H 3569 Session 110 (1993-1994)
H 3569 General Bill, By L.O. Graham, Allison, B.O. Baker, H. Brown, Cato,
Cooper, R.S. Corning, Davenport, Fair, T.L. Farr, Gamble, P.B. Harris, Harrison,
Haskins, H.G. Hutson, Kelley, Klauber, Lanford, Littlejohn, C.V. Marchbanks,
Meacham, Quinn, Robinson, Simrill, C.H. Stone, Stuart, Townsend, Trotter,
Vaughn, Walker, J.B. Wilder, Wilkins, S.S. Wofford, D.A. Wright and
Young-Brickell
A Bill 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.
02/25/93 House Introduced and read first time HJ-3
02/25/93 House Referred to Committee on Medical, Military,
Public and Municipal Affairs HJ-3
04/21/93 House Committee report: Majority favorable, minority
unfavorable Medical, Military, Public and
Municipal Affairs HJ-2
01/13/94 House Read second time HJ-289
01/13/94 House Roll call Yeas-092 HJ-296
01/19/94 House Read third time and sent to Senate HJ-52
01/20/94 Senate Introduced and read first time SJ-6
01/20/94 Senate Referred to Committee on General SJ-6
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.
THE COMMITTEE ON MEDICAL,
MILITARY, PUBLIC AND MUNICIPAL
AFFAIRS
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
REPORT:
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.
STATEMENT OF ESTIMATED FISCAL
IMPACT
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
A BILL
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.
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