Institutional Inequality: Denying Benefits to Lesbian, Gay and Bisexual Veterans

Vol. 35 No. 2

By

Emily B. Hecht is a staff attorney with Servicemembers Legal Defense Network, a national, nonprofit legal services, watchdog, and policy organization dedicated to ending discrimination against and harassment of military personnel affected by “Don’t ask, don’t tell” and related forms of intolerance against lesbians, gays, and bisexual military personnel.

Virtually all veterans of the U.S. Armed Forces are entitled to military benefits of some kind. What each service member receives varies based on a variety of factors: length of service, reason for discharge, and discharge characterization, for example. An estimated one million lesbian, gay, and bisexual (LGB) veterans currently live within the United States, each of whom is entitled to veterans benefits. There are three types of LGB veterans: (1) those who have been discharged after finishing their required time of service (including retirees); (2) those who have been discharged under the U.S. military’s Homosexual Conduct Policy (colloquially referred to as “Don’t ask, don’t tell” and abbreviated herein as DADT); and (3) those who have been discharged before their service obligation was completed for some reason other than DADT. While each LGB veteran must satisfy all of the requirements he or she would otherwise have to meet to receive benefits, such veterans oftentimes are denied or disqualified from certain benefits as a result of their sexual orientation.

A DADT discharge has both immediate and lasting effects on LGB veterans. All veterans receive a form DD-214 upon discharge that lists the discharge characterization, the narrative reason for discharge, and the reenlistment code. A DD-214 issued in a DADT discharge will indicate (1) a negative nonwaivable reenlistment code, preventing LGB veterans from ever reenlisting in any branch of the service; and (2) “homosexual conduct,” “homosexual act,” “homosexual admission,” or something similar, as the narrative reason for discharge, effectively “outing” LGB veterans to every future employer who requests to see their discharge paperwork.

The U.S. military is one of the largest funders of higher education in the country, and one of the most valuable and most utilized benefits afforded veterans of the Armed Forces is the Montgomery GI Bill. To be eligible for this benefit, the service member must (1) pay into the GI Bill fund (usually completed during the first year of service), (2) vest in those benefits (a service member must complete a specified portion of his or her service contract in order to vest), and (3) receive an honorable discharge. Discharge characterizations are supposed to be based on the service member’s underlying service record. Generally speaking, unless there is some kind of aggravating factor, the majority of those discharged under DADT receive honorable discharges. However, if a service member is discharged from the military under DADT before they vest in their GI Bill benefits, they are not eligible for that educational assistance.

Some service members discharged under DADT may be subject to recoupment—a military demand for repayment of a prorated portion of scholarships, bonuses, or special pay from those who are discharged before they have completed their required service obligation. Whether the military can recoup from a service member depends on a number of factors, including whether the discharge is deemed to be “voluntary.” Because the military views statements of homosexual orientation as “voluntary,” in almost every instance when a service member tells the chain of command that he or she is gay, the military will require the service member to repay any scholarship, bonus, or special pay he or she has received. Once the service member is discharged, he or she will receive a bill from the military for the entire prorated portion of the money owed at the time of discharge.

For the most part, LGB veterans who are discharged either after completing their service obligation in full or before they have completed their time in service for a reason other than DADT will receive all of the benefits to which they would otherwise be entitled. However, all LGB veterans are denied access to a core group of benefits that similarly situated heterosexual veterans are entitled to: spousal benefits. DADT prohibits marriage or attempted marriage by service members to people of the same gender, and the Defense of Marriage Act prevents recognition of same sex marriages, civil unions, and domestic partnerships for all citizens, including active duty service members and veterans. Therefore, if a service member lives in a state where marriage (Massachusetts, California) or civil unions or domestic partnerships (New Jersey, Vermont, Washington, D.C., etc.) are available, they are prohibited by law from taking advantage of those legally recognized relationship statuses while still serving in the military (either on active duty or in the reserves) because of DADT. Once an LGB service member is discharged and becomes a veteran, he or she can marry, enter a civil union, or register as a domestic partner if the state so allows. However, because the Defense of Marriage Act prevents the federal government from recognizing these same sex relationships, spouses and partners of LGB veterans are denied access to death benefits, pension benefits, home loan assistance programs, medical benefits, the commissary, and any other benefits offered to heterosexual veterans. This is as blatant an act of discrimination as any that are perpetrated by the U.S. government against its own citizens.

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