Dan Choi Can't Be Reinstated to the Army Because He Was Never Kicked Out (But His Return to Drill Is Still Kind of a Big Deal)

by Adam Weinstei

Earlier today, the blogosphere was all aflutter over a rumor that the military might be dismantling its "don't ask, don't tell" (DADT) policy from the inside. The fuel for this fire was provided by Lt. Dan Choi, a New York National Guardsman, West Point grad, Arabic linguist, Iraq vet, and openly gay man who has spent the past year lobbying publicly for an end to the policy barring gays and lesbians from service.

Choi told a reporter Tuesday morning that he'd returned to drill last weekend with his National Guard unit, the First Battalion, 69th Infantry, as it prepares for an impending deployment. Which is kind of a big deal – just maybe not as big as the media made it out to be. "Outspoken gay activist called back to active duty," USA Today breathlessly announced, ignoring the fact that active duty and National Guard drills aren't at all the same thing. Another normally level-headed military-affairs reporter (who made the same "active duty" error) wrote that Choi's recall proved "that even ahead of a full repeal of the so-called gay ban … relaxed enforcement of the policy is already in place."

The facts, though, are a little more complex. Choi never lost his job in the first place─not when he came out on The Rachel Maddow Show last February, and not in the year since─so he couldn't be restored to duty. That's because getting discharged under DADT is a byzantine process that can take many months to weave its way through a unit commander, an administrative board, and the Pentagon. Choi's public admissions got the ball rolling─he was sent an Army Department letter saying he'd be dismissed "for moral or professional dereliction," and the eventual outcome under current law will be a discharge─but those consequences have yet to play out. In the meantime, Choi is still considered fit for drill duty with his National Guard unit, but had taken some time off to campaign around the repeal of DADT.

In an e-mail to NEWSWEEK in which he sounded taken aback by the heat and light surrounding his weekend-warrior training, Choi said he had voluntarily returned to work this month at the request of his commander. "I was never fully discharged and have been substituting drills because of my schedule of lobbying and pushing for repeal," he wrote. (Drilling reservists and National Guard personnel are customarily given a slight amount of leeway in scheduling drills or substituting other official duties in their place, like funereal honor guards or law-enforcement duties.) "I attended National Guard duty this past weekend because we needed to train on critical infantry skills for a possible upcoming deployment."

The New York National Guard's spokesman, Lt. Col. Richard Goldenburg, confirmed that Choi has always remained on the rolls of his unit. "His violation of the 'Don't Ask, Don't Tell' policy is being run through the channels of the Department of the Army, which has not yet made a final determination on the revocation of his commission," Goldenburg said. Until the Army's chiefs decide Choi's fate, Goldenburg said the state militia─which remains under the command of New York Gov. David Paterson unless Washington requests its soldiers for national service─will continue to let Choi serve. "The New York National Guard doesn't have an issue with this," Goldenburg said of Choi's serving status. Sometimes a soldier, it turns out, is just a soldier.

But while Choi's case may not be the tipping point opponents of DADT were hoping for, it does raise some provocative thoughts about the policy and its future. If Choi's unit ultimately does deploy to Iraq or Afghanistan, will he go with them? He said his commander had invited him to last weekend's training because of its value in the unit's wartime preparations; that suggests he's wanted for overseas work. But it will be much harder for the Army to discharge him when he's 7,000 miles and a world away from the Pentagon.

That raises an even more important point. If the Army really wants Choi out of the service, it seems they'd discharge him sooner rather than later, when an overseas deployment could muck up the works for 10 to 16 months. Yet his fate, Goldenburg says, is still "pending." Is it possible that the Army brass is growing more reluctant to discharge gays and lesbians because of the rising momentum for a change in DADT? The military simply might be reasoning that in a few months, Choi and others like him will enjoy the full privileges of service, and it's worth hanging onto them in the meantime. Not long ago, the Army was offering six-figure bonuses to soldiers with Choi's language skills; what commander wouldn't want to keep an asset like that?

For his part, Choi says he's happy to be reunited with his brothers and sisters in arms. "I have returned to work and there are no instances of decreased good order or discipline; and I sleep in an open bay with little privacy," he said. "No issues."

All in all, he said, it was "good to be back with my unit"─although, he added, "I can still be fired at any moment for DADT."

Legal experts say that's the way it's going to be for the foreseeable future. Opponents of the current policy shouldn't fool themselves into believing that a single test case like Choi's will tip the balance, said Eugene Fidell, an attorney who teaches military law at Yale. "This is not a problem that the Army took on themselves, it's a problem that's been perpetuated by Congress," he said. "The only way it's going to change is with another act of Congress."

And that, he added, "is not going to happen in a week."

Weinstein, an Iraq veteran, is a freelance journalist.