View Full Version : Officer sues over ‘don’t ask, don’t tell’

08-08-06, 12:05 PM
August 14, 2006

Officer sues over ‘don’t ask, don’t tell’
19-year airman fights to halt force-out

By Erik Holmes
Staff writer

Maj. Margaret Witt of the 446th Aeromedical Evacuation Squadron at McChord Air Force Base, Wash., is in the curious position of having once been the poster child of the Air Force’s Nurse Corps but now being told she is no longer welcome to serve.

Witt, a decorated flight nurse and popular leader of her unit, appeared on Nurse Corps recruiting fliers and posters for several years but is now being discharged under the military’s “don’t ask, don’t tell” policy.

Witt filed suit in federal district court in Tacoma, Wash., in April to halt her discharge, and she made her first court appearance June 30.

The defendants in the suit are the Air Force, Defense Secretary Donald Rumsfeld, Air Force Secretary Michael W. Wynne and Col. Mary Walker, commander of the 446th.

The Air Force Reserve Command informed Witt, a reservist, in February that she is being administratively discharged because of homosexual conduct.

The “don’t ask, don’t tell” policy passed by Congress in 1993 prohibits openly gay people from serving in the military and requires commanders to discharge them, but the policy says that commanders should not investigate service members’ sexuality unless there is credible evidence that they are gay.

The Air Force discharged 88 airmen last year under the policy, a Defense Department spokesman said. The Servicemembers Legal Defense Network, a group that advocates for the rights of gays in the military, says more than 11,000 members, from all services, have been discharged since Congress passed the law.

Witt, a 19-year Air Force veteran, is regarded by many as a model officer.

President Bush awarded her the Air Medal in 2003 for her service as a flight medical crew director during operations Enduring Freedom and Southern Watch, and she received the Air Force Commendation Medal in 2003 for saving the life of a civilian Defense Department employee.

She was named officer of the quarter for the 446th in 2003, and her unit commander in 2004 called her “an outstanding ... Air Force representative” and a “recognized leader.”

A little more than two years after receiving such praise, Witt is in court trying to save her career.

Witt’s lawyers argue that the “don’t ask, don’t tell” policy is unconstitutional because it punishes sexual behavior that is protected by the Constitution and that it should not be applied to Witt because before being investigated, she never told anyone in the Air Force she was gay.

A spokesman for the Justice Department, which is representing the defendants, said the defense has filed a motion to dismiss the lawsuit on the grounds that the policy is constitutional. He would not comment further on the case.

A Defense Department spokesman, Army Lt. Col. Jeremy Martin, said, “Our policy in the military implements a federal law that was enacted in 1993 following extensive hearings and debate. The department is simply complying with the law.”

Witt hopes to see the court throw out that law as unconstitutional, one of her lawyers said, but her primary goal is to resume her military career.

“She wants to return to service, qualify for her pension and continue to save lives just like she used to,” said Aaron Caplan of the American Civil Liberties Union of Washington, which is representing Witt.

He said Witt will drop the lawsuit if the Air Force reinstates her.

The investigation

The Air Force began investigating Witt during the summer of 2004 based on a tip claiming she was a homosexual.

There is no information about the source of the tip.

After Witt admitted to Air Force investigators that she had a committed sexual relationship with a woman from 1997 to 2003, Walker suspended her and initiated administrative discharge proceedings in November 2004.

Walker informed Witt then that she “may not participate in any pay or point activity pending resolution of separation action,” according to court documents.

This effectively halted Witt’s career and her progress toward earning retirement benefits. She had served 17 years at that point and had not yet qualified for retirement, Caplan said.

The Air Force Reserve Command would not comment on Witt’s retirement status, and Marine Corps Times could not calculate the amount of her potential retirement benefits with the information available.

When the AFRC told Witt in February 2006 that she was being discharged, it also informed her of her right to a discharge board hearing. Caplan said Witt requested a hearing but has not been granted one.

The AFRC declined to comment, citing privacy concerns.

A main issue Witt raises in the lawsuit and plans to argue before a discharge board is that she never told anyone in the Air Force she is gay and kept her sexual behavior separate from her military life.

“She didn’t tell anyone,” Caplan said. “We would argue that whatever tip or information they were going on wasn’t credible evidence, and they shouldn’t have begun the investigation in the first place.”

The constitutional challenge to the law stems from a 2003 Supreme Court case that said it is unconstitutional for the government to outlaw homosexual activity between consenting adults in private.

Caplan argues that this ruling should protect the private actions of homosexual service members.

“Here we have the Air Force attempting to discharge [Witt] because she was doing something she has the constitutional right to do,” he said.

But the defense claims in court filings that courts have repeatedly upheld the “don’t ask, don’t tell” law, and that the Supreme Court’s 2003 decision does not change the situation.

Even opponents of the law concede that a constitutional challenge will be difficult to win.

“The courts tend to defer to Congress, especially in military [issues], so ... it will be very difficult to challenge it constitutionally,” said attorney David Sheldon, a military law specialist who has represented gay service members in similar cases.

Witt’s lawyers also plan to argue that her discharge is counter to the law’s purpose of protecting unit morale and cohesion.

“She was held in the highest esteem,” Caplan said, “and the thing that is really bad for unit morale was trying to drum her out.”

At least 10 officers and noncommissioned officers from Witt’s unit have filed statements supporting her.

One of those supporters, Tech. Sgt. Stacey Julian, said in a statement to the court, “I have talked to many other people in the 446th AES about the decision ... and in general they have reacted with shock, confusion and amazement. ... In my opinion the commander’s decision ... has seriously hurt unit morale.”

The defense has not presented evidence that Witt’s sexuality hurt unit morale and would not comment on whether it plans to do so.

Caplan said he also will argue that Witt’s retention would be in the best interest of the Air Force because there is a shortage of nurses in the service.

A spokesman for the AFRC said Witt’s unit does not have any nursing vacancies.

A Defense Department spokesman declined to comment on the issue of discharging service members who work in career fields with shortages.

If the case proceeds, Caplan said he expects the trial to begin in mid-2007.

Erik Holmes covers the Air Force.