Motion on lesbian major’s lawsuit denied

[CommunityEditor]

SPOKANE, Wash. — Rebuffing the Air Force, a federal appeals court has kept alive a challenge brought by a former military nurse to the armed forces’ “don’t ask, don’t tell” policy on gays.

Thursday’s action by the 9th U.S. Circuit Court of Appeals keeps alive a challenge filed by Margaret Witt, a former Air Force nurse who attained the rank of major.

Witt and her partner, a civilian, lived together in Spokane from July 1997 through August 2003. A year after the couple broke up, the Air Force launched an investigation into allegations that Witt was a lesbian.

Witt was suspended from the Air Force after a military board found she had practiced and declared her homosexuality. She was honorably discharged in October 2007.

The U.S. District Court for Western Washington tossed out a 2006 lawsuit challenging her suspension as a violation of her rights under the Constitution’s “equal protection” clause. She appealed to the 9th Circuit.

In May, a three-judge panel of the appeals court denied Witt’s equal protection claim. But the panel sent the case back to the district court to determine whether the application of “don’t ask, don’t tell” to her case furthered the government interest in “high standards of morale, good order and discipline, and unit cohesion” in the armed forces.

The appeals court noted that the U.S. Supreme Court in 2003 struck down a Texas criminal statute penalizing homosexual conduct, and said Witt’s case should be evaluated in light of that ruling.

In their appeal, the Air Force and Defense Secretary Robert Gates asked the 9th Circuit to hear the issue with all the judges present. In a 4-3 decision, the court said no.

That means the case will go forward, said attorney Sarah Dunne of the American Civil Liberties Union of Washington, which represents Witt.

Her case will either return to the District Court in Seattle or the government will appeal directly to the U.S. Supreme Court, Dunne said. At issue: whether Witt’s homosexuality put her military unit at risk.

“We are looking forward to pursuing her case. We’ll put on evidence as to whether the morale of her unit would be affected,” Dunne said.

“Don’t ask, don’t tell” prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or engage in homosexual activity.

Witt, a flight nurse who was based at McChord Air Force Base near Tacoma, was suspended without pay after the Air Force received a tip that she had been in a long-term relationship with a civilian woman. Witt was honorably discharged after having put in 18 years — two short of what she needed to receive retirement benefits.


Article: http://www.airforcetimes.com/news/20...nmajor_120408/

[ringjamesa]

Drake, after being in for 9 years, I refuse to believe you can't read. Most of the people in the unit knew she was gay and even if they didn't they do now and guess what? THEY DON'T CARE!! Her discharge can't and won't be downgraded to a dishonorable-if her lawsuit fails she can't very well be courts martialed now can she? If it succeeds, she will be re-instated. You can't have it both ways. Either her lawsuit fails and she keeps her Honorable OR her lawsuit succeeds and she would then be subject to the UCMJ-albeit one without DADT as an excuse to discharge her.

[Michele]

Once you have "outed" yourself in the Military, what type of discharge is the "norm"? Is an honourable discharge normal under these circumstances?

[Measure Man]

Originally Posted by Michele

Once you have "outed" yourself in the Military, what type of discharge is the "norm"? Is an honourable discharge normal under these circumstances?

She didn't "out" herself...

Normally...if someone "outs" themselves they would get an honorable discharge...but there are no guarantees.

If they are "outed" by someone else, or there is some evidence of homosexual conduct...then they normally get something less than honorable...again, no guarantees.

A lot of discretion rests on the commander...as as you can see, if someone like Drake was the commander, you may get screwed.

[ringjamesa]

Originally Posted by Measure Man

She didn't "out" herself...

Normally...if someone "outs" themselves they would get an honorable discharge...but there are no guarantees.

If they are "outed" by someone else, or there is some evidence of homosexual conduct...then they normally get something less than honorable...again, no guarantees.

A lot of discretion rests on the commander...as as you can see, if someone like Drake was the commander, you may get screwed.

Actually there are. Unless there is some other reason that would result in a different characterization irregardles of the DADT violation-less than the minimum time in service=Uncharacterized, crimminal activity, etc... The actually took a lot of the discretion away from the Commander-probably because of people like Drake...
And Drake, if that is your opinion, why are you rooting for her lawsuit to be tossed? If you want her to win so she can come back in so they can courts martial her and throw her out...like I said, you can't have it both ways-you indirectly mentioned courts martial. In order to get a dishonorable discharge, you have to be courts martialed.

[Michele]

OK thanks guys that seems to be fair considering the policy of “don’t ask don’t tell”. I mean if they have this policy then its a bit rude to give you a dishonourable discharge in my view. We are not talking about a “crime” but policy and with this policy you do not have a “duty to disclose” so one can hardly be penalized for it IMO.

OIFCOMBATVETNYCI am an Aussie but please don’t hold that against me lol.
I do try to change my spelling to suit the US but sometimes I do it unconsciously.

[Drake_vampiel_d]

Originally Posted by Michele

Once you have "outed" yourself in the Military, what type of discharge is the "norm"? Is an honourable discharge normal under these circumstances?

It's a general discharge so it's not the discharge it should be (dishonorable)

[Drake_vampiel_d]

Originally Posted by OIFCOMBATVETNYC

The only way you can get a dishonorable discharge is by being convicted under a General Court Martial (felony crimes). So it wouldnt happen, homosexuality is not a felony lol. Remember the 5 types of discharges (Honorable, General Under Honorable, Other than Honorable, Bad Conduct, Dishonorable) and the different types of court-martials - Summary, Special and General. Her separation was administrative (military board) so only the first three will come into play.

Everyone who is in the military gets a class on this (Well I did) and here is a link that affirms that. I am AD Army but this is Navy info but the same across the board.
http://www.tpub.com/content/advancem.../14325_487.htm

It's not a felony but it is disobeying a policy which is the equivilent of disobeying a lawful order which is punishable by a dishonorable discharge.

((2) Willfully disobeying a lawful order of superior
commissioned officer. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.)


I know plenty about military law I have a copy of the MCM if you like and I know plenty about the MCM so trust me when I say over all this would stick since policies are enacted by teh senior most persons so they were superior commisioned officers to her and she willingly disobeyed the policy enacted by them, so she does qualify for this discharge.

[Drake_vampiel_d]

Originally Posted by Michele

OK thanks guys that seems to be fair considering the policy of “don’t ask don’t tell”. I mean if they have this policy then its a bit rude to give you a dishonourable discharge in my view. We are not talking about a “crime” but policy and with this policy you do not have a “duty to disclose” so one can hardly be penalized for it IMO.

OIFCOMBATVETNYCI am an Aussie but please don’t hold that against me lol.
I do try to change my spelling to suit the US but sometimes I do it unconsciously.

why is it unfair to dishonorably discharge someone for violating a policy that is well known amongst everyone. Violating a policy in the Military is a crime. the fact is that they aren't obligatied to disclose thier lifestyle but they choose to disclose thier lifestyle.

[Measure Man]

Originally Posted by Drake_vampiel_d

the fact is that they aren't obligatied to disclose thier lifestyle but they choose to disclose thier lifestyle.

...but she didn't tell.