John Nicholson enlisted in the United States Army in May 2001. At the time he enlisted, he was fluent in Spanish and “fairly proficient” in Italian and Portuguese. He underwent testing in the military for foreign language aptitude and qualified for the most difficult level of language training, Category 4. While Nicholson served, and especially while he was in basic training at Fort Benning, Georgia, he sometimes heard other soldiers make sexist or homophobic slurs but was afraid to report these violations of military conduct lest suspicion fall on him or he be retaliated against in a manner that would lead to his discharge under the Act. Nicholson testified that the Don’t Ask, Don’t Tell Act prevented him from being open and candid with others in his unit; it kept him under a “cloud of fear,” caused him to alter who he was, and made him lie about who he was.
After completing his basic training, Nicholson was assigned to Fort Huachuca, Arizona, to train as a human intelligence collector. While completing his intelligence training at Fort Huachuca, Nicholson requested and received a reassignment to counterintelligence, but remained at Fort Huachuca to complete the requisite counterintelligence training. Nicholson was waiting to start the next cycle of the counterintelligence course when another servicemember started spreading a rumor that Nicholson was gay.
The rumor originated because, while off duty one day in January 2002, Nicholson was writing a letter to a man with whom he had a relationship before joining the Army; Nicholson was writing the letter in Portuguese to prevent other servicemembers from reading it, because it contained references that could reveal Nicholson’s sexual orientation. Despite Nicholson’s precautions, another servicemember caught sight of the letter while chatting with Nicholson. After the two had been talking for a few minutes, Nicholson realized she was one of the few persons he knew in the Army who also could also read Portuguese; he gathered up the pages of his letter after he noticed she appeared to be interested in it and reading it.
After this incident, members of Nicholson’s unit approached him and told him to “be more careful” with regard to disclosure of his sexual orientation. Nicholson sought his platoon sergeant’s assistance to stop the spread of the rumor, but instead the sergeant informed the chain of command. Nicholson’s company commander summoned Nicholson to his office and informed Nicholson that he was initiating discharge proceedings. Upon leaving the meeting, the platoon sergeant, who also had been present at the meeting, ordered Nicholson not to disclose why he was being discharged from the Army.
Nicholson testified that after the meeting with his company commander, he was separated from his platoon and placed in a wing of the barracks containing other servicemembers who were being discharged for reasons such as drug use and failing to disclose criminal convictions before enlistment. Two months later, Nicholson was honorably discharged under the Don’t Ask, Don’t Tell Act. Nicholson testified he “absolutely” would return to the Army if the Don’t Ask, Don’t Tell Act were invalidated.
As noted above with respect to his testimony on the standing issue, the Court observed Nicholson to be credible and forthright.
The trial record is not clear on Nicholson’s exact date of honorable discharge.