The government finally agreed this month to pay full separation pay to gay and lesbian service members who were discharged under the discriminatory "Don't Ask, Don't Tell" (DADT) policy as part of a class action lawsuit brought by the ACLU. Approximately 181 honorably discharged veterans will now finally receive severance pay that had previously been cut in half solely because of their sexual orientation. Although the settlement provides much-needed relief for these veterans, it is also a reminder that the legacy of unfair treatment of gay and lesbian veterans continues even after the formal repeal of DADT.
Here's how the military's "separation pay" policy worked: by statute, all service members who serve six years in the military and are then discharged involuntarily are supposed to receive separation pay to ease their transition to civilian life. But the Department of Defense (DOD) had an internal policy not required by any statute of cutting that separation pay in half if service members were discharged, even honorably, for "homosexuality." That's what happened to the lead client in our class action lawsuit challenging this needless policy. Staff Sgt. Richard Collins was a decorated Air Force officer who served nine years before being kicked out under DADT. He was seen kissing his civilian boyfriend, in a car at a stoplight, when he was off-duty, out of uniform and 10 miles off base. After being discharged, Collins discovered that his separation pay was cut in half.
Collins' story is hardly unique. Many of those who were discharged under DADT were distinguished soldiers, airmen or cadets and had unblemished records. They were service members in good standing, and there was nothing dishonorable about their discharge. Yet, they are denied the same separation pay as other honorably discharged service members merely because they are gay or lesbian.
Unfortunately, the settlement cannot fully make up for the harm caused by DADT. Even though veterans will now belatedly receive the full separation pay they were entitled to, the time when they needed that separation pay the most when they were initially discharged and transitioning back into civilian life has passed. Unfortunately, because of the statute of limitations for suing the government, we were able to get relief only for service members who were discharged on or after November 10, 2004.
This settlement is also about more than money. It is about fairness. The discriminatory "separation pay" policy added insult to injury by telling lesbian and gay veterans that their service was worth only half as much as everyone else's. As Collins told us: "We gave all in serving this nation. The Pentagon should not give us half in return."
Another service member who was discharged under DADT and has since reenlisted described his experience in an interview:
Halving the rate was an insult to veterans like me not because it was less money, but because it was justified using the reason for our separation: "Homosexuality". It was, in essence, a slap in the face for those of us who were being involuntarily separated under Honorable conditions simple for being labeled gay. "You're only worth half as much as the typical service member because you're gay." It was the penultimate dig before we received DD-214 discharge papers with "Homosexual..." written at the bottom.Lesbian and gay service members and their families still face barriers to fair and equal treatment. The Pentagon has refused to provide service members with explicit protections against discrimination based on sexual orientation. As a result of the Defense of Mafrriage Act (DOMA), service members with same-sex spouses still cannot give the same protections to their loved ones that other service members are able to give. And transgender people are still categorically barred from service. There are many challenges ahead for LGBT service members and veterans, but this settlement is a small and important step for basic fairness.
Joshua Block is a Staff Attorney for the LGBT and AIDS Project of the American Civil Liberties Union (ACLU).
Suggested citation: Joshua Block, Full Separation Pay for Veterans Discharged Under 'Don't Ask, Don't Tell', JURIST - Hotline, January 30, 2013, http://jurist.org/hotline/2013/01/joshua-block-lgbt-soldiers.php
This article was prepared for publication by Theresa Donovan, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to her at email@example.com