Righting Past Wrongs
Thousands of LGBTQ veterans are seeking to have their discharges upgraded.
There has been an ongoing discussion here, going back to the early days of the site, about applying today’s morality in judging the behavior of those who lived in different times. Almost always, it’s about people whose actions and beliefs were consistent with the society of their day but are bigoted by today’s standards. But what about the opposite: those who transgressed the norms of their society in a way that most wouldn’t bat an eye at now?
A case in point:
CBS News (“LGBTQ+ veterans file civil rights suit against Pentagon over discriminatory discharges“):
A group of LGBTQ+ veterans who were kicked out of the military because of their sexual orientation filed a federal civil rights suit on Tuesday over the Defense Department’s failure to grant them honorable discharges or remove biased language specifying their sexuality from their service records following the repeal of “don’t ask, don’t tell” in 2010.
The class action lawsuit, which was filed in the U.S. District Court for the Northern District of California on behalf of five veterans, claims the Pentagon’s failure to correct this “ongoing discrimination” represents a violation of constitutional rights.
“Requiring LGBTQ+ veterans to first bear the stigma and discriminatory effects of carrying indicators of sexual orientation on their [discharge papers] and then navigate a broken record correction process to seek resolution violates their constitutional rights to equal protection, informational privacy, property, and due process protected by the Fourteenth and Fifth Amendments to the U.S. Constitution,” the suit says.
It’s been more than a decade since the military lifted its longstanding ban on gay and lesbian troops. But thousands of those discharged under past discriminatory policies like “don’t ask, don’t tell” are still carrying less than honorable discharges today, depriving them of the full spectrum of benefits including VA loan programs, college tuition assistance, health care and some jobs.
Over the past six months, a CBS News investigation documented the Pentagon’s long-running failure to restore honor to the service records of thousands of veterans who were deprived of veterans benefits after their military careers were cut short. The reports documented the way these veterans’ often traumatic separation from the military shaped the course of their lives.
A Pentagon spokesperson told CBS News the department does not comment on pending litigation, but in an earlier statement said that the military has an existing process consisting of a short two-page application for veterans seeking a change to their discharge. The department said “legal representation is not required to apply for a discharge review” and that the discharge review boards “continue to strive to finalize 90% of all cases within 10 months as required by statute.”
But the lawsuit, prepared by the Impact Fund, Legal Aid at Work and King and Spalding LLP, lays out what plaintiffs allege is a “constitutionally inadequate” response.
“The process places the burden on individual veterans to spend months or years obtaining old personnel records before they can even file the applications that will then take months or years to be processed, on top of the years since their discriminatory discharges,” the complaint alleges. “The application process is opaque; many veterans must hire lawyers to assist them. Individual veterans are forced to relive the trauma of their discharge, carrying the burden of proving discrimination to the very institution that discriminated against them.”
The lawsuit is not seeking monetary damages. Instead, it asks the Defense Department to systematically upgrade these veterans’ discharge papers, known as DD-214s, and remove all indicators of sexual orientation, instead of placing the burden on the veteran to apply themselves. A DD-214 is so important to a veteran’s post-military life that it comes with a warning: “This is an important record. Safeguard it.”
Veterans aren’t just asked for their DD-214 when accessing their VA benefits, but also when applying for a job, a loan or even an apartment.
“Every time they have to show that document they are essentially outed involuntarily,” said Jocelyn Larkin, one of the lawyers representing the plaintiffs.
“This case is not about damages,” Larkin said. “This case is about simply changing that piece of paper because the effect of changing that piece of paper is so incredibly consequential for our clients.”
The figures revealed at least 35,000 service members from 1980 to 2011 “received a discharge or separation because of real or perceived homosexuality, homosexual conduct, sexual perversion, or any other related reason.” The true figure could be significantly higher. According to the most recent data available from the Pentagon, just 1,375 veterans have been granted relief in the form of a discharge upgrade or correction to their record.
There’s simply no question that, at a minimum, the references to homosexuality and the like should be removed from the documents. (Obviously, if they were convicted of actual sex crimes, that should remain .) Beyond that, it’s slightly more complicated, although my instinct is to side with the plaintiffs here more broadly.
For one thing, 1980-1993 and 1994-2011 are two eras with distinct rules.
LGBTQ members joining before “Don’t Ask, Don’t Tell” went into effect on December 21, 1993 had to lie multiple times during the process to qualify for service and get even a basic security clearance. (Because I was technically commissioned into the Intelligence branch and thus required a Top Secret clearance, I was asked probably a dozen questions during my investigation circa 1987; it seemed comical even then.) So, they were actually committing crimes—albeit ones we now consider unjust.
DADT, ironically, was intended to allow LGB people to serve legally but actually made things worse. While no one was allowed to ask whether those seeking to enlist or obtain a commission were gay, those who did were required to be hyper-vigilant to remain closeted. Essentially, it created a situation where any intimation that someone was gay led to witch hunts to determine whether they could continue to serve.
Perhaps the simplest solution here is for President Biden to issue a blanket pardon for anyone discharged under less than honorable conditions for violating these obsolete policies.
This also opens broader public policy questions. Several of states have legalized marijuana and some other drugs that were once illegal. Should those who were convicted of violating those laws have their records expunged?