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Pentagon Orders Military Recruiters to Accept Gay Applicants

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Dan Choi, an Iraq War veteran and a West Point graduate who was discharged from the military in July because he announced publicly that he is gay, reacts as he waits to enter the U.S. Armed Forces Recruiting Center in Times Square, hoping to re-enlist on Tuesday, Oct. 19, 2010, in New York. (AP)

The Pentagon has told military recruiters they must accept applications from openly gay people as party of the military's obligation to comply with last week's federal court ruling that deemed its current policy of "don't ask, don't tell" unconstitutional.

The top-level guidance sent out last Friday also tells recruiters to remind applicants "a reversal in the court's decision" to overturn the policy could occur, Pentagon spokeswoman Cynthia Smith said.

That means applicants who reveal their homosexuality will put themselves at risk for future dismissal.

The Justice Department is in the process of appealing the ruling issued by U.S. District Judge Virginia Phillips. Meanwhile, the Justice Department has also requested Phillips put a hold on her ruling pending the outcome of that appeal. Phillips has indicated she will not comply.

Some gay activist groups were planning to send people to enlist at recruiting stations to test the Pentagon's Tuesday announcement.

The Defense Department has said it would comply with Phillips' order and had frozen any discharge cases. But at least one case was reported of a man being turned away from an Army recruiting office in Austin, Texas.

While activists were going to enlist, gay rights groups were continuing to tell service members to avoid revealing that they are gay, fearing they could find themselves in trouble should the law be reinstated.

"What people aren't really getting is that the discretion and caution that gay troops are showing now is exactly the same standard of conduct that they will adhere to when the ban is lifted permanently," said Aaron Belkin, executive director of the Palm Center, a think tank on gays and the military at the University of California Santa Barbara.

The uncertain status of the law has caused much confusion within an institution that has historically discriminated against gays. Before the 1993 law, the military banned gays entirely and declared them incompatible with military service.

Twenty-nine nations, including Israel, Canada, Germany and Sweden, allow openly gay troops, according to the Log Cabin Republicans, a gay rights group and plaintiff in the lawsuit before Phillips.

The Pentagon guidance to recruiters comes after Dan Woods, the group's attorney, sent a letter last week warning the Justice Department that Army recruiters who turned away Omar Lopez in Texas may have caused the government to violate Phillips' injunction.

Woods wrote that the military could be subject to a citation for contempt.

Douglas Smith, spokesman for U.S. Army Recruiting Command based at Fort Knox, Ky., said even before the ruling recruiters did not ask applicants about their sexual orientation. The difference now is that recruiters will process those who say they are gay.

"If they were to self-admit that they are gay and want to enlist, we will process them for enlistment, but will tell them that the legal situation could change," Smith said.

He said the enlistment process takes time and recruiters have been told to inform those who are openly gay that they could be declared ineligible if the law is upheld on appeal.

"U.S. Army Recruiting Command is going to follow the law, whatever the law is," he said.

The message, however, had not reached some recruiting stations.

At one for all branches in Pensacola, Marine Sgt. Timothy Chandler said he had been given no direction. "As far as we are concerned everything is the same, the policy hasn't changed," he said, as others in office nodded.

Chandler said no one had come to the small office questioning the policy or asking about being openly gay and serving.

Recruiters at the Navy office next door referred all media questions to the Pentagon. Air Force recruiters said they were not authorized to talk to the media. Army recruiters referred questions to another office in Mobile, Ala.

Phillips said at a hearing Monday that she was learning toward denying the Obama administration's request to delay her order. That would send the case to the 9th Circuit Court of Appeals in San Francisco.

After Phillips' ruling last week, Lopez -- discharged from the Navy in 2006 after admitting his gay status to his military doctor -- walked into an Army recruiting office in Austin and asked if he could re-enlist.

He said he was up front, even showing the recruiters his Navy discharge papers. But they told him he couldn't re-enlist because they had not gotten word from the Pentagon to allow openly gay recruits.

Smith was unable to confirm the account. She said guidance on gay applicants had been issued to recruiting commands on Oct. 15.

On Tuesday, upon hearing of the changes to recruiting, Lopez said, "Oh my God! I've been waiting for this for four years."

Lopez said he'll try again Friday and will go to a Navy recruiting office in Austin to see if he can enroll in ROTC as an officer. He is currently studying hospitality services at Austin Community College.

"I'm hoping they'll let me in because I was able to switch over from an enlistment to an officer. I'm really hoping they can accept me," he said.

Fox News' Justin Fishel and The Associated Press contributed to this report.