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Falcon concluded that same message by writing, "You have some serious personal issues with being gay to deal with still and I do not have the energy to be the one to go through them with you. Not as a boyfriend, anyway. I just don't. I've done it before and it's too draining. I am available as a friend to help you and give my opinion and advice, but that's all I am capable of right now."
It was not what Jammer wanted to hear. As Falcon tells it now, over the next few weeks his "confused" friend became "obsessed"--flooding his home computer with disjointed e-mails threatening to out him to his military superiors, phoning and hanging up at all hours, even cruising past Falcon's Roseville rambler late at night with his headlights off, presumably to keep tabs on who came and went from the house.
On August 28, 1997, Jammer followed through on his threats, addressing an anonymous e-mail message to a U.S. Air Force major. "I am an Army national guard officer who recently met a medical officer from the Air Force doing a family medicine practice," he wrote. "One thing led to another and we became friends. The thing is he is gay, and he wants to leave the Air Force before he starts serving his medical obligation at the end of the next year. He told me all the ways he can get around serving and getting out and not even pay the money back."
That initial e-mail runs two single-spaced pages in print. "If you trust me or tell me who to talk to I will gladly turn myself in for questioning," it continues. "I have a full time job, career, school, godsons, family. I am worried, but again I am more afraid now he's going to do something to hurt me, or others. If you are interested I will reveal his name, address, phone, and other pertinent facts. Thanks, I am so scared I do not know where to turn. A friend."
Falcon says that Jammer called him after hitting the "send" button. "I outed you," he recalls his former friend saying. "Be prepared. You better call your lawyers."
Over the next three days, Falcon paced the floor, ate little, and slept hardly at all. He was pretty sure Jammer wasn't bluffing. Based on tales he'd heard from fellow gay officers, he believed the military would launch an investigation. He called his residency's program director for advice, and also contacted Servicemembers Legal Defense Network (SLDN), a nonprofit advocacy organization formed after the passage of "Don't Ask, Don't Tell." He even spoke with a military defense counsel at an air base in Grand Forks, North Dakota. But because he was not engaged in active duty, they refused to help.
Having gathered as much information as he could, Falcon decided to make a preemptive strike: "I decided that the most forthright thing was to disclose to the air force and to send them a letter stating, 'This is who I am, this is a part of who I am, but I wish to continue my military career.'"
As it turned out, Falcon's instincts about both Jammer and the military's probable response were right on target. Even as he was drafting his letter, the officer in charge of making physician assignments for the air force was responding to Jammer's e-mail. "I share your concerns that any physician who is evasive, secretive, manipulative and disrespectful of authority may not be the type of officer we're looking for," the officer wrote. "I am interested in what you had to say but it is difficult to pursue your leads without knowing who you are talking about."
That response, attorney Kyle White contends, constitutes a clear violation of the military's policy not to "ask."
Jammer sent back another, longer note in which he identified himself, named Falcon, made assurances that he wasn't a "flake," and chalked up his own sexual self-questioning to an identity crisis. Based on this second e-mail, according to the so-called Report of Inquiry that was submitted into evidence at Falcon's hearing, the air force "began processing the matter as a potential discharge case almost immediately."
In his report, Capt. Andrew Kirkpatrick states that he received Falcon's letter before a formal investigation was under way. And according to military protocol, service members who voluntarily disclose their homosexuality--who essentially out themselves--must be relieved of their duties.
According to C. Dixon Osburn, co-director and co-founder of SLDN, in discharge hearings Kirkpatrick's line of reasoning usually wins. "When it's all said and done, the military investigators don't hold their people accountable," says Osburn, who has worked with hundreds of officers in similar dilemmas. "No one has been disciplined for asking. There's been 100 percent tolerance for pursuance. But there's been zero-percent tolerance for service members who've been outed, no matter how that information comes to light."
In 1996 a Twin Cities attorney with the firm Robins, Kaplan, Miller and Ciresi and a retired lieutenant colonel in the Air Force Reserves challenged "Don't Ask, Don't Tell" on constitutional grounds. Tom Kayser's client, Rich Richenberg, was a captain at Offutt Air Force Base near Omaha. Soon after the policy went into effect, he informed his commander that he was gay, but swore that he had not and would not engage in homosexual activity while serving his tour of duty. In December 1995 Richenberg was given an honorable discharge. Even if he had not been sexually involved with other men, the discharge board concluded, he had not kept his sexuality private as required by "Don't Ask, Don't Tell."