military initiated discharge proceedings under DADT and, even thenit was her suspension pursuant to DADT, not her homosexuality, that damaged unit cohesion.\u201d[64]<\/sup><\/sup><\/a>
\nD. A Different Tune from the District Court on Remand Suggests that the Military was Unlikely to Meet its Burden under Witt <\/em>in Most Other DADT Discharge Cases<\/p>\n

The Ninth Circuit remanded Major Witt\u2019s case to Judge Leighton at the district court level to apply the Ninth Circuit\u2019s new due process standard in her individual circumstances. But the Ninth Circuit\u2019s own language in Witt <\/em>left little room for him\u2014or other district courts\u2014to justify almost any servicemember\u2019s discharge under DADT. At trial on remand, the Government called only one material witness to testify about the potential negative impacts that Major Witt\u2019s homosexuality posed to the military\u2019s interests. General Charles Stenner, head of the Air Force Reserves, testified that he had never met Major Witt and that he had never knowingly met any gay person in his life, but he \u201cplead[ed] for uniformity and consistency in the administration of personnel policies\u201d despite the Ninth Circuit\u2019s clear requirement of a non-uniform, individualized analysis for such discharge cases.[65]<\/sup><\/sup><\/a><\/p>\n

Judge Leighton ultimately concluded:<\/p>\n

 <\/p>\n

The facts deemed worthy of mention by the Court of Appeals are inconsistent with the more deferential analysis advocated by the government . . . . The evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important government interest in advancing unit morale and cohesion. To the contrary, the actions taken against Major Witt had the opposite effect. . . .<\/p>\n

If DADT does not significantly further an important government interest . . . it cannot be necessary to further that interest . . . . Application of DADT therefore violates Major Witt’s substantive due process rights under the Fifth Amendment to the United States Constitution. She should be reinstated at the earliest possible moment. [66]<\/sup><\/a>[67]<\/sup><\/a><\/sup><\/p>\n

 <\/p>\n

Perhaps helpful to future practitioners, Judge Leighton also rejected the Government\u2019s argument that an amalgamation of broader conjectural fears about \u201cpush back\u201d from heterosexual servicemembers could justify the separation of a proven, qualified gay servicemember:<\/p>\n

 <\/p>\n

The possibility of such push back is off-set by the known negative impact of DADT upon the military: the loss of highly skilled and trained military personnel once they have been outed and the concomitant assault on unit morale and cohesion caused by their extraction from the military. In this regard, the Court notes the Army\u2019s policy of deploying openly gay or lesbian personnel if the discharge process has not yet begun when the order to deploy issues. In this time of war, the Army, at least, has decided that allowing openly gay service is preferable to going to war without a member of a particular unit.[68]<\/sup><\/sup><\/a><\/p>\n

 <\/p>\n

In light of these precedents, military officials in the Ninth Circuit would have to prove that DADT discharges were necessitated by fact-based determinations about the actual impacts of an individual\u2019s open service, without being able to lean on traditional judicial deference, Congressional findings, or conjectural \u201cpush back\u201d fears. It seems clear that in the vast majority of such cases, the military could not meet its burden under Witt <\/em>to prove the servicemember\u2019s discharge actually furthered and was necessary to further the military\u2019s interests.<\/p>\n

 <\/p>\n

III.\u00a0Military Officials Publicly Acknowledged that Witt <\/em>Placed Binding New\u00a0Requirements on Military Commands in the Ninth Circuit to Conduct DADT Discharges \u201cThrough an Individualized Balancing Analysis\u201d<\/strong><\/p>\n

\u00a0<\/strong><\/p>\n

After the Witt <\/em>decision, the military\u2019s highest officials publicly acknowledged that the individualized Witt Standard was binding on military commands in the Ninth Circuit. In the 2009 case of Log Cabin Republicans v. United States<\/em>, the Department of Defense\u2019s (\u201cDOD\u201d) attorneys defended DADT against attempts to invalidate the law entirely by arguing that Witt <\/em>was the appropriate standard for the separation of gay servicemembers in the Ninth Circuit. The Government argued that Witt <\/em>\u201cmade clear\u201d that the legality of DADT discharges must be evaluated \u201cthrough an \u2018individualized balancing analysis\u2019. . . tied \u2018specifically\u2019 to the circumstances of an individual.\u201d[69]<\/sup><\/sup><\/a> The Government\u2019s brief addressing due process had three headings, all of which cited to Witt <\/em>and to no other case.[70]<\/sup><\/sup><\/a> In a related case that same year, the U.S. Solicitor General, representing Defense Secretary Gates, cited Witt <\/em>as binding precedent too, arguing that a facial challenge to DADT was not ripe for Supreme Court review based on the fact that Witt<\/em> had only set binding rules governing DADT\u2019s \u201cconstitutional[ity] as applied.\u201d[71]<\/sup><\/sup><\/a> When it suited the military\u2019s needs, apparently, the Government was all too happy to cite Witt <\/em>as governing law permitting the separation of some<\/em> gay servicemembers.<\/p>\n

DOD\u2019s courtroom attorneys were not the only military figures to publicly acknowledge Witt <\/em>as binding Ninth Circuit law. The Defense Department\u2019s General Counsel, Jeh Johnson, now serving as Homeland Security Secretary, testified before the House Armed Services Oversight and Investigations Subcommittee in May 2010:<\/p>\n

 <\/p>\n

The decision in Witt <\/em>v.<\/em> Department of the Air Force <\/em>in the Ninth Circuit creates what we lawyers call a split in the circuits. The rule of law there is different than the rule of law in all the other circuits. We and the Department of Justice have been very actively working through how that split in the circuits should be applied and implemented throughout the force . . . . [W]e continue to work through how to address whatever pending cases exist within the Ninth Circuit versus the other circuits.[72]<\/sup><\/sup><\/a><\/p>\n

The Chairman of that House Committee, Rep. Vic Snyder, also asked Secretary of the Air Force, Michael Donley: \u201cHas your legal team kept you up to speed on the fact that there is now a split of authority between the circuit Court[s] of Appeal with regard to . . . the Witt<\/em> case? Are you aware that we have different standards now [for DADT discharges] in the different circuits of the country?\u201d Secretary Donley declared simply, \u201cYes.\u201d[73]<\/sup><\/sup><\/a><\/p>\n

Finally, in testimony before the Senate Armed Services Committee, Defense Secretary Robert Gates said plainly, \u201cWe have to devise new rules and procedures in light of the appeals court decision in Witt<\/em> v. Department of the Air Force<\/em> for the areas of the country covered by the [Ninth Circuit] appellate court.\u201d[74]<\/sup><\/sup><\/a><\/p>\n

By that point in time, the military had already failed to devise Witt<\/em>-compliant rules and procedures for two years<\/em> and it had already been citing Witt <\/em>in federal courts as settled, binding law for much of that time. Despite the military\u2019s public acknowledgements that it was bound to honor the Witt Standard, it did not even attempt to do so. The military never devised any new rules and never issued commanders any new guidance about Witt<\/em>-compliant discharge procedures at any time. For large numbers of servicemembers discharged for their sexual orientation between May 2008 and July 2011, Witt <\/em>might just as well never have existed.<\/p>\n

 <\/p>\n

IV. The DOD General Counsel Affirmed that the Military Took No Action to Comply with Witt <\/em>Due to a Bizarre Balance of Powers Theory that the Military Needed to \u201cBalance\u201d the Ninth Circuit Court\u2019s Ruling Against the DADT Law as Written<\/strong><\/p>\n

 <\/p>\n

Clues about why the military failed to comply with Witt <\/em>after acknowledging its duty to do so may be found in the muddled additional testimony provided by DOD\u2019s General Counsel, Jeh Johnson, about the Witt<\/em> case. In the same March 2010 hearing detailed above, Chairman Snyder pressed Mr. Johnson to clarify whether the military was planning to \u201csend direction to commanders and legal authorities throughout [the Ninth Circuit] States that there is now a category of gay and lesbian servicemembers that . . . indeed can serve [openly].\u201d[75]<\/sup><\/sup><\/a> The alternative, the Chairman warned, would be to \u201ctake every [DADT] case to the courts and lose at the district court level who [would] cite the Ninth Circuit [Witt <\/em>decision] over and over and over again.\u201d[76]<\/sup><\/sup><\/a><\/p>\n

Mr. Johnson\u2019s response confirmed that the military favored a do-nothing approach grounded in a bizarre and false notion that the military had to engage in \u201ca complex exercise\u201d to determine when and whether to comply with federal court rulings.[77]<\/a> Mr. Johnson responded:<\/p>\n

 <\/p>\n

The Witt <\/em>case requires an intermediate level of constitutional scrutiny to the [DADT] policy. We have to balance that against applying the law as the Congress has given [it] to us. We say consistently within the Department of Defense that we apply the law, we faithfully implement the law in as fair and as balanced a way as possible. We have got to balance that against the rule of law that Witt <\/em>has created for us in the Ninth Circuit. It is a complex exercise that we are working through right now. . . .[78]<\/sup><\/sup><\/a><\/p>\n

 <\/p>\n

In seeming disbelief, the Committee Chairman asked Mr. Johnson yet again to clarify whether \u201cthere [had] been no different directions given to base commanders, Judge Advocate General (JAG) officers, that in a certain number of cases meeting certain criteria, there is no reason to move ahead with those cases because they would be overturned in the Ninth Circuit.\u201d[79]<\/sup><\/sup><\/a> Mr. Johnson responded that the military had not given any such direction to comply with Witt<\/em>.[80]<\/sup><\/sup><\/a><\/p>\n

That testimony from the military\u2019s chief lawyer encapsulated a tellingly bizarre and improper theory of judicial inferiority or insignificance in military affairs\u2014a view that the military must balance binding court interpretations of the Constitution against the military\u2019s own interpretation of what the law is and requires. Those are and must be false choices.[81]<\/sup><\/sup><\/a> In a civilian democracy as ours, with equal and balanced separation of powers, the military should face no legal conflict when federal courts hold that acts of Congress, or their method of application, are unconstitutional.[82]<\/sup><\/sup><\/a> In Witt<\/em>, the Ninth Circuit was clear enough: \u201cAll of Congress\u2019s laws must abide by the United States Constitution,\u201d the court declared,[83]<\/sup><\/sup><\/a> as \u201cCongress, of course, is subject to the requirements of the Due Process Clause when legislating in the area of military affairs. . . .\u201d[84]<\/sup><\/sup><\/a> There should have been no dithering or balancing act and no \u201ccomplex exercise\u201d required to determine whether to comply with an Appeals Court\u2019s unambiguous ruling on a constitutional question. The military was required to provide individualized, Witt<\/em>-compliant justification for each DADT discharge within the Ninth Circuit after its May 2008 Witt <\/em>ruling. The military acknowledged its duty to comply with that requirement. At the command-level, the military was also, as discussed below, in fact well practiced at making such individualized determinations of fitness for duty. Given a clear and feasible court standard, the military had no legitimate rationale for its damaging, years-long failure to comply.<\/p>\n

 <\/p>\n

V. Contrary to Its Public Rationale for Non-Compliance, the Military Could Reasonably Have Implemented Witt<\/em>-Compliant Discharge Procedures With Minimal Confusion or Delay<\/strong><\/p>\n

\u00a0<\/strong><\/p>\n

As a Supreme Court nominee in June 2010, Elena Kagan testified before the Senate Judiciary Committee about her role as Solicitor General in declining to appeal Witt<\/em> to the Supreme Court. Her testimony suggested that that the Government believed it could essentially wait out the courts, assured that the district court\u2019s application of the Witt Standard to Major Witt on remand would prove unworkable and demonstrate that the Ninth Circuit\u2019s requirements were radical and unreasonably disruptive in practice.[85]<\/sup><\/sup><\/a> Over two years after the Ninth Circuit ruling, Ms. Kagan testified:<\/p>\n

 <\/p>\n

[W]hat the Ninth Circuit was demanding that the government do was, in the government\u2019s view, and in particularly in DOD\u2019s view, a kind of strange thing where the government would have to show, in each particular case, that a particular separation caused the military harm, rather than to view it in general across the statute.<\/p>\n

And one reason we thought that the remand would actually strengthen the case in the Supreme Court was because the remand would enable us to show what this inquiry would look like, what . . . the inquiry that the Ninth Circuit demanded would look like, and to suggest to the Supreme Court, using the best evidence there was, how it was that this inquiry really would disrupt military operations.[86]<\/sup><\/sup><\/a><\/p>\n

 <\/p>\n

Essentially, Ms. Kagan suggested, the military delayed compliance with an unduly onerous Ninth Circuit ruling while it built the case against it. But the implication that Witt <\/em>was a radically disruptive \u201cstrange thing\u201d does not withstand scrutiny. First, Ms. Kagan implied another set of false choices to justify the military\u2019s do-nothing approach. If the military feared the disruptive administrative burdens of individual DADT trials, it had all the more reason to issue Witt<\/em>-compliant rules and guidance to commanders and military attorneys in the Ninth Circuit states while Witt <\/em>remained good law in that Circuit. Ignoring the dictates of a federal appeals court is a very curious way to discourage disruptive litigation under that court\u2019s precedents. As Chairman Snyder repeatedly warned in congressional hearings with DOD\u2019s General Counsel, the military\u2019s true choice was whether to issue Witt-<\/em>compliant regulatory guidance or, in the alternative, to \u201ctake every [DADT] case to the courts and lose at the district court level who [would] cite the Ninth Circuit [Witt <\/em>decision] over and over and over again.\u201d[87]<\/sup><\/sup><\/a><\/p>\n

Second, Ms. Kagan\u2019s characterization of Witt<\/em>\u2019s individualized justification requirement as novel \u201cstrange thing\u201d does not withstand scrutiny either. Though Witt<\/em> created a significantly heightened due process standard for DADT discharges, its requirement of individual justification was hardly radical or burdensome. Military separation authorities were and are well practiced at making individualized determinations concerning servicemembers\u2019 fitness for service.[88]<\/sup><\/sup><\/a> Commanders regularly make contextual, nuanced decisions regarding whether a servicemember\u2019s misconduct should result in his or her discharge from the military. With advice from Staff Judge Advocate (JAG) attorneys, these commanders are trusted to weigh the individual servicemember\u2019s conduct and the actual impact on the military mission against his or her performance record and potential for rehabilitation to productive service.<\/p>\n

In the pre-DADT era, the military\u2019s anti-gay regulations had also expressly permitted commanders to make \u201cexceptions\u201d in individual cases when they determined that retention of specific openly gay servicemembers was in the military\u2019s best interests.[89]<\/sup><\/sup><\/a> The military retained numerous openly gay soldiers under this standard and explicitly determined that these members served honorably and productively without negative impact on their unit\u2019s performance, morale, or discipline.[90]<\/sup><\/sup><\/a> A \u201ckind of strange thing,\u201d Witt<\/em> was not: commanders had previously been permitted to conduct the same sort of individualized balancing analysis in considering the same sort of \u201chomosexuality discharges.\u201d<\/p>\n

In fact, the Witt Standard merely required commanders to make the same case-by-case determination in DADT discharges that the military already permitted<\/em> them to make in discharging proven child molesters. Air Force Instruction 36-3208, for instance, afforded proven child molesters the opportunity to prove on a case-by-case basis that their presence in a specific unit was not disruptive, while irrationally denying homosexuals the same opportunity.[91]<\/a> That regulation stated that Air Force commanders \u201cmay\u201d discharge airmen who committed \u201cindecent acts with or assault on a child,\u201d[92]<\/sup><\/sup><\/a> while mandating that commanders \u201cshall\u201d discharge those with a mere \u201cpropensity\u201d to engage in constitutionally protected same-sex relations with a consenting adult.[93]<\/sup><\/sup><\/a> It is difficult to conceive of a class of servicemembers whose presence is more likely to have a degrading effect upon military cohesion, morale, and discipline than proven child abusers. Yet their exclusion from military service was not mandatory, as it was for gays and lesbians. Somehow, commanders were able to make individualized determinations in those cases without disrupting military operations.<\/p>\n

Major Witt\u2019s trial brief at the district court on remand also pointed out that despite the military\u2019s insistence that a non-uniform rule would disrupt military operations, \u201cthe Armed Forces no longer even ha[d] a \u2018uniform\u2019 rule about uniforms . . . . The Army recently decided to allow a devout Sikh doctor to wear a turban instead of the usual Army headgear . . . follow[ing] a longstanding practice of deciding such requests on a case-by case basis . . . . [T]he Army had weighed [the individual servicemember\u2019s] request against factors such as \u2018unit cohesion, morale, discipline, safety, and\/or health.\u2019\u201d[94]<\/sup><\/sup><\/a><\/p>\n

The military clearly appreciated the value of substantiating servicemembers\u2019 quality, character, and discharges on an individualized basis and its commanders were evidently readily capable of making such case-by-case determinations. Witt<\/em> required commanders to do so in DADT cases and to prove that no less burdensome alternative, short of discharge, could reasonably accomplish the military\u2019s objectives. That was a high but familiar burden with clear requirements, which the military simply and unacceptably ignored. The fact that military leadership failed to devise a simple rule informing commanders of their obligation to substantiate the necessity of each DADT discharge on a case-by-case basis or to conduct the same \u201cindividualized balancing analysis\u201d it already permitted in child molester discharge cases should not have absolved the military of its duty to honor the Constitution and comply with the Ninth Circuit\u2019s ruling without delay.<\/p>\n

This indicates that the Government chose not to comply with Witt <\/em>for political reasons, not ones rationally related to national defense. In every federal case brought under the Witt Standard, the military proved unable to cite actual, individualized proof that gay servicemembers\u2019 discharges were justified by military necessity.[95]<\/a> The military was unable to present any such evidence in Major Witt\u2019s case, instead calling in a solitary witness who had never met Major Witt or any other gay person to plead for uniformity in a case about individualized due process analysis.[96]<\/a> When one of the plaintiff servicemembers in Almy <\/em>invoked the Witt Standard prior to his discharge, his command specifically refused to provide individualized justification for his discharge.[97]<\/a><\/p>\n

It appears then that the sole military operation truly disrupted by Witt-<\/em>compliance would be the military\u2019s bizarre, archaic, and corrosive process of discarding qualified servicemembers for their sexual orientation. Rather than face down the incoherence and baselessness of that policy as applied in the vast majority of individual cases, the military appears to have punted and dithered, ignoring Witt<\/em>\u2019s requirements for years while awaiting DADT\u2019s ultimate legislative repeal.<\/p>\n

Whatever the merits of that strategy, non-compliance inflicted legal injury on a large and foreseeable scale: at least hundreds of dedicated men and women in uniform fell through the gaps and lost their military careers without any actual or individualized justification and in violation of their due process rights protected by the U.S. Constitution. Those men and women must be informed and savvy about their legal injuries and rights to redress.<\/p>\n

 <\/p>\n

VI. A Post-Witt <\/em>DADT Case Study[98]<\/sup><\/sup><\/a><\/strong><\/p>\n

 <\/p>\n

In September 2009, just two years before DADT faded into the history books, Air Force officials pulled 20 year-old airman Jason Garcia from his security detail in Iraq, raided his bedroom and belongings, and interrogated him for hours. They transferred him thousands of miles to his stateside commanders in Washington State, who then abruptly ended his military career with a stigmatizing discharge based on a two-sentence Commander\u2019s Report concluding that Mr. Garcia had \u201cmade a statement that he was homosexual in violation of [DADT\u2019s implementing regulations].\u201d After spending almost his entire adulthood on the front lines in Iraq, Mr. Garcia lost his career in a matter of days after posting a comment for homework credit in an online civilian psychology course about struggling with self-acceptance as a gay man. To substantiate his discharge for \u201chomosexual conduct (statement),\u201d his stateside command produced an Investigator\u2019s Report with just two exhibits: 1) his psychology course posting and 2) a page torn from a confiscated high school diary in which he had, as a teen, privately written about a same-sex crush. Mr. Garcia was a well-liked, honorable airman committed to military and his mission. His discharge senselessly deprived his unit of a valued asset and a good man.<\/p>\n

The military\u2019s actions in his case were also blatantly unlawful. Mr. Garcia\u2019s commanders in Washington State, within the Ninth Circuit, did not meet or even attempt to meet the constitutionally-required due process standard the Ninth Circuit had demanded in Witt <\/em>a full 19 months prior. The military provided absolutely no individualized justification for his discharge and did not attempt in any way to link it to military necessity. His commanders concluded his online statement indicated a \u201cpropensity\u201d to engage in homosexual conduct\u2014namely a sexual orientation\u2014and that was the end of their inquiry. Mr. Garcia\u2019s cursory, abusive, and baseless discharge seems to be the exact sort of situation Witt <\/em>was intended to prevent. But in his discharge action, the Witt Standard might as well have been non-existent although it was already nearly two years old.<\/p>\n

Well over 1,000 men and women were, like Mr. Garcia, discharged under DADT on the sole basis of their sexual orientation between May 2008, the date of the Ninth Circuit\u2019s Witt <\/em>ruling, and July 2011, when DADT was finally enjoined by court order.[99]<\/sup><\/sup><\/a> It is doubtful that many of those discharges could meet, or ever attempted to meet, the Ninth Circuit\u2019s high burden of proof. Military commanders and attorneys, after all, received no guidance or instruction to comply with Witt<\/em> in any form, as DOD\u2019s General Counsel, Jeh Johnson, conceded to Congress.[100]<\/a> And the military\u2019s failure to provide any individualized basis for applying DADT to qualified servicemembers like Major Witt also suggested it simply could not do so for the vast majority of DADT discharges. As a result of the military\u2019s non-compliance, commanders within Ninth Circuit states continued, as they had before, to justify involuntary terminations of these dedicated servicemembers based entirely on evidence\u2014like Mr. Garcia\u2019s high school diary entry\u2014that they were gay. Mr. Garcia\u2019s statements about his sexual orientation in an online civilian psychology class did not, and could not, so threaten morale, discipline, or cohesion in his unit that his separation from duty was necessary<\/em> and the least intrusive means of accomplishing the military mission. In fact, because no one in Mr. Garcia\u2019s unit was aware of his online statement until his sudden separation from duty, it highly doubtful that the military could have cogently argued that his sexual orientation caused negative impacts in his individual circumstances. As in Major Witt\u2019s case, it was his separation from duty and sudden involuntary departure from his unit in Iraq that truly threatened the morale, discipline, cohesion, and safety of his fellow servicemembers, and not his sexual orientation.<\/p>\n

Federal courts treat a military discharge as wrongful and \u201cvoid,\u201d even if the military \u201ccould have validly discharged [the servicemember] at the time it did so invalidly.\u201d[101]<\/sup><\/sup><\/a> Therefore, where military separation authorities within the Ninth Circuit\u2019s jurisdiction failed to provide Witt<\/em>-compliant due process after May 2008, discharged servicemembers like Mr. Garcia should have a strong case for wrongful termination from military service.<\/p>\n

Judicial relief for military servicemembers who have been wrongfully discharged is premised on the central principle of making the injured servicemembers \u201cwhole.\u201d[102]<\/sup><\/sup><\/a> A court\u2019s remedy aims to return these servicemembers to the position they would have occupied \u201cbut for\u201d their illegal or invalid release from duty.[103]<\/sup><\/sup><\/a> To make these discharged men and women even partially \u201cwhole\u201d again, they must be reinstated on active duty or else receive recovery of the active duty pay and allowances they lost through the time their term of enlistment ordinarily would have expired, but for the military\u2019s unlawful actions.[104]<\/sup><\/sup><\/a><\/p>\n

In two cases brought within the Ninth Circuit based on the military\u2019s failure to comply with Witt\u2014Fehrenbach v. Department of the Air Force<\/em>[105]<\/sup><\/sup><\/a> in 2010 and Almy v. U.S. Department of Defense<\/em>[106]<\/sup><\/sup><\/a> in 2013\u2014the military settled out of court by granting reinstatement, retirement, or lost pay and allowances with interest to four gay servicemembers discharged after Witt <\/em>without Witt<\/em>-compliant due process.[107]<\/sup><\/sup><\/a> Though those full settlements represent huge victories for those individuals, those cases\u2019 out of court settlements prevented federal courts from weighing in, applying Witt<\/em>, and building a clear precedential consensus that servicemembers discharged without Witt-<\/em>compliant due process should receive redress. As a result, there is to date no published precedent from any federal court or from the services\u2019 respective (and powerful) boards for correction of military records ruling one way or another on a discharged servicemember\u2019s claim for redress under Witt<\/em>. That must change.<\/p>\n

\u00a0<\/em><\/p>\n

VII.\u00a0\u00a0\u00a0\u00a0\u00a0 Conclusion<\/strong><\/p>\n

 <\/p>\n

Because essentially no legal scholarship has been published concerning the military\u2019s failure to comply with Witt<\/em>, very few servicemembers are likely to know that they should have received significantly heightened due process during their discharges. If they sought legal counsel, particularly from military JAG attorneys, it is doubtful that they would have been accurately informed and equipped to invoke their constitutional rights under Witt. <\/em>When a plaintiff in the Almy <\/em>case attempted to do so prior to his discharge, his command explicitly declined to provide Witt<\/em>-compliant justification.[108]<\/a> Therefore, veterans and gay rights advocates must be savvy about the post-Witt <\/em>legal landscape and help identify discharged servicemembers who were unknowingly wronged by the military\u2019s non-compliance. The military made a choice to ignore a federal court\u2019s constitutional due process standard and it must be held accountable for the legal injuries resulting from that choice.<\/p>\n

To prevent the military from clogging federal courts with hundreds of duplicative cases re-litigating its failure to comply with Witt<\/em>, Congress should also step in to take appropriate legislative action to compensate those discharged under DADT in violation of Witt <\/em>after May 2008. <\/em>A case-by-case review of these discharges would also be appropriate and hardly unprecedented. Section 530B of H.R. 1960, The 2014 National Defense Authorization Act similarly required the DOD Inspector General to \u201creview the cases of all members who, since January 1, 2002, were separated after making an unrestricted report of sexual assault,\u201d to ensure those servicemembers\u2019 due process rights were validly protected throughout the discharge process. A similar review of post-Witt <\/em>DADT discharges would be administratively feasible and much less timely and costly than duplicative litigation in federal court. At the very least, DOD should instruct the respective services\u2019 boards for correction of military records to normally grant claims for lost pay and allowances where the record indicates the servicemember was discharged under DADT after May 2008 without any aggravating factors supporting his or her discharge. DOD guidance memoranda have, since September 2011, instructed these powerful intra-military administrative boards to \u201cnormally\u201d grant requests from those discharged under DADT to upgrade their service characterization to fully Honorable, absent these aggravating circumstances.[109]<\/sup><\/sup><\/a> Extension of that guidance to remedy the military\u2019s non-compliance with Witt <\/em>should be administratively uncomplicated and equitable and cannot come too soon.<\/p>\n

Notes<\/em><\/p>\n

[1]<\/sup><\/sup><\/a> The author is a pro bono veterans\u2019 attorney and Post-Doctoral Fellow at the Military Law Institute in Orange, California, where he represented an Air Force veteran in alleging his discharge from service under Don\u2019t Ask, Don\u2019t Tell unlawfully failed to comply with the Witt Standard discussed throughout this article. Mr. Freilich is a graduate of Stanford Law School.<\/p>\n

[2]<\/sup><\/sup><\/a> 527 F.3d 806 (9th Cir. 2008).<\/p>\n

[3]<\/sup><\/sup><\/a> Id. <\/em>at 819; see also <\/em>Witt v. U. S. Dep’t of Air Force, 444 F. Supp. 2d 1138, 1145 (W.D. Wash. 2006) aff’d in part, rev’d in part sub nom.<\/em> Witt v. Dep’t of Air Force, 527 F.3d 806 (9th Cir. 2008) (observing that \u201cevery court, before and after Lawrence <\/em>[v. Texas<\/em>] ha[d] upheld the constitutionality of DADT under rational basis review.\u201d).<\/p>\n

[4]<\/sup><\/sup><\/a> The United States Court of Appeals for the Ninth Circuit is the highest federal court, except for the U.S. Supreme Court, with appellate jurisdiction in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.<\/p>\n

[5]<\/sup><\/sup><\/a> Witt<\/em>, 444 F. Supp. 2d at 1145.<\/p>\n

[6]<\/sup><\/sup><\/a> See, e.g.<\/em>, Richenberg v. Perry, 97 F.3d 256, 262 (8th Cir. 1996) (upholding the discharge of outed military officer under DADT for failing to rebut legal presumption that he had \u201cpropensity\u201d to engage in homosexual conduct, despite his promise to abstain from homosexual conduct, because under cross-examination he admitted to being physically attracted to the same sex).<\/p>\n

[7]<\/sup><\/sup><\/a> See<\/em> Log Cabin Republicans v. United States, 716 F. Supp. 2d 884, 922 (C.D. Cal. 2010); Log Cabin Republicans v. United States, 2011 U.S. App. LEXIS 16134 (9th Cir. Jul. 6, 2011); Log Cabin Republicans v. United States, 2011 U.S. App. LEXIS 16310 at *5 (9th Cir. Jul. 22, 2011) (\u201cThe district court\u2019s judgment shall continue in effect insofar as it enjoins the government from investigating, penalizing, or discharging anyone from the military pursuant to the Don’t Ask, Don’t Tell policy.\u201d); see also <\/em>Andrew Tilghman, Pentagon Suspends DADT in Wake of Court Ruling<\/em>, Army Times (Jul. 8, 2011), http:\/\/www.armytimes.com\/article\/20110708\/NEWS\/107080319\/Pentagon-suspends-DADT-in-wake-of-court-ruling<\/a>, archived at <\/em>http:\/\/perma.cc\/F6DV-5LLJ.<\/p>\n

[8]<\/sup><\/sup><\/a> Witt<\/em>, 527 F.3d at 819.<\/p>\n

[9]<\/sup><\/sup><\/a> Id. <\/em>(\u201cIn other words . . . a less intrusive means must be unlikely to achieve substantially the government\u2019s interest.\u201d); see also\u00a0<\/em>Aptheker v. Sec\u2019y of State, 378 U.S. 500, 508 (1964) (\u201cEven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.\u201d).<\/p>\n

[10]<\/sup><\/sup><\/a> Defendants\u2019 Supplemental Brief Addressing Substantive Due Process at 6, Log Cabin Republicans v. United States, 716 F. Supp. 2d 884 (C.D. Cal. 2009) (hereinafter Log Cabin<\/em> Substantive Due Process Brief) (No. CV04-8425) (internal citation omitted).<\/p>\n

[11]<\/sup><\/sup><\/a> Walter Frank, Law and the Gay Rights Story: The Long Search for Equal Justice in a Divided Democracy 131 (2014).<\/p>\n

[12]<\/sup><\/sup><\/a> More than 1,000 servicemembers were separated under DADT in 2008 and 2009. See <\/em>The Williams Institute, Discharges Under the Don\u2019t Ask, Don\u2019t Tell Policy 1, 5 (2010), http:\/\/williamsinstitute.law.ucla.edu\/wp-content\/uploads\/sites\/88\/Gates-Discharges2009-Military-Sept-2010.pdf<\/a>, archived at <\/em>http:\/\/perma.cc\/H568-K9SS. Hundreds more were separated in 2010. See <\/em>Andrea Stone, Pentagon Discharged Hundreds of Service Members Under \u2018Don\u2019t Ask, Don\u2019t Tell\u2019 in Fiscal 2010: Report<\/em>, Huffington Post (May 25, 2011), http:\/\/www.huffingtonpost.com\/2011\/03\/24\/dont-ask-dont-tell-2010-discharges_n_840136.html<\/a>, archived at <\/em>http:\/\/perma.cc\/H568-K9SS. Though the military has not reported any breakdown of its discharge numbers by installation or geographic area, a presumably large portion of these servicemembers could establish proper venue in judicial districts within the Ninth Circuit to avail themselves of the Ninth Circuit standard. In the case of Almy v. U.S. Department of Defense, (N.D. Cal. 2013) (No: 10-5627) (RS), the named plaintiff received a substantial monetary settlement with the Air Force on his claim for unlawful discharge under Witt<\/em>, even though he was a resident of Washington, D.C. and had no evident ties to the Ninth Circuit states.<\/p>\n

[13]<\/sup><\/sup><\/a> See <\/em>Fehrenbach v. Air Force, Case No. 10-00402 (D. Idaho 2010); Almy v. U.S. Dep\u2019t of Defense, Case No: cv 10-5627 (RS) (N.D. Cal. 2013).<\/p>\n

[14]<\/sup><\/sup><\/a> See <\/em>Breaking Update: U.S. Dept. of Justice, Air Force Reach Agreement with Lt. Col Fehrenbach<\/em>, OutServe-SLDN (Aug. 16, 2010), http:\/\/www.sldn.org\/news\/archives\/breaking-update-u.s.-dept.-of-justice-u.s.-air-force-reach-federal-cou\/<\/a>, archived at <\/em>http:\/\/perma.cc\/A8UJ-M32K<\/a> [hereinafter Breaking Update: U.S. Dept. of Justice, Air Force Reach Agreement with Lt. Col Fehrenbach]; OutServe-SLDN Announces Settlement for Almy<\/em>, Outserve-SLDN (Mar. 15, 2013), at [Yana \u2013 there\u2019s inconsistency when including the hyperlink] http:\/\/www.sldn.org\/news\/archives\/outserve-sldn-announces-settlement-for-almy\/<\/a>, archived at<\/em> http:\/\/perma.cc\/7AUM-R3VS.<\/p>\n

[15]<\/sup><\/sup><\/a> Under 10 U.S.C. \u00a7 1552(b) (2012), claims challenging the propriety or equity of a servicemember\u2019s discharge before intra-military administrative correction boards must be brought within three years after the servicemember \u201cdiscovers the error or injustice.\u201d That statute of limitations may be waived at the administrative board\u2019s discretion if it would be \u201cin the interest of justice\u201d to do so. Cases seeking federal court review of these administrative boards\u2019 final decisions are also subject to a six-year statute of limitations. 28 U.S.C. \u00a7 2401(a); Lebrun v. England, 212 F. Supp. 2d 5, 16 (D.D.C 2002) (the right to obtain judicial review of a Board of Corrections\u2019 decision under the Administrative Procedures Act accrues at the time of the final agency decision rather than at the time when the underlying discharge occurred). If the servicemember wishes to bring suit under the Military Pay Act and seeks monetary damages in excess of $10,000, the \u201cBig Tucker Act\u201d applies and exclusive jurisdiction lies, with limited exceptions, with the U.S. Court of Federal Claims. See 28 U.S.C. \u00a7 1491(a)(1). In these cases, the Court of Federal Claims tolls the six-year statute of limitation from the date of the applicant\u2019s discharge or separation. 28 U.S.C. \u00a7 250. See also<\/em> Raymond J. Toney, Military Record Correction Boards and Their Judicial Review (2010), http:\/\/www.texasbar.com\/flashdrive\/materials\/military_law\/militarylaw_toney_militaryrecord_finalarticle.pdf<\/a>, archived at <\/em>http:\/\/perma.cc\/438J-JV3E.<\/em><\/p>\n

[16]<\/sup><\/sup><\/a> Witt v. Dep\u2019t of Air Force, 527 F.3d 806, 809\u201310 (9th Cir. 2008)<\/p>\n

[17]<\/sup><\/sup><\/a> Id. <\/em>at 809.<\/p>\n

[18]<\/sup><\/sup><\/a> Plaintiff\u2019s Motion for Preliminary Injunction and Memorandum in Support of Preliminary Injunction Motion at 4, Witt v. U.S. Dep\u2019t of Air Force, 444 F. Supp. 2d at 1138 (W.D. Wash. 2006) (No. C06-5195 RBL) [hereinafter Plaintiff\u2019s Memorandum].<\/p>\n

[19]<\/sup><\/sup><\/a> Id.<\/em><\/p>\n

[20]<\/sup><\/sup><\/a> ACLU Wins Reinstatement for Lesbian Air Force Major Discharged Under \u201cDon\u2019t Ask, Don\u2019t Tell,\u201d<\/em> ACLU (Sept. 24, 2010), https:\/\/www.aclu.org\/lgbt-rights\/aclu-wins-reinstatement-lesbian-air-force-major-discharged-under-dont-ask-dont-tell<\/a>, archived at <\/em>http:\/\/perma.cc\/57RC-XKQ8.<\/p>\n

[21]<\/sup><\/sup><\/a> Plaintiff\u2019s Memorandum supra<\/em> note 19, at 4.<\/p>\n

[22]<\/a> Id. <\/em>at 4\u20135.<\/p>\n

[23]<\/sup><\/sup><\/a> Id.<\/em> at 6.<\/p>\n

[24]<\/sup><\/sup><\/a> Witt v. U.S. Dep\u2019t of Air Force, 444 F. Supp. 2d 1138, 1141 (W.D. Wash. 2006).<\/p>\n

[25]<\/sup><\/sup><\/a> Witt<\/em>, 527 F.3d at 810.<\/p>\n

[26]<\/sup><\/sup><\/a> Id<\/em>.<\/p>\n

[27]<\/sup><\/sup><\/a> DOD Dir. 1332.14, Encl. 2, Definition G, Encl. 3 (1993) (repealed 2010).<\/p>\n

[28]<\/sup><\/sup><\/a> DOD Dir. 1304.26 Encl. C (1993) (repealed 2010).<\/p>\n

[29]<\/sup><\/sup><\/a> Witt<\/em>, 527 F.3d at 810.<\/p>\n

[30]<\/sup><\/sup><\/a> Witt<\/em>, 444 F. Supp. 2d at 1145.<\/p>\n

[31]<\/sup><\/sup><\/a> Id<\/em>. at 1143 (quoting United States v. Marcum, 60 M.J. 198, 204 (C.A.A.F. 2004)).<\/p>\n

[32]<\/sup><\/sup><\/a> 539 U.S. 558, 578 (2003).<\/p>\n

[33]<\/sup><\/sup><\/a> U.S. Const. amend. V (\u201cNo person shall be . . . deprived of life, liberty, or property, without due process of law[.]\u201d). Substantive due process protects those rights so fundamental as to be \u201cimplicit in the concept of ordered liberty.\u201d Palko v. Connecticut, 302 U.S. 319, 324\u201325 (1937). In Roberts v. U.S. Jaycees, 468 U.S. 609, 618-19 (1984), the Supreme Court wrote that under its substantive due process jurisprudence, \u201ccertain kinds of highly personal relationships\u201d are entitled to \u201ca substantial measure of sanctuary from unjustified interference by the State,\u201d and that such constitutional protection \u201csafeguards the ability independently to define one\u2019s own identity that is central to any concept of liberty.\u201d Three years later, the Court unambiguously stated that the \u201cfreedom to enter into and carry on certain intimate or private relationships [is] a fundamental element of liberty <\/em>protected by the Bill of Rights.\u201d Bd. of Dirs. v. Rotary Club, 481 U.S. 537, 545 (1987) (emphasis added). In Lawrence v. Texas <\/em>in 2003, the Supreme Court held that \u201c[Homosexuals\u2019] right\u00a0<\/em><\/strong>to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. 539 U.S. 558, 578 (2003). It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.\u201d Id.<\/em><\/p>\n

[34]<\/sup><\/sup><\/a> Witt<\/em>, 444 F. Supp. 2d at 1138.<\/p>\n

[35]<\/sup><\/sup><\/a> Id<\/em>. at 1144.<\/p>\n

[36]<\/sup><\/sup><\/a> Id<\/em>.<\/p>\n

[37]<\/sup><\/sup><\/a> Id<\/em>.<\/p>\n

[38]<\/sup><\/sup><\/a> Id. <\/em>at 1145.<\/p>\n

[39]<\/sup><\/sup><\/a> Id. <\/em>(citation omitted) (quoting Goldman v. Weinberger, 475 U.S. 503, 508 (1986) and Gilligan v. Morgan, 413 U.S. 1, 10 (1973)).<\/p>\n

[40]<\/sup><\/sup><\/a> Id.<\/em><\/p>\n

[41]<\/sup><\/sup><\/a> Witt<\/em>, 527 F.3d at 810.<\/p>\n

[42]<\/sup><\/sup><\/a> Id.<\/em><\/p>\n

[43]<\/sup><\/sup><\/a> See<\/em> DOD Instr. 1332.39 \u00a7 4.3.2 (Aug. 2010). In 2013, as full settlement in a class action suit brought by the ACLU, servicemembers discharged under DADT on or after November 10, 2004 were finally awarded their full severance pay from the military. See <\/em>Settlement Agreement at 5, Collins v. United States<\/em>, Case No. 10-778C (Fed. CL. Jan, 7, 2013); Deal Restores Severance Pay for U.S. Military Gays<\/em>, USA Today, Jan. 7, 2013, archived at <\/em>http:\/\/perma.cc\/T2N3-RM5Q.<\/p>\n

[44]<\/sup><\/sup><\/a> ABA Comm\u2019n on Sexual Orientation and Gender Identity, LGBT Serv. Members and the Armed Forces: One Year After \u2018Don\u2019t Ask, Don\u2019t Tell\u2019 6 (2012), archived at <\/em>http:\/\/perma.cc\/L2DM-5ATR.<\/p>\n

[45]<\/sup><\/sup><\/a> Id.<\/em><\/p>\n

[46]<\/sup><\/sup><\/a> Witt<\/em>, 527 F.3d at 821\u201322 (\u201cTaking direction from what the Supreme Court decided in Lawrence<\/em> and Sell<\/em>, we hold that DADT, after Lawrence<\/em>, must satisfy an intermediate level of scrutiny under substantive due process. In light of the foregoing, we VACATE and REMAND the district court\u2019s judgment with regard to Major Witt\u2019s substantive due process claim and procedural due process claim[.]\u201d)<\/p>\n

[47]<\/sup><\/sup><\/a> Id. <\/em>at 819.<\/p>\n

[48]<\/sup><\/sup><\/a> Id.<\/em><\/p>\n

[49]<\/sup><\/sup><\/a> Id.<\/em><\/p>\n

[50]<\/sup><\/sup><\/a> Id. <\/em>at 821; see also<\/em> Witt v. Dep\u2019t of the Air Force, 548 F.3d 1264, 1267 (9th Cir. 2008) (O\u2019Scannlain, J., dissenting from denial of rehearing en banc<\/em>) (\u201cThe\u00a0Witt<\/em>\u00a0opinion leaves no doubt about how fact-specific this inquiry is to be. The panel ordered the trial court on remand to determine \u2018whether the application of [\u2018Don\u2019t Ask, Don\u2019t Tell\u2019]\u00a0specifically to Major Witt<\/em>\u00a0significantly furthers the government\u2019s interest and whether less intrusive means would achieve substantially the government\u2019s interest.\u2019\u201d\u00a0(citing Witt,<\/em> 527 F.3d at 821); Witt<\/em>, 739 F. Supp. 2d at 1315 (\u201cThe facts deemed worthy of mention by the Court of Appeals are inconsistent with the more deferential analysis advocated by the government. Rather, a complete review of the history of Major Witt\u2019s service, including her conduct as an officer, as well as her sexual orientation, must be evaluated within the context of the squadron in which she served, its mission, its personnel and its culture.\u201d); Defendants\u2019 Supplemental Brief Addressing Substantive Due Process at 6, Log Cabin Republicans v. United States, 716 F. Supp. 2d 884 (C.D. Cal. 2009) (No. CV04-8425) (\u201cThe Ninth Circuit [in Witt<\/em>] made clear\u201d that challenges to the DADT statute must be as-applied and conducted through an \u201cindividualized balancing analysis . . . tied specifically to the circumstances of an individual.\u201d) (quoting Witt<\/em>, 527 F.3d at 821)).<\/p>\n

[51]<\/sup><\/sup><\/a> See <\/em>Press Release, ACLU, supra <\/em>note 21.<\/p>\n

[52]<\/sup><\/sup><\/a> Witt<\/em>, 527 F.3d at 821 (citation omitted).<\/p>\n

[53]<\/sup><\/sup><\/a> See Witt<\/em>, 444 F. Supp. 2d at 1145 (\u201cCourt review of Congressional enactments is especially deferential in the military context. It is difficult to conceive of an area of governmental activity in which\u00a0the courts have less competence.\u201d).<\/p>\n

[54]<\/sup><\/sup><\/a> 539 U.S. 558 (2003).<\/p>\n

[55]<\/sup><\/sup><\/a> Witt<\/em>, 527 F.3d at 814 (quoting Lawrence<\/em>, 539 U.S. at 567) (emphasis added).<\/p>\n

[56]<\/sup><\/sup><\/a> Id.<\/em> (quoting Lawrence<\/em>, 539 U.S. at 567) (internal citation omitted).<\/p>\n

[57]<\/sup><\/sup><\/a> 60 M.J. 198 (C.A.A.F. 2004).<\/p>\n

[58]<\/a> See Witt<\/em>, 527 F.3d at 816.<\/p>\n

[59]<\/sup><\/sup><\/a> Id.<\/em> at 205\u201306 (\u201cThe Supreme Court and this Court have long recognized that\u00a0<\/em><\/strong>men and women in the Armed Forces do not leave constitutional safeguards and judicial protection behind when they enter military service. Our citizens in uniform may not be stripped of basic rights simply because they have doffed their civilian clothes. As a result, this Court has consistently applied the Bill of Rights to members of the Armed Forces, except in cases where the express terms of the Constitution make such application inapposite . . . . Constitutional rights identified by the Supreme Court generally apply to members of the military unless by text or scope they are plainly inapplicable. Therefore, we consider the application of\u00a0Lawrence<\/em>\u00a0to Appellant\u2019s conduct.\u00a0\u00a0 However, we conclude that its application must be addressed in context.\u201d (internal citations omitted)).<\/p>\n

[60]<\/sup><\/sup><\/a> Id<\/em>. at 206.<\/p>\n

[61]<\/sup><\/sup><\/a>\u00a0527 F.3d at 816.<\/p>\n

[62]<\/sup><\/sup><\/a> Id.<\/em> at 819 (emphasis added) (internal citations omitted) (quoting Aptheker v. Sec\u2019y of State, 378 U.S. 500, 508 (1964) (\u201cEven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental liberties when the end can be more narrowly achieved.\u201d))<\/p>\n

[63]<\/sup><\/sup><\/a> Id.<\/em> at 821 (emphasis added).<\/p>\n

[64]<\/sup><\/sup><\/a> Id.<\/em> at 821 n.11.<\/p>\n

[65]<\/sup><\/sup><\/a> Witt<\/em>, 739 F. Supp. 2d at 1314 (denial of rehearing en banc<\/em>).<\/p>\n

[66]<\/sup><\/sup><\/a> Witt<\/em>, 739 F. Supp. 2d at 1315\u201316.<\/p>\n

<\/a><\/p>\n

[68]<\/sup><\/sup><\/a> Id.<\/em> (internal citations omitted).<\/p>\n

[69]<\/sup><\/sup><\/a> Log Cabin<\/em> Substantive Due Process Brief, supra <\/em>note 11, at 6 (quoting Witt<\/em>, 527 F.3d at 820); see also<\/em> Letter from Eric Holder Att\u2019y Gen. to Irving Nathan, House Gen. Counsel (Apr. 24, 2009) (on file with author) (declining to petition for certiorari in Witt).<\/p>\n

[70]<\/sup><\/sup><\/a> See <\/em>id.<\/em> at 5, 7\u20138 (\u201cI. Witt<\/em> Prohibits Facial Substantive Due Process Challenges to DADT\u201d; \u201cII. The Witt <\/em>Analysis Makes Associational Standing Unavailable\u201d; \u201cIII. [Plaintiff\u2019s] Facial Challenge Would Fail In Any Event After Witt<\/em>\u201d).<\/p>\n

[71]<\/sup><\/sup><\/a> Brief for the Federal Respondents in Opposition to Petition for a Writ of Certiorari at 9, Pietrangelo v. Gates, 556 U.S. 1289 (2009) (No. 08-824).<\/p>\n

[72]<\/sup><\/sup><\/a> Review of the DOD Process for Assessing the Requirements to Implement Repeal of Don\u2019t Ask, Don\u2019t Tell: Hearing Before the Subcomm. on Military Personnel of the H. Comm. on Armed Services<\/em>, 111th Cong. 130 (2010) (testimony of Jeh Johnson, DOD Gen. Counsel), archived at <\/em>http:\/\/perma.cc\/4L5Q-QNPT.<\/p>\n

[73]<\/sup><\/sup><\/a> Budget Request from the Dept. of the Air Force, National Defense Authorization Act for Fiscal Year 2011 and Oversight of Previously Authorized Programs: Hearing Before the H. Comm. on Armed Services<\/em>, 111th Cong. 123 (2010) (testimony of Michael Donley, Sec\u2019y. of the Air Force).<\/p>\n

[74]<\/sup><\/sup><\/a> Dept. of Defense Authorization for Appropriations for Fiscal Year 2011: Hearing Before the S. Comm. on Armed Services<\/em>, 111th Cong. 701, Pt. 1 (2010) (testimony of Robert Gates, Sec\u2019y. of Defense), archived at <\/em>http:\/\/perma.cc\/Q3SC-U6BZ.<\/p>\n

[75]<\/sup><\/sup><\/a> Review of the DOD Process for Assessing the Requirements to Implement Repeal of Don\u2019t Ask, Don\u2019t Tell: Hearing Before the Subcomm. on Military Personnel of the H. Comm. on Armed Services<\/em>, 111th Cong. 130 (2010) (testimony of Jeh Johnson, DOD Gen. Counsel), archived at <\/em>http:\/\/perma.cc\/4L5Q-QNPT.<\/p>\n

[76]<\/sup><\/sup><\/a> Id.<\/em><\/p>\n

[77]<\/a> Id.<\/em><\/p>\n

[78]<\/sup><\/sup><\/a> Id.<\/em><\/p>\n

[79]<\/sup><\/sup><\/a> Id.<\/em><\/p>\n

[80]<\/sup><\/sup><\/a> See id.<\/em><\/p>\n

[81]<\/sup><\/sup><\/a> See <\/em>Diane Mazur, Palm Ctr., The Department of Defense\u2019s Obligation to Comply with the Constitutional Ruling in <\/em>Witt v. Department of the Air Force, 6 (2010), archived at <\/em>http:\/\/perma.cc\/W349-326Y<\/a>.<\/p>\n

[82]<\/sup><\/sup><\/a> Id.<\/em><\/p>\n

[83]<\/sup><\/sup><\/a> Id.<\/em> (quoting Witt<\/em>, 527 F.3d at 821).<\/p>\n

[84]<\/sup><\/sup><\/a> Id.<\/em> (quoting Weiss v. United States, 510 U.S. 163, 176 (1994)).<\/p>\n

[85]<\/sup><\/sup><\/a> Senate Committee on the Judiciary Holds a Hearing on the Elena Kagan Nomination<\/em>, 111th Cong. 130 (2010) (testimony of Elena Kagan, Solic. Gen.), available at <\/em>http:\/\/www.washingtonpost.com\/wp-srv\/politics\/documents\/KAGANHEARINGSDAY3.pdf, archived at <\/em>http:\/\/perma.cc\/L7PT-2SLJ.<\/p>\n

[86]<\/sup><\/sup><\/a> Id.<\/em><\/p>\n

[87]<\/sup><\/sup><\/a> Review of the DOD Process for Assessing the Requirements to Implement Repeal of Don\u2019t Ask, Don\u2019t Tell: Hearing Before the Subcomm. on Military Personnel of the H. Comm. on Armed Services<\/em>, 111th Cong. 130 (2010) (testimony of Jeh Johnson, DOD Gen. Counsel), available at <\/em>http:\/\/www.gpo.gov\/fdsys\/pkg\/CHRG-111hhrg57127\/pdf\/CHRG-111hhrg57127.pdf., archived at <\/em>http:\/\/perma.cc\/4L5Q-QNPT.<\/p>\n

[88]<\/sup><\/sup><\/a> See, e.g.<\/em>, UCMJ, Art. 134 (1951) (The provision of the Uniform Code of Military Justice prohibiting conduct \u201cto the prejudice of good order and discipline,\u201d Article 134, requires individualized proof that a servicemember\u2019s conduct actually prejudiced good order and discipline.).<\/p>\n

[89]<\/sup><\/sup><\/a> See <\/em>Diane Mazur, supra<\/em> note 82 at 7, (citing Watkins v. United States Army, 875 F.2d 699, 702 (9th Cir. 1989) (en banc)).<\/p>\n

[90]<\/sup><\/sup><\/a> Id.<\/em><\/p>\n

[91]<\/a> Air Force, Office of Secretary, API 36-208, Administrative Separation of Airmen (2014).<\/p>\n

[92]<\/sup><\/sup><\/a> Id.<\/em><\/p>\n

[93]<\/sup><\/sup><\/a> Id.<\/em><\/p>\n

[94]<\/sup><\/sup><\/a> Plaintiff\u2019s Trial Memorandum at 8, Witt v. United States Dep\u2019t of the Air Force, 739 F. Supp. 2d 1308 (W.D. Wash. 2010) (internal citations omitted).<\/p>\n

[95]<\/a> See Witt<\/em>, 739 F. Supp. 2d at 1314 (denial of rehearing en banc); Fehrenbach v. Dep\u2019t of Air Force, Case No: CIV 10-402-S-EJL (D. Idaho 2010); Almy v. U.S. Dep\u2019t of Defense, Case No: cv 10-5627 (RS) (N.D. Cal. 2013).<\/p>\n

[96]<\/a> Witt<\/em>, 739 F. Supp. 2d at 1314 (denial of rehearing en banc).<\/p>\n

[97]<\/a> Plaintiff\u2019s Motion for Partial Summary Judgment at 8, 16, Almy v. U.S. Dep\u2019t of Defense, Case No: cv 10-5627 (RS) (N.D. Cal. 2013).<\/p>\n

[98]<\/sup><\/sup><\/a> Mr. Garcia\u2019s name has been changed for the purposes of this article. All other facts and details in his case are cited from affidavits submitted on his behalf to the Air Force Board for Correction of Military Records. The author represented Mr. Garcia to challenge the circumstances of his discharge as a pro bono attorney with the Military Law Institute in Orange, California.<\/p>\n

[99]<\/sup><\/sup><\/a> See <\/em>The Williams Institute supra <\/em>note 13.<\/p>\n

[100]<\/a> Review of the DOD Process for Assessing the Requirements to Implement Repeal of Don\u2019t Ask, Don\u2019t Tell: Hearing Before the Subcomm. on Military Personnel of the H. Comm. on Armed Services<\/em>, 111th Cong. 130 (2010) (testimony of Jeh Johnson, DOD Gen. Counsel), available at <\/em>http:\/\/www.gpo.gov\/fdsys\/pkg\/CHRG-111hhrg57127\/pdf\/CHRG-111hhrg57127.pdf, archived at <\/em>http:\/\/perma.cc\/4L5Q-QNPT.<\/p>\n

[101]<\/sup><\/sup><\/a> Clackum v. United States, 148 Ct. Cl. 404, 410 (1960). See also <\/em>Sofranoff v. United States, 165 Ct. Cl. 470, 478 (1964).<\/p>\n

[102]<\/sup><\/sup><\/a> Dilley v. Alexander, 627 F.2d 407, 413 (D.C. Cir. 1980).<\/p>\n

[103]<\/sup><\/sup><\/a> Id.<\/em><\/p>\n

[104]<\/sup><\/sup><\/a> Clackum v. United States, 161 Ct. Cl. 34, 35 (1963) (\u201cWhere a service person serving a fixed term of enlistment is wrongfully discharged, recovery is for the active duty pay and allowances lost up to the time the term of enlistment would have expired even though the active duty call-up might have expired earlier. The allowances include allowances for clothing, quarters, rations, mustering-out pay, travel, and amounts attributable to leave; see also<\/em> Smith v. United States, 155 Ct. Cl. 682, 691 (1961); Murray v. United States, 154 Ct. Cl. 185, 186 (1961) (\u201c[A wrongfully discharged servicemember] is also entitled to recover all of his enlistment bonus including the allegedly unearned portion thereof.\u201d).<\/p>\n

[105]<\/sup><\/sup><\/a> Fehrenbach v. Dep\u2019t of Air Force, Case No: CIV 10-402-S-EJL (D. Idaho 2010).<\/p>\n

[106]<\/sup><\/sup><\/a> Almy v. U.S. Dep\u2019t of Defense, Case No: cv 10-5627 (RS) (N.D. Cal. 2013).<\/p>\n

[107]<\/sup><\/sup><\/a> See <\/em>Breaking Update: U.S. Dept. of Justice, Air Force Reach Agreement with Lt. Col Fehrenbach<\/em>, supra <\/em>note 15, and OutServe-SLDN Announces Settlement for Almy<\/em>, Outserve-SLDN (Mar. 15, 2013), available <\/em>at http:\/\/www.sldn.org\/news\/archives\/outserve-sldn-announces-settlement-for-almy\/<\/a>, archived at<\/em> http:\/\/perma.cc\/7AUM-R3VS.<\/p>\n

[108]<\/a> Plaintiff\u2019s Motion for Partial Summary Judgment at 8, 16, Almy v. U.S. Dep\u2019t of Defense, Case No: cv 10-5627 (RS) (N.D. Cal. 2013).<\/p>\n

[109]<\/sup><\/sup><\/a> Memorandum from Clifford L. Stanley, Under Sec\u2019y of Def., to Sec\u2019ys of the Military Dep\u2019ts, on Correction of Military Records Following Repeal of Section 654 of Title 10, United States Code (Sept. 20, 2011), http:\/\/sldn.3cdn.net\/8b5bfaa11d5854c9e5_k2m6b382s.pdf<\/a>, available at <\/em>http:\/\/perma.cc\/MP8D-B8HX. (directing Service Discharge Review Boards to \u201cnormally grant requests to re-characterize [an applicant\u2019s] discharge to honorable when,\u201d as in this case, \u201cthe following conditions are met: (1) The original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT; and (2) There were no aggravating factors in the record, such as misconduct.\u201d).<\/p>\n","protected":false},"excerpt":{"rendered":"

Ari Freilich[1] Please click here for a PDF version of the article. I. Introduction In its May 2008 ruling in Witt v. Dep\u2019t of the Air Force,[2] the Ninth Circuit Court of Appeals became the first court in the nation to subject Don\u2019t Ask, Don\u2019t Tell (\u201cDADT\u201d) to a standard of \u201cheightened scrutiny\u201d and, more […]<\/p>\n","protected":false},"author":23,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"aside","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_post_was_ever_published":false},"categories":[6,26],"tags":[49,50,23,52,51,53],"class_list":["post-1772","post","type-post","status-publish","format-aside","hentry","category-articles","category-online-journal","tag-dadt","tag-dont-ask-dont-tell","tag-featured","tag-lgbt","tag-military","tag-witt","post_format-post-format-aside"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZQij-sA","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/jlg\/wp-json\/wp\/v2\/posts\/1772","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/jlg\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/jlg\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlg\/wp-json\/wp\/v2\/users\/23"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlg\/wp-json\/wp\/v2\/comments?post=1772"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/jlg\/wp-json\/wp\/v2\/posts\/1772\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/jlg\/wp-json\/wp\/v2\/media?parent=1772"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlg\/wp-json\/wp\/v2\/categories?post=1772"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlg\/wp-json\/wp\/v2\/tags?post=1772"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}