On September 20th, the tenth anniversary of the repeal of “Don’t Ask, Don’t Tell” (DADT), a 1994 policy requiring immediate administrative separation of LGBTQ+ veterans who revealed their sexual preference or gender identity, the Veterans Affairs Office (VA) issued new guidance encouraging LGBTQ veterans to apply for benefits. The guidance also applies to veterans discharged based on HIV status.
If veterans were given an Other than Honorable (OTH) discharge, the VA will provide a Character of Discharge determination that their service was honorable for VA purposes, conferring benefits including home loan guaranty, compensation & pension, health care, homeless program, Veteran Readiness and Employment, and/or burial benefits. While this was not a change in policy, it was an announcement intended to encourage LGBTQ veterans to seek VA benefits.
The National Veterans Legal Services Program (NVLSP) is a national nonprofit organization that has worked since 1981 to ensure that the government delivers to our nation’s 22 million veterans and active duty personnel the benefits to which they are entitled because of disabilities resulting from their military service to our country. NVLSP has a free pro bono program, Lawyers Serving Warriors® (LSW).
LSW assists veterans with free legal help with discharge upgrades to veterans from all eras not only at the VA but also at the Department of Defense (DOD). An upgrade at the DOD confers full benefits, including GI Bill benefits, which are not available without a change in the discharge certificate from the DOD. We have represented LGBTQ veterans who were harmed by DADT.
For example, a Marine was threatened by a fellow service member with violence, bodily harm, and the disclosure of his sexual orientation. The Marine then wrote a letter to his commanding officer disclosing his sexual orientation. On the same day, the veteran was notified that his commanding officer was recommending he be separated due to his “statement of 9 July 2001 where you admit that you have a propensity to engage in homosexual acts.” His discharge certificate listed “homosexual admission” as the narrative reason for separation under DADT.
LSW volunteers wrote a brief to the DOD Board requesting that the veteran’s narrative reason for separation be changed based on the repeal of DADT. The Board agreed and changed the reason for separation to Secretarial Authority. His discharge certificate now fully reflects his honorable service.
The veterans impacted by the military’s improper dismissal of LGBTQ veterans are not only the estimated 14,000 veterans discharged during DADT but also an uncounted number who were discharged prior to DADT.
For instance, an Army soldier who served from 1981 to 1985 was demoted and discharged “because of homosexuality” under Other Than Honorable Conditions based on a report that she kissed a female soldier. We filed a brief on behalf of this veteran to the DOD Board, and the Board concluded that current standards should be “applied to previously-separated Soldiers as a matter of equity.”
The veteran received a discharge upgrade to an honorable discharge, which corrects the veteran’s discharge certificate and confers eligibility for all benefits, including GI Bill benefits.
As NVLSP celebrates its 40th anniversary this year, we urge LGBTQ veterans given less than fully honorable discharges to apply to the DOD and/or VA for upgrades. To apply for free assistance from LSW, submit an application. We also assist survivors of military sexual trauma and racial discrimination to upgrade unfavorable characterizations of discharge. We provide free legal assistance with discharge upgrades, including to veterans with disabilities such as Post-Traumatic Stress Disorder from combat or other trauma.
Rochelle Bobroff is the Director of the pro bono program Lawyers Serving Warriors® for the National Veterans Legal Services Program.