Since the 1950s, the U.S. military discharged an estimated 100,000 plus soldiers for their sexual orientation. Many lesbian, gay, and bisexual (LGB) soldiers faced court martials for charges such as indecent acts, sodomy, and conduct unbecoming or for pretextual charges on other grounds. Convicted soldiers faced punitive discharges. Others, generally without the benefit of legal representation to advise them on the consequences, took administrative discharges. While commanders had discretion to issue honorable or under honorable condition discharges in such instances, many chose instead to give discharges “under conditions other than honorable” colloquially known as “bad paper” discharges. President Bill Clinton’s compromise 1994 Don’t Ask Don’t Tell (DADT) policy allowed LGB individuals to serve in the military, at least in theory, but simultaneously banned those who engaged in homosexual acts and those disclosed their homosexuality or bisexuality from service. Despite DADT’s limitations on investigations and harassment of LGB soldiers, the military forced out an estimated 13,000 troops during its pendency. Only with President Barack Obama’s 2010 repeal of the DADT policy could service people serve openly and without fear of expulsion based on sexual orientation.[1] Yet the harms to those expelled prior to 2010 persisted. This post details the efforts taken to address those harms, including President Joe Biden’s October 2024 pardon and the June 2024 Veterans Administration’s guidance bad paper discharge policy, as well as what work remains to be done.
But first, I outline the harms of discharge to provide a sense of the high stakes here. Most obviously, discharged soldiers lost their potential military career. Many experienced significant emotional harms including shame, isolation from the veteran community, and resultant mental health issues. Those who received less than honorable discharges faced additional, significant material consequences.[2] Both punitive discharges and the less severe “bad paper” discharges can result[3] in ineligibility for veteran benefits such as: health care, disability compensation, access to the GI Bill, life insurance, survivor pensions, burial benefits, insurance, reenlistment rights, veterans’ preference in employment, with additional consequences for punitive discharges such as prohibitions on owning or purchasing firearms, and even losing the right to vote in some states. Nor are punitive or bad paper discharges necessarily included in ban the box initiatives. In other words, employers can lawfully ask about such discharges even when they cannot ask about criminal convictions and use such information in their hiring decisions.
No president has yet fully apologized for the military’s discriminatory policy against LGB individuals. President Obama’s statement addressing the repeal of DADT and allowing service members to serve openly did include a comment that “as Commander in Chief, I want those who were discharged under this law to know that your country deeply values your service.” As described in point one below, the Department of Defense (DoD) concurrently issued internal guidance to ameliorate some of the ongoing harms of DADT for some of those affected. On June 26 of this year, President Biden came closer by creating an explicit pardon process for some former service members “convicted simply for being themselves.” In an official statement, he referenced these convictions as “an historic wrong,” defended the “courage and great sacrifice” of such soldiers, and explained that the mass pardon was rooted in “dignity, decency, and ensuring the culture of our Armed Forces reflect the values that make us an exceptional nation.” But as I have written elsewhere, part of assessing an apology or a reparation is determining how the apologizer remedies all those previously harmed as fully as possible. And given the variety of individuals unable or unlikely to benefit from any of the reform efforts, the past is still very much present for many of those wronged by the military’s exclusionary policies.
So let’s turn to the avenues discharged LGB individuals have in order to address their harms.
1. Individualized Appeals to Upgrade Discharges Post DADT
The DoD allows veterans to file individual appeals to upgrade their discharges. This individualized appeals process puts the onus on the discharged individuals rather than on the military itself. In the wake of DADT’s repeal, the DoD directed discharge review boards to grant requested upgrades when the “discharge was based solely on anti-LGBTQ policy and there were no other aggravating charges.” The DoD has conducted several outreach campaigns including individualized letters to those who are eligible. DoD statistics reveal around 1,600 applications with most succeeding. If former service members receive an unfavorable outcome, they can also apply to the boards for correction of naval and military records for a hearing. In this venue, boards can give relief for broader injustices including reasons such as “discharge for homosexual conduct that is not related to his or her service and whose service record is unblemished.” The DoD now directs those discharged more than 15 years ago for sexual orientation to apply directly to the board of correction for their military department.
Academic and media coverage suggests the discharge review process is deeply flawed, both with regards to this particular issue and more generally as well. The media has numerous examples of those who have been denied despite seeming eligibility. Many more are deterred by the arduous process which can include obtaining military records, personal statements, letters of support, medical records, and proof of good conduct in the military. Others may be reluctant to engage the institution that harmed them. Professor Michael Wishnie suggests such skepticism is well founded. He describes boards that “act with impunity. . . . Practitioners report the sort of routine violations of basic notions of procedural due process and administrative law that recall horror stories of an earlier pre Goldberg v. Kelly era.” He describes reliance on secret evidence, summarily denied applications, ignored arguments of counsel, and the likelihood of denials without a hearing. In a similar setting, the reforms to help veterans to apply for PTSD-based discharges reveal that boards often add significant limitations not indicated in guidance memos or legislation. And lastly, while the various service review boards claim that the average time to process applications is less than a year, but the media is replete with stories of much longer waits.
2. 2021 Veterans Administration Clarification of Benefit Eligibility
While the DoD issues discharges, the Veterans Administration (VA) determines eligibility for many benefits. In order to access these benefits, soldiers apply for veteran status with the VA. Veteran status is awarded to those who satisfy minimum service requirements and possess a qualifying character of service. Minimum service requirements to qualify as a veteran for VA purposes generally mean one must serve the lesser of 2 years or the entire initial obligation period. Those with bad paper discharges or punitive discharges would not generally satisfy the qualifying character of service. That said, the VA has previously provided benefits to individuals with other than honorable (i.e., bad paper) discharges such as when it made emergency mental health and crisis care available to discharged soldiers otherwise ineligible for benefits. So, “citing the widespread experience of LGBTQ veterans that the discharge process is ‘onerous’”, the Veterans Administration clarified under 2021 guidance that “VA adjudicators shall find that all discharged service members whose separation was due to sexual orientation, gender identity or HIV status are considered ‘Veterans’ who may be eligible for VA benefits. . . . . so long as the record does not implicate a statutory or regulatory bar to benefits.” Like the discharge upgrades described in point 1, the VA determination requires those discharged to initiate an individualized process. But as of the filing of the 2023 class action described in point 3 below, the VA had still not provided eligibility guidance leaving those discharged uncertain as to who could qualify. And even for those eligible, VA eligibility would not affect discharge upgrades and other non-VA administered benefits contingent on such an upgrade.
3. 2023 Class Action Seeking Discharge Upgrades
In 2023, discharged service members filed a class action lawsuit seeking upgrades for those who were discharged “because of real or perceived homosexuality, homosexual conduct, sexual perversion, or any other related reason.” The class action challenges the discriminatory nature of their discharges and their discharge paperwork which contains references to their sexual orientation, something that is not generally true for other soldiers. The class is limited to those with discharge paperwork that references sexual orientation as regards their separation. They request that the military review all discharges pursuant to DADT and predecessor policies and remove indicators of sexual orientation from all relevant discharge paperwork as well as upgrading discharges to honorable and notify all relevant agencies. A federal magistrate judge recently ruled that the case could move forward even though named plaintiffs had not first used the military’s process as described in point 1 to pursue a change in status.
4. 2023-2024 DoD Proactive Review of DADT Related Discharges
In September 2023, the Pentagon announced it would proactively review DADT related discharges (as the military maintains most of those discharged during DADT received honorable discharges). Doing so means the relevant individuals would not have to apply individually under the DoD appeal process. In October 2024, the Defense Department announced it had completed its review and would be upgrading over 800 veterans’ discharge status.
Yet the review was too limited in scope to help many affected veterans. It did not include almost 4,500 LGB soldiers from the DADT period who had not completed the requisite amount of service. Nor did it include those who had been discharged prior to DADT which includes approximately 114,000 veterans since World War II.
5. 2024 Veteran Administration Bad Paper Discharges Approach
In June 2024, the Veterans Administration announced that it would consider veteran appeals to bad paper discharges who “‘can show compelling circumstance’—such as harassment, military sexual trauma, discrimination, mental health struggles—that may have led to their forced exit.” Unfortunately, this reform seems unlikely to help many. It was initially believed that about 4200 individuals would qualify for benefits, but as of September, reports suggest only eight veterans have applied. The approach also excludes those who were court martialed or accepted a discharge to avoid a court martial as well as those who did not serve for a sufficient time.
6. 2024 Biden Pardon Process
In late June 2024, President Biden wielded his pardon power to allow veterans to apply for certificates of pardon which would remove a barrier to VA benefit eligibility. The pardons extend from the criminalization of sodomy (unnatural copulation) in the 1951 Uniform Code of Military Justice to the end of DADT. This is a very welcome move that addresses many of those left out of prior reform efforts.
Yet the pardons are limited to discharges for convictions for unnatural copulation and thus excludes those who faced additional related charges such as indecent acts or conduct unbecoming as well as those who were never convicted but instead “voluntarily” took bad paper discharges. The Biden administration indicates those who apply for the pardon and are ineligible for these reasons can get an expedited military board of review process as described in point 1 above.
Conclusion
Given the current state of affairs, what should the Biden or the next administration do to fully address those LGB veterans still suffering from their sexual orientation related discharge? I offer three suggestions. First, the Pentagon should do a pro-active review reaching back to the 1950s. I understand this is a huge undertaking, particularly as many discharge records are not digitized. But given the nature of the wrong, the burden should be on the party that inflicted the harm, not the one who suffers from it. Second, discharge upgrades should be available to all those who were discharged for reasons only related to their sexual orientation. As the Pentagon conducts the pro-active review, it ought to include at least the widest scope of the combination of existing discharge processes, Biden’s pardon criteria, and the VA’s eligibility determination. In sum, it ought to include everyone discharged for sexual orientation related reasons (whether formal or underlying pretextual discharges) except those who would be ineligible for other reasons. So, of course, those who engaged in additional bad behavior that violated the UCMJ such as non-consensual sexual activity, harassment, or other unrelated crimes should not be eligible for a pardon or discharge upgrade. But reviewers ought to be sensitive to context and willing to request information that would demonstrate such charges were pretextual. Third, eligibility for VA benefits should be extended to those who did not satisfy the requisite term of service. While conditioning benefits to induce sufficient service to the military generally makes sense, again, the reason soldiers here did not satisfy the requirement is the fault of the discriminatory policy. It does not create a moral hazard for future inductees. Providing benefits would not only right the wrong, but would send a strong signal that the military is committed to righting its wrongs. That message can reach far beyond the affected veterans.
[1] This is very much not to suggest that harassment of such service people came to an end at this time.
[2] According to the class action complaint described in the complaint, even some of those with honorable discharges might be eligible for additional benefits.
[3] In some instances, individuals who go through a character of service determination may receive eligibility within the VA system, but such grants are rare.
