September 20 marks the tenth anniversary of Congress’s repeal of “Don’t Ask, Don’t Tell” (DADT), but the legacy of that discriminatory policy and its predecessors continues to exact harm. Under DADT, the United States Armed Forces prohibited openly bisexual, lesbian, and gay people from serving in the military. Precursor policies dating back to the 1940’s barred gay service members entirely. Advocates estimate that, between World War II and DADT’s repeal in 2011, the military discharged as many as 114,000 service members on the basis of actual or perceived sexual orientation, sweeping in transgender, gender non-conforming, and queer service members perceived to be gay as well.
The repeal of DADT was a cause for celebration, but those service members subject to it still must contend with a loss of valuable benefits, bureaucratic intransigence, and stigmatization. Once ousted, veterans typically received discharge paperwork indicating their reason for discharge as “homosexuality” or “homosexual conduct.” Since employers often ask for veterans’ discharge paperwork, this scarlet letter has outed countless veterans to employers who could use it to discriminate. Perhaps most importantly, many LGBTQ service members also received a less than “Honorable” discharge. The military issues each service member a “characterization of service,” or discharge status, when released from service. Most service members receive an Honorable discharge, which entitles one to all VA benefits. But those who receive a less than Honorable discharge—such as a General Discharge Under Honorable Conditions, an Other Than Honorable discharge, a Bad Conduct Discharge, or a Dishonorable Discharge—cannot access some of the essential benefits awarded to those who have served our country, such as GI Bill education benefits, VA health benefits, burial in a VA national cemetery, and more.
When Congress repealed DADT in 2011, the military established a process for veterans discharged under the policy to remove justifications related to their sexual orientation from their paperwork and upgrade their status to “Honorable.” Yet this process shamefully places the burden on individual service members to correct their records, after many of them had endured years of discrimination due to discharges dating back decades. To complete this procedure, veterans must assemble a variety of old records, in most cases obtain the help of an attorney, and typically wait 18 months or more for the board that decides discharge upgrade petitions for their military branch to reach a result. If they exhaust their administrative remedies, veterans must then file an appeal in court, for which they must seek the help of a lawyer.
Given the burdensome process, it should come as no surprise that very few eligible veterans have taken this step. By 2015, fewer than 500 veterans had even applied to update their discharge status, despite the many benefits that such upgrade would provide.
The story of Airman 2nd Class Helen James, a client of Legal Aid at Work, illustrates the difficulty of navigating the current process. Following in the footsteps of her father, an Army veteran, Helen entered the military in 1952 as a radio operator on an Air Force base in Roslyn, N.Y. No one talked in those days about being a lesbian, Helen recalls, but she was grateful to have found a small and accepting, if low profile, LGBTQ community during her time in the military.
Everything changed when Helen and three friends were picked up by military police and interrogated on their way back from New York City one night. As it turned out, the military had bugged her room and surveilled her for months as part of the Lavender Scare, an effort initiated by President Eisenhower to rid the federal government and military of “homosexuals.” The night the military police arrested her, they harassed her for hours, threatening to tell her mother that he was a lesbian unless she signed a document they put in front of her. Shortly thereafter, Helen received a dishonorable discharge and found herself suddenly unemployed. Because of her type of discharge, she was unable to return to the teaching career she had before the Air Force. She moved to Connecticut to distance herself from her family, too afraid to tell them what happened, and found a job on a tobacco farm. Helen later attended the University of Pennsylvania to study physical therapy. She worked as a physical therapist until securing a job as a professor at Fresno State University. All this time, she had been ineligible for veterans’ benefits. It took her more than 60 years to shake the shame and anxiety.
Helen came to Legal Aid at Work in 2016 seeking assistance in obtaining her discharge upgrade. Helen had followed all the steps to apply for an upgrade from the Air Force Board for Correction of Military Records (AFBCMR), but the AFBCMR ignored its own 18-month deadline for upgrading the discharge. To help Helen, we had to resort to filing a federal lawsuit in the Eastern District of California. In James v. Wilson, we sought an order under the Administrative Procedure Act to order the AFBCMR to upgrade Helen’s discharge status to “Honorable” and to correct the reason for separation on her records. In response, the Air Force admitted evidence of an “injustice.” On January 17, 2018, Helen finally received her long-awaited upgrade and was issued a new discharge paper that reads “Honorable.” This change, long overdue, has finally allowed Helen to receive certain veterans’ benefits and services to which she should have always been entitled.
Helen is not alone, yet she is sadly one of only a handful of service members discharged because of their sexual orientation who have managed to upgrade their discharge status. Tens of thousands of other LGBTQ-identifying veterans are foreclosed from receiving the benefits they deserve.
As the tenth anniversary of DADT’s repeal approaches, there is new movement to address these harms. On March 4, Representatives Mark Takano and Anthony Brown introduced a bill, H.R. 1596, to create a commission to study the ongoing inequities faced by LGBTQ servicemembers and veterans. Now, Legal Aid at Work, together with The Impact Fund and other advocates, is launching an effort to get the Departments of Defense and Homeland Security to automatically upgrade the discharges of these veterans to “Honorable” status. It is past time for the military to right the wrongs stemming from DADT and other anti-gay policies, ensuring that our LGBTQ veterans receive the full range of benefits available.
* Jared Odessky is a Skadden Fellow and Gender Equity & LGBTQ Rights Program at Legal Aid at Work
If you or someone you know is a former service member who served in any branch of the U.S. armed forces, were separated from service for being openly LGBTQ—or because others thought you were—and received anything less than an honorable discharge, please contact us on a confidential basis by email or by calling (415) 593-0038 for more information or to share your story.