Business, Legal & Accounting Glossary
The Constitution authorizes Congress to raise, support, and regulate armed services for the national defense. The president is commander in chief of all the branches of the service and has ultimate control over most military matters.
The United States has always been wary of maintaining a strong military force. This care was shown by the Framers of the Constitution when they finally allowed the creation of a standing army but at the same time limited the process by which money could be raised to support the military, by requiring that Congress review the appropriations every two years. In this way, they ensured that each new Congress would address their lingering concerns about domestic tyranny with a fresh perspective. Furthermore, they ensured that the states could maintain their own militias and protect themselves from federal military domination, by recognizing “the right of the people to keep and bear Arms” (U.S. Const. amend. 2).
The various branches of the armed services were created at different times to serve different purposes. The earliest branch was the Army, instituted on July 14, 1775, followed closely by the Navy and the Marine Corps in the same year. All three were established to respond to the needs of the revolutionary forces fighting the British. The Navy and the Marine Corps were disbanded after the Revolutionary War but were reestablished in 1798. The Coast Guard traces its origins to 1790 but was officially created in 1915. Finally, the Air Force had its genesis in the Signal Corps of the Army and was formally established as the Army Air Service in 1920.
Military personnel are governed by a set of laws that is separate from and independent of civil law. The Uniform Code of Military Justice (10 U.S.C.A. § 801 et seq.) outlines the basic laws and procedures governing members of the armed services. Military law is mainly concerned with maintaining order and discipline within the ranks. It is unrelated to martial law, which is the temporary imposition of military rule during a national or regional crisis. Offenses committed by members of the armed services are tried by a court-martial, a special tribunal created specifically to hear a military case and then disbanded once judgment and punishment are pronounced.
The constitutionality of the military legal system has been challenged several times, without success. In 1994, the Supreme Court reaffirmed the constitutionality of the system with a unanimous decision in Weiss v. United States, 510 U.S. 163, 114 S. Ct. 752, 127 L. Ed. 2d 1. At issue were the selection process and tenure of military judges, who are chosen by their branch’s judge advocate general. The plaintiffs claimed that because the judges could be removed at any time by the judge advocate general, they were biased toward the prosecution and could not be impartial. The Court held that sufficient safeguards were in place to protect against improper influence by the judge advocate general and that the defendants’ Fifth Amendment due process rights had not been violated.
Military Ban on Homosexuality
One controversial and divisive issue facing the military is the inclusion of homosexuals. For more than fifty years, the U.S. armed services prohibited gay men and lesbians from serving in the military. In the past, members who disclosed that they were homosexual were subject to immediate discharge. That policy was challenged in several prominent cases during the late 1980s and early 1990s, and the Clinton administration addressed the issue with a new approach that ultimately led to more confusion and controversy.
The federal courts tackled the question of whether the military’s automatic ouster of homosexual personnel is constitutional, in Meinhold v. United States Department of Defense, 34 F.3d 1469 (9th Cir. 1994). The plaintiff, Petty Officer Keith Meinhold, of the Navy, announced on a national television broadcast in May 1992 that he is gay. As a result, discharge proceedings were begun against him. Meinhold was dismissed solely on the basis of his televised statement. He sued the Navy and the Department of Defense, claiming that their policy was unconstitutional. The district court agreed, holding that the Navy’s actions denied gay men and lesbians equal protection under the law. In August 1994, the Court of Appeals for the Ninth Circuit agreed that Meinhold could not be discharged merely for stating that he was gay. However, the appeals court disagreed with the district court’s finding that the military’s policy was unconstitutional and instead found that by discharging Meinhold because of his status as a homosexual and not because of any actions on his part, the Navy was equating status with prohibited conduct. The court conceded that the Navy could legally discharge someone who manifested a “fixed or expressed desire to commit a prohibited act,” such as engaging in homosexual sex, but found that Meinhold had not manifested any such desire and therefore must be reinstated. In November 1994, the Clinton administration announced it was dropping its efforts to bar Meinhold from serving and would not appeal the Ninth Circuit’s ruling.
Another challenge to the military ban on homosexuals came in Steffan v. Aspin, 8 F.3d 57 (D.C. Cir. 1993). The plaintiff, Joseph Steffan, admitted to being a homosexual just six weeks before his expected graduation from the U.S. Naval Academy, at Annapolis, Maryland, in 1987. Steffan was one of the top ten students in his class. He had consistently received outstanding marks for leadership and military performance. In his junior year, he was named a battalion commander in charge of one-sixth of the academy’s forty-five hundred students. After Steffan acknowledged his homosexuality to a classmate and a chaplain, he was brought before a disciplinary board, which recommended that he be discharged. Rather than face dismissal, he resigned. Sometime later, he asked to be reinstated. His request was denied, and he then sued for reinstatement to his commission, claiming that he was forced to resign because of his status as a homosexual, not because of any conduct—in violation of the Constitution’s equal protection guarantee.
The district court granted summary judgment for the government (Steffan v. Cheney, 780 F. Supp. 1 [D.D.C. 1991]). A three-judge panel for the court of appeals reversed, stating that the dismissal policy had no rational basis and that it violated the Equal Protection Clause of the Fifth Amendment. The appeals court ordered the academy to award Steffan his diploma and reinstate him to his commission.
The government petitioned the court for a rehearing on whether the three-judge panel had exceeded its authority. The full court of appeals vacated the decision of the panel and ordered a rehearing before the full court on the constitutionality question. In November 1994, the full court reversed the decision of the three-judge panel and held that Steffan’s dismissal did not violate the Constitution. The court said that the Navy’s ban on homosexuals, like its height or eyesight requirements, did have a rational basis. The court also dismissed Steffan’s argument that the ban punished status rather than conduct. Judge Laurence H. Silberman, writing for the majority, said, “Steffan’s claim that the Government cannot rationally infer that one who states he or she is a homosexual is a practicing homosexual, or is at least likely to engage in homosexual acts, is so strained a constitutional argument as to amount to a basic attack on the policy itself” (Steffan v. Perry, 41 F.3d 677, 693 [D.C. Cir. 1994]). In an impassioned dissent, Judge Patricia M. Wald wrote, “In years to come, we will look back with dismay at these unconstitutional attempts to enforce silence upon individuals of homosexual orientation, in the military and out. Pragmatism should not be allowed to trump principle, or the soul of a nation will wither” (41 F.3d 677, 721).
In January 1995, Steffan announced that for tactical reasons, he would not appeal the decision to the Supreme Court. Steffan’s case was brought under the old policy, and he and his attorneys felt that the best case to have the Supreme Court address was one involving the new policy, which they believed was more vulnerable to constitutional attack. After his discharge from the naval academy, Steffan became a lawyer.
The case of Colonel Margarethe Cammermeyer further clouded official policy on homosexuals in the military (Cammermeyer v. Aspin, 850 F. Supp. 910 [W.D. Wash. 1994]). Cammermeyer was dismissed from the Washington State National Guard in June 1992 when she acknowledged in a security-clearance interview that she is a lesbian. Under the rules in effect at the time, her statement was grounds for dismissal, and Cammermeyer was given an honorable discharge. She was the highest-ranking officer to be discharged solely because of homosexual orientation.
Cammermeyer, a highly respected nurse who was awarded the Bronze Star for her service with the Army in Vietnam, appealed the dismissal. In June 1994, Judge Thomas Zilly, of the Federal District Court for the District of Washington, ordered the military to reinstate Cammermeyer, holding that the policy in effect at the time of her dismissal violated the Equal Protection Clause. Zilly’s decision dismantled the assumptions that form the basis for both the old and the new government policies regarding homosexuals in the military. Zilly held that “there is no rational basis for the Government’s underlying contention that homosexual orientation equals ‘desire or propensity to engage’ in homosexual conduct” (850 F. Supp. at 920). The judge was direct and harsh in his criticism of the government’s policy. He wrote, “The Government has discriminated against Colonel Cammermeyer solely on the basis of her status as a homosexual and has failed to demonstrate a rational basis for doing so” (850 F. Supp. at 926). Noting that military experts “conceded that their justifications for the policy are based on heterosexual members’ fear and dislike of homosexuals,” Zilly went on to say, “[m]ere negative attitudes, or fear, are constitutionally impermissible bases for discriminatory govern- mental policies” (850 F. Supp at 925).
The Justice Department moved to delay Cammermeyer’s reinstatement, but the U.S. Court of Appeals for the Ninth Circuit refused the request. Cammermeyer returned to her position as chief of nursing services for the 164th Mobile Army Surgical Hospital in July 1994.
At the same time that Meinhold, Steffan, and Cammermeyer were being decided, the Clinton administration was formulating and implementing a new policy that it hoped would deal with the issue of homosexuals in the military and put the controversies surrounding the old policy to rest. Before he was elected, Bill Clinton had promised that as president, he would lift the ban on gay men and lesbians in the armed services. However, after taking office, Clinton faced strenuous opposition from the Joint Chiefs of Staff and the heads of the service branches, who argued that summarily eliminating the ban on homosexuals would lead to dissension among the troops and diminished military readiness. In December 1993, the Pentagon announced a compromise plan, which came to be known as the “don’t ask, don’t tell, don’t pursue” policy (Policy Concerning Homosexuality in the Armed Forces, Pub. L. No. 103-160, 1993 H. R. 2401 § 571(a) [amending 10 U.S.C.A. § 654]). Under the new rules, gay men and lesbians could serve in the military as long as they kept their sexual orientation private and did not engage in homosexual activity. The policy stated that sexual orientation is a “personal and private matter” about which recruits and members of the armed forces would no longer be required to answer questions. Criminal investigations and security checks conducted solely to determine sexual orientation would be eliminated. Homosexual orientation alone would not be a bar to service. However, homosexual conduct, which could take the form of “a homosexual act, a statement by the member that demonstrates a propensity or intent to engage in homosexual acts, or a homosexual marriage or attempted marriage” would subject the individual to dismissal. An acknowledgement of homosexual orientation would not be sufficient grounds for expulsion but could be the basis for an investigation into whether the individual engaged in homosexual acts.
Gay rights advocates immediately and vigorously criticized the new policy, saying it infringed on the free speech rights of gay service members and vowing to challenge it in court. In the months following implementation of the new rules, it became clear that, far from easing the plight of homosexual service members, “don’t ask, don’t tell, don’t pursue” was actually making life worse for many of them. Some commanding officers were overly aggressive in implementing the new rules, and many critics felt that the policy further polarized attitudes among service members. Furthermore, the policy shifted the burden of proof to the individual to show that she or he had not engaged in homosexual acts.
The first legal challenge to the “don’t ask, don’t tell, don’t pursue” policy was filed in March 1994 by the American Civil Liberties Union and the Lambda Legal Defense and Education Fund. Six service members who had declared their homosexuality filed suit in the U.S. District Court for the Eastern District of New York, asking for injunctive relief and a declaration that the policy was unconstitutional. The case was heard by Judge Eugene H. Nickerson who issued orders on April 4, 1994, and June 3, 1994, enjoining the Army from pursuing discharge proceedings against the plaintiffs. Nickerson based his decision on the plaintiffs’ showing that they would suffer irreparable harm if the injunction were not granted and that the case involved “sufficiently serious questions” that would warrant its going forward for a decision on its merits.
The U.S. Court of Appeals for the Second Circuit found that Nickerson had used an incorrect standard in determining whether the injunction should be granted. It held that in a case such as this, where an injunction is sought against a “government action taken in the public interest pursuant to a statutory or regulatory scheme,” a more rigorous showing that the case has a “likelihood of success” must be made (Able v. United States, 44 F.3d 128  [per curiam]). The court allowed the injunctions to stand but remanded the case to the district court for a decision on the plaintiffs’ constitutional claims within three months.
On March 30, 1995, Judge Nickerson delivered the decision the plaintiffs had hoped for. He held that the “don’t ask, don’t tell, don’t pursue” policy violated the First and Fifth Amendments, and enjoined the government from enforcing the policy against the plaintiffs (Able, 880 F. Supp. 968 [E.D.N.Y.]). The court found that the First Amendment prohibits a restraint on the right of a serviceperson to declare his or her homosexuality. According to the court, “Plaintiffs have done no more than acknowledge who they are, that is, their status. The speech at issue in this case implicates the First Amendment value of promoting individual dignity and integrity, and thus is protected by the First Amendment from efforts to prohibit it because of its content.” The court further found that to regulate speech content, even in the military context, the government must show a “compelling interest” and prove that it has chosen the “least restrictive means” to further that interest. Nickerson criticized the legal hairsplitting in the policy directives, which purported to differentiate between a homosexual “orientation” and a homosexual “propensity.” Once a member has admitted or acknowledged being a homosexual, he or she has only a “hypothetical” chance of escaping discharge. “Thus, the policy treats a statement of homosexual orientation as proof of the case,” said Nickerson. “Once such a statement is made, the speaker is judged guilty until proven innocent of committing misconduct the government considers so threatening to the military mission that a member may be discharged for it. This seems to the court a rather draconian consequence of merely admitting to an orientation that Congress has determined to be innocuous.”
Turning to the government’s argument that the presence of openly homosexual members would be detrimental to morale and troop cohesion, the court found that sufficient sanctions were available for dealing with “inappropriate behavior by a homosexual, whether in the closet or not.” Nickerson further stated his belief that the policy may actually be detrimental to the military because “secrecy and deception invite suspicion, which in turn erodes trust, the rock on which cohesion is built.” He noted that a 1993 study conducted by the RAND Corporation found that in countries that have nondiscrimination policies, “no serious problems were reported concerning the presence of homosexuals in the force.”
Finally, on the Fifth Amendment equal protection question, the court found that the government had failed to show that the policy, which denied to homosexuals the same free speech rights guaranteed to heterosexuals, was “tailored to serve a substantial governmental interest.” The policy therefore violated the Fifth Amendment as well as the First, and the court enjoined the government from enforcing it.
Sexual Harassment in the Armed Services
The inclusion of women in virtually all aspects of military life has changed the service from a male-dominated enterprise, strictly segregated by gender, into a microcosm of modern society. Although most men and women serve side by side without incident, charges of sexual harassment in the military became increasingly numerous in the 1980s and early 1990s.
Perhaps the most explosive and far-reaching incidence of this problem took place at the Tailhook Association convention in Las Vegas in September 1991. The Tailhook Association—named for the hook on a Navy jet that catches on the cables that stop it as it lands on an aircraft carrier—is a private group of active and retired Navy and Marine Corps pilots. After its 1991 meeting, Navy lieutenant Paula A. Coughlin charged that she and other women who unwittingly stumbled upon the Tailhook hospitality suites at the Las Vegas Hilton were forced to go through a “gauntlet” of drunken Navy and Marine officers who assaulted them, tore at their clothing, and grabbed at their bodies as they were propelled down the hallway. Coughlin’s allegations launched an investigation that revealed drunken, lewd, and out-of-control behavior by the officers. In the ensuing months, the Navy severed its ties to the Tailhook Association and submitted the names of more than sixty officers for possible disciplinary action. Nevertheless, a conspiracy of silence among the aviators hampered the investigation. In September 1992, the Pentagon’s inspector general issued a report criticizing the Navy’s inquiry into the incident and suggesting that top Navy officials deliberately undermined the investigation to avoid negative publicity. The commander of the Naval Investigative Service and the Navy’s judge advocate general were relieved of their commands. The following April, the inspector general accused 140 aviators of indecent exposure, assault, and lying under oath in the incident. However, no one was ever court-martialed as a result of the charges, and those who were disciplined received only small fines or reprimands.
The Tailhook scandal set off a tidal wave within the upper echelons of the Navy. Navy Secretary H. Lawrence Garrett III resigned in June 1992, accepting full responsibility for the failure of leadership that allowed the incident to occur. In October 1993, his replacement, John H. Dalton, asked for the removal of Admiral Frank B. Kelso II, chief of naval operations, who was present at the convention but denied any knowledge of the debauchery. Dalton’s request was overruled by Secretary of Defense Les Aspin. In February 1994, a military judge cited Kelso for using “unlawful command influence” to “manipulate the initial investigative process” and the Navy’s disciplinary procedures “to shield his personal involvement” in Tailhook. Kelso, who was to retire on June 30, 1994, angrily denied any wrongdoing and declared that he would not resign early. In the end, however, he was persuaded to step down two months ahead of schedule in exchange for a tribute from Defense Secretary William J. Perry that would clear his name. After a bitter debate, the U.S. Senate voted 54-43 to allow Kelso, the Navy’s top admiral and a thirty-eight-year veteran, to retire at his full four-star rank and with a full pension. The women in the Senate, along with many of their male colleagues, vehemently opposed the arrangement, but they were ultimately overruled.
Coughlin resigned from the Navy in February 1994, stating that the assault and “the covert attacks on me that followed have stripped me of my ability to serve.” Coughlin was successful in a civil suit against the Tailhook Association, with whom she settled for an undisclosed amount. She also won a civil suit against the Hilton Hotels Corporation, parent company of the Las Vegas Hilton, which she accused of lax security; in October 1994, a jury awarded her $1.7 million in compensatory damages and an additional $5 million in punitive damages. Still suffering depression and post-traumatic stress from the incident, Coughlin expressed satisfaction with the award but uncertainty about her future, saying, “I’m hoping to slip into obscurity. I want to paint my house. I just want to go home.”
Anxious to restore the Navy’s tarnished image after the sordid series of events, top officials vowed to handle sexual harassment charges swiftly and sensitively. The Navy’s new “zero-tolerance” policy on sexual harassment requires automatic dismissal for aggravated sexual harassment or repeat offenses. Under the policy, about ninety officers and sailors had been dismissed by the end of 1994.
In spite of the publicity generated by Tailhook and other scandals, and the efforts of the military to clamp down on sexual harassment, charges continue to come to light. In one 1994 case that tested the resolve of Admiral Jeremy M. Boorda, Admiral Kelso’s successor as chief of naval operations, two officers were reprimanded for failing to act properly on complaints by Lieutenant Darlene Simmons. Simmons charged that her commanding officer, Lieutenant Commander Arthur Catullo, had offered to advance her career in exchange for sexual favors. Catullo was censured. Simmons, who had an impeccable record before she brought the charges but received an “adverse” evaluation afterward, received an apology from Navy Secretary Dalton. Dalton also cleared her record and offered to extend her active-duty Navy service by two years.
Another egregious incident, again involving the Navy, occurred in 1994 when four male instructors were court-martialed and six others punished for sexually harassing sixteen women students at the Naval Training Center in San Diego. The women, who were learning to operate the Navy’s computer and telephone networks, claimed that the male instructors made unwanted verbal and physical advances. After a seven-month investigation, the Navy found all but one of the instructors guilty of the charges and imposed various sanctions, from a criminal conviction and $1,000 fine, to a loss in pay, counseling, and punitive letters placed in their files.
Sexual harassment was also found among the ranks at the U.S. Military Academy, at West Point, New York. In October 1994, female cadets complained that they had been groped at a pep rally by members of the West Point football team as the players ran past them in a regimental “spirit run.” Lieutenant General Howard D. Graves, superintendent of West Point, launched an immediate investigation that resulted in three players being suspended from the team for the rest of the season, restricted to academy grounds for ninety days, and given eighty hours of marching discipline. Representative Patricia Schroeder (D-Colo.), a member of the House Armed Services Committee, criticized the punishment as too lenient, saying, “[I]t looks like [the incident] was treated as a prank and not as a serious violation of the code of conduct.”
Base Closures and Troop Reductions
With the breakup of the Soviet Union and the end of the cold war, the U.S. government began the politically charged task of reducing military budgets and closing or shrinking unnecessary military installations. The Defense Base Closure and Realignment Act (10 U.S.C.A. § 2687), passed by Congress in 1990, set off a firestorm of controversy over which bases should be closed and whether the country’s military readiness was being irrevocably compromised. The act created a presidential commission to decide which bases to close based on Pentagon recommendations. The commission’s decisions are sent to the president, who accepts or rejects them in their entirety. If accepted, the recommendations are sent to Congress, which can only block the closings if both houses pass a resolution of disapproval within forty-five days. Commissions meeting in 1988, 1991, and 1993 decided to close a total of seventy major installations.
The base closures came under immediate fire as senators and representatives tried to prevent bases in their home states or districts from being shut down. One group of elected officials, including the four senators from Pennsylvania and New Jersey, brought suit in federal court to challenge the procedures under the Defense Base Closure and Realignment Act and to block the closing of the Philadelphia Naval Shipyard, one of the region’s biggest employers. The case never went to trial. Instead, the Supreme Court agreed to hear the Clinton administration’s appeal on the question of whether the suit could be brought at all. The Court held that the government’s choice of which bases to close under the act could not be challenged in federal court (Dalton v. Specter, 511 U.S. 462, 114 S. Ct. 1719, 128 L. Ed. 2d 497 ).
At about the same time as the Dalton decision was announced, the Defense Department, concerned about the effect of base closings on surrounding communities, began planning to postpone the final round of shutdowns scheduled to follow the commission’s 1995 meeting. A senior Pentagon official defended the delays, saying, “As the defense budget goes down and we close bases, the issue now is the pace of closures so people and communities can adjust.” Some critics claimed that the delays were a political move designed to take pressure off the president and Congress until after the 1996 election.
The issue of cost and the shrinking military budget loomed large in the debate. The purpose of closing the bases is to eliminate unnecessary costs, but the process of preparing a base for nonmilitary use is itself expensive. Military bases are exempt from federal environmental regulations, but when they are converted to private use, all the stockpiled weaponry and toxic waste must be disposed of in order to avoid liability. The government has set aside $3 billion a year to cover environmental cleanup plus construction and repair of buildings and roads. Still, the projected savings by the end of the 1990s is $4.6 billion a year.
The Joint Chiefs of Staff were adamant that the base closings continue apace. “We really need this,” said Admiral Boorda. “There’s not enough money to maintain infrastructure we no longer need.” But the base shutdowns have exacted a heavy human toll. Communities surrounding the closed bases suffered dire economic consequences. In 1993, for example, the states where base closings were concentrated— Florida, Virginia, California, and South Carolina—lost a total of over fifty thousand civilian jobs. In addition, many industries that depended on military contracts cut their workforces in response to reduced orders. For example, in September 1994, Northrop Grumman Corporation, which built B-2 and FA-18 fighter jets, announced it would cut its staff by 18 percent by the end of 1995. McDonnell Douglas Corporation shaved its workforce from 132,900 to 80,000 between 1990 and 1994. The layoffs left many educated, formerly well paid professionals without work in a stubbornly sluggish economy. Many were forced to take temporary or part-time jobs at salaries far below what they had previously been paid.
Shrinking military budgets and closing bases inevitably led to questions about the services’ combat readiness. Conservative members of Congress, traditional supporters of military spending, disputed the Pentagon’s assurances that equipment and troop levels remained at the optimal “two-war” level, that is, at a level where the country could fight two regional wars nearly simultaneously. Liberals, on the other hand, argued that the military exaggerated its needs. Sweeping Republican victories in both the House and the Senate in 1994 seemed to embolden the branches of the service in their long-standing rivalry for funds. Critics claimed that the Army created an unduly bleak picture of its combat readiness. Admiral Boorda, who had previously supported spending reductions, changed his position and began lobbying for increases in the Navy’s fleet. For his part, President Clinton responded to criticisms that the military was underfunded with a request for a $25 billion increase in the Pentagon’s budget between 1995 and 2001. Not surprisingly, the move was criticized both by liberals who felt it was an unnecessary political maneuver and by conservatives who felt that it hardly went far enough.
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This glossary post was last updated: 18th March, 2020 | 0 Views.