Current Status Introducing Body:House Bill Number:3569 Primary Sponsor:Graham Committee Number:08 Type of Legislation:GB Subject:Homosexual or bisexual persons in National, State Guard Residing Body:Senate Current Committee:General Committee Computer Document Number:BBM/10257JM.93 Introduced Date:19930225 Last History Body:Senate Last History Date:19940120 Last History Type:Introduced, read first time, referred to Committee Scope of Legislation:Statewide All Sponsors:Graham Klauber Trotter Simrill Cato Marchbanks A. Young Quinn Haskins Harrison Cooper P. Harris Wofford Gamble Townsend H. Brown Littlejohn Kelley Robinson Wright Meacham Wilkins Vaughn Farr Allison Fair Lanford Stuart Baker Davenport Stone Corning J. Wilder Hutson Walker Type of Legislation:General Bill
Bill Body Date Action Description CMN Leg Involved
____ ______ ____________ ______________________________ ___ ____________
3569 Senate 19940120 Introduced, read first time, 08
referred to Committee
3569 House 19940119 Read third time, sent to
Senate
3569 House 19940113 Read second time
3569 House 19930421 Committee Report: majority 27
favorable, minority
unfavorable
3569 House 19930225 Introduced, read first time, 27
referred to Committee
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COMMITTEE REPORT
April 21, 1993
H. 3569
Introduced by REPS. Graham, Klauber, Trotter, Simrill, Cato, Marchbanks, A. Young, Quinn, Haskins, Harrison, Cooper, P. Harris, Wofford, Gamble, Townsend, H. Brown, Littlejohn, Kelley, Robinson, Wright, Meacham, Wilkins, Vaughn, Farr, Allison, Fair, Lanford, Stuart, Baker, Davenport, Stone, Corning, J. Wilder, Hutson and Walker
S. Printed 4/21/93--H.
Read the first time February 25, 1993.
To whom was referred a Bill (H. 3569), to provide for the disqualification of homosexual and bisexual persons from service in the South Carolina National Guard, etc., respectfully
That they have duly and carefully considered the same, and recommend that the same do pass:
Majority favorable. Minority unfavorable.
DAVE C. WALDROP, JR. JOE E. BROWN
For Majority. JOSEPH H. NEAL
BESSIE MOODY-LAWRENCE
FLOYD BREELAND
For Minority.
1. Estimated Cost to State-First Year $-0-
2. Estimated Cost to State-Annually
Thereafter $-0-
House Bill 3569, if enacted, will amend the South Carolina Code of Laws to provide for the disqualification of homosexual and bisexual persons from service in the South Carolina National Guard and the South Carolina State Guard. This legislation defines terminology relating to homosexuals and bisexual acts and provides for the termination (discharge) of such persons from active duty in the National Guard and the State Guard.
No costs to the State General Fund will occur if H. 3569 is enacted into law.
Prepared By: Approved By:
Scott Barnes George N. Dorn, Jr.
State Budget Analyst State Budget Division
TO PROVIDE FOR THE DISQUALIFICATION OF HOMOSEXUAL AND BISEXUAL PERSONS FROM SERVICE IN THE SOUTH CAROLINA NATIONAL GUARD AND THE SOUTH CAROLINA STATE GUARD, PROVIDE FOR THE SEPARATION FROM SERVICE OF SUCH PERSONS, AND PROVIDE FOR RELATED MATTERS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. For the purposes of this act, the following definitions shall apply:
(A) "Homosexual" means a person, regardless of sex, who engages in, desires to engage in, or intends to engage in homosexual acts.
(B) "Bisexual" means a person who engages in, desires to engage in, or intends to engage in homosexual and heterosexual acts.
(C) "Homosexual act or acts" means bodily contact, actively undertaken or passively permitted, between persons of the same sex for sexual satisfaction or gratification.
(D) "South Carolina National Guard" means the "National Guard" as defined in Section 25-1-10(6) of the 1976 Code of Laws and includes the "Air National Guard" and the "Army National Guard" as those terms are defined in Section 25-1-10(7) and (8).
(E) "South Carolina State Guard" means State Guard as defined in Section 25-3-10, et seq. of the 1976 Code of Laws.
(F) "Applicant" means any person seeking (1) to enlist in (including a warrant officer), (2) to be commissioned in, or (3) to transfer from an armed force of the United States or another state or commonwealth to the South Carolina National Guard or the South Carolina State Guard.
SECTION 2. Any applicant who (1) has engaged in, attempted to engage in, or solicited another to engage in a homosexual act, or (2) has stated he or she is a homosexual or bisexual, or (3) has married or attempted to marry a person known to be of the same biological sex (as evidenced by the external anatomy of the persons involved) is disqualified from service in the South Carolina National Guard and the South Carolina State Guard. No contract of enlistment, commission, or transfer in or to the South Carolina National Guard or the South Carolina State Guard must be approved by the respective approval authority if the applicant has been disqualified by the terms of this section.
SECTION 3. Notwithstanding the disqualification imposed in Section 2, an applicant who is disqualified as provided in Section 2 because the applicant has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or has stated he or she is a homosexual or bisexual may obtain a waiver of that disqualification, if the applicant applies for a waiver as provided for herein, and such waiver is approved by the Adjutant General or his designee. An application for waiver must be made under such regulations as established by the Adjutant General, which regulations shall require, at a minimum, representations by the applicant and evidence establishing:
(A) if the disqualification is based on Section 2(1) that:
(1) the prior homosexual conduct was a departure from the applicant's usual and customary behavior; and
(2) such conduct is unlikely to recur because it is shown, for example, that the act occurred because of immaturity, intoxication, coercion, or a desire to avoid military service: and
(3) such conduct was not accomplished by use of force, coercion, or intimidation by the applicant; and
(4) the applicant's services in the South Carolina National Guard or the South Carolina State Guard is in the interest of morale, good order, and discipline; and
(5) the applicant does not desire to engage in or intend to engage in homosexual acts.
(B) If the disqualification is based on Section 2(2), that the applicant is not a homosexual or bisexual.
SECTION 4. The Adjutant General may grant the waiver applied for under Section 3 if the preponderance of the evidence establishes each element of the respective waiver text provided in Section 3, as well as such other requirements as must be determined by the Adjutant General.
SECTION 5. A waiver may not be granted to any applicant who has married or attempted to marry a person known to be of the same biological sex (as evidenced by the external anatomy of the persons involved).
SECTION 6. (A) Under such regulations as shall be promulgated by the Adjutant General, any commissioned or warrant officer, or enlisted person, in the South Carolina National Guard or the South Carolina State Guard shall be separated from the South Carolina National Guard or the South Carolina State Guard, respectively, under the terms of this section if the following findings are made:
(1) the Adjutant General, or his designee, finds that the individual has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts, unless there are further findings that:
(a) the prior homosexual conduct was a departure from the individual's usual and customary behavior; and
(b) such conduct is unlikely to recur because it is shown, for example, that the act occurred because of immaturity, intoxication, coercion, or a desire to avoid military service; and
(c) such conduct was not accomplished by use of force, coercion, or intimidation by the individual; and
(d) the individual's continued service in the South Carolina National Guard or the South Carolina State Guard is in the interest of morale, good order, and discipline; and
(e) the individual does not desire to engage in or intend to engage in homosexual acts;
(2) the individual has stated that he or she is a homosexual or bisexual, unless there is a further finding that the individual is not a homosexual or bisexual; or
(3) the individual has married or attempted to marry a person known to be of the same biological sex (as evidenced by the external anatomy of the persons involved), unless there are further findings that the individual is not homosexual or bisexual, and the marriage or attempted marriage occurred because of immaturity, intoxication, coercion, or a desire to avoid military service.
(B) A discharge under the provisions of this section shall reflect the character of the individual's service, except that a discharge under other than honorable circumstances must be issued if there is a finding that during the current term of service the individual attempted, solicited, or committed a homosexual act:
(1) by using force, coercion, or intimidation; or
(2) with a person under eighteen years of age; or
(3) with a subordinate in circumstances that violate customary military superior-subordinate relationships; or
(4) openly in public view; or
(5) for compensation; or
(6) aboard a military aircraft or vessel.
(C) Nothing in this section precludes either trial by court-martial, in appropriate circumstances, or separation in appropriate circumstances for another reason.
(D) Where there is any creditable evidence to believe that a basis for discharge exists under this section, the unit commander of the individual involved shall initiate investigation according to regulations promulgated by the Adjutant General and, after such investigation, recommend discharge to the appropriate decision authority if warranted under this section.
SECTION 7. (A) At any time the South Carolina National Guard or the South Carolina State Guard is called into federal service by the President of the United States pursuant to the laws of the United States and this State, the Adjutant General shall determined within thirty days of such call to federal service whether the provisions of Sections 1 through 6 of this act are in conflict with federal law. If the Adjutant General determines that those provisions are in conflict with federal law, the Adjutant General shall report such determinations to the General Assembly and shall promulgate such regulations as necessary to suspend enforcement of Sections 1 through 6 of this act during the pendency of federalized service. Upon return of control of the South Carolina National Guard or the South Carolina State Guard to the Governor, Sections 1 through 6 of this act shall again take force and effect without further act by the Adjutant General or the Governor.
(B) (1) If Sections 1 through 6 of this act are suspended as provided in subsection (A), all persons lawfully admitted to the South Carolina National Guard or the South Carolina State Guard during a period of federalized service who would be disqualified from service in the South Carolina National Guard or the South Carolina State Guard by virtue of Section 2 are considered to have received a waiver as set forth in Section 3 and all such persons are exempt from discharge pursuant to Section 6 with respect to any acts committed or statements made prior to the date of their returning to state control.
(2) Nothing in this section shall bar a discharge pursuant to Section 6 with respect to acts committed or statements made subsequent to the date of return to state control.
(3) Nothing in this section shall bar any action, judicial or administrative, brought pursuant to federal law or regulation applicable to the South Carolina National Guard or the South Carolina State Guard during a period of federalized service, irrespective of whether such action is initiated before or after the termination of federalized service.
SECTION 8. This act results from a finding by the General Assembly that homosexuality is incompatible with military service in the South Carolina National guard and the South Carolina State Guard. The presence in the military environment of persons who engage in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct, seriously impairs the accomplishment of the military mission. The presence of these individuals adversely affects the ability of the South Carolina National Guard and the South Carolina State Guard to maintain discipline, good order, and morale; to foster mutual trust and confidence among members of the armed forces; to ensure the integrity of the system of rank and command; to facilitate the assignment and deployment of members of the armed forces who must frequently live and work under close conditions affording minimal privacy; to recruit and retain members of the armed forces; and to maintain the public acceptability of military service.
SECTION 9. This act takes effect upon approval by the Governor.