BILL ANALYSIS Ó
AB 1505
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Date of Hearing: April 17, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1505 (Pan) - As Amended: April 9, 2012
SUBJECT : DEPARTMENT OF VETERANS AFFAIRS: VETERANS' BENEFITS
KEY ISSUE: SHOULD THE CALIFORNIA DEPARTMENT OF VETERAN AFFAIRS
REINFORCE THE STATE'S POLICY OF NONDISCRIMINATION AND PROVIDE
FULL STATE VETERAN BENEFITS TO SERVICE MEMBERS WHOSE ELIGIBILITY
FOR FULL FEDERAL VETERAN BENEFITS MAY BE RESTRICTED AS A RESULT
OF BEING DISCHARGED FROM THE MILITARY UNDER THE DISCRIMINATORY
"DON'T ASK, DON'T TELL" POLICY?
FISCAL EFFECT : As currently in print this bill is keyed
fiscal.
SYNOPSIS
Existing California law bars discrimination on the basis of sex
or sexual orientation in state programs and benefits. In 2009,
then-Attorney General Brown issued an official opinion
concluding that under this law, "neither military veterans nor
their registered domestic partners may be discriminated against
in the provision of state-funded veterans' benefits on the basis
of their gender or sexual orientation, the federal 'Don't Ask,
Don't Tell' policy notwithstanding." This bill, co-sponsored by
Equality California and Sacramento Valley Veterans, seeks to
reinforce California's policy of nondiscrimination and ensure
that all veterans discharged under the former DADT or its
predecessor policies, regardless of the class of their
discharge, are eligible to receive full California state
veterans' benefits. This bill passed the Assembly Veterans
Affairs Committee by a 6-0 vote, and has no registered
opposition.
SUMMARY : Requires the Department of Veterans Affairs to provide
qualified benefits for California service members who were
discharged from the military under the former "Don't Ask, Don't
Tell" policy. Specifically, this bill :
1)Defines "qualified benefits" to mean benefits that are
administered by the Department of Veterans Affairs, including,
among other things, college tuition fee waivers for dependents
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of veterans, nonresident college fee waivers, and employment
insurance assistance.
2)Defines a "qualified veteran" to mean any person who served in
the U.S. Armed Forces who was separated solely on the basis of
sexual orientation pursuant to any federal policy prohibiting
homosexual personnel from serving in the Armed Forces of the
United States, and not as a result of any other violation.
3)Provides that the definition of "qualified veteran" shall
apply without regard to the classification of separation
executed by the U.S. government.
4)Requires a qualified veteran to provide documentation to the
CDVA relating to separation from the U.S. Armed Forces in a
form and manner as prescribed by the Department of Veterans
Affairs.
EXISTING LAW:
1)Provides that no person in the State of California shall, on
the basis of race, national origin, ethnic group
identification, religion, age, sex, sexual orientation, color,
genetic information, or disability, be unlawfully denied full
and equal access to the benefits of, or be unlawfully
subjected to discrimination under, any program or activity
that is conducted, operated, or administered by the state or
by any state agency, is funded directly by the state, or
receives any financial assistance from the state. (Government
Code Section 11135.)
2)Authorizes the California Department of Veterans Affairs
(CalVet) to assist U.S. veterans and their dependents or
survivors in presenting and pursuing claims for veteran
benefits or services arising out of war service, and in
establishing the right to any privilege, preference, care, or
compensation provided for by U.S. or California law.
(Military and Veterans Code Section 699.5(a).)
COMMENTS : This bill, co-sponsored by Equality California and
Sacramento Valley Veterans, seeks to require the Department of
Veterans Affairs to provide qualified benefits for California
service members who were discharged from the military under the
former "Don't Ask, Don't Tell" policy (DADT).
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Instituted in 1993, the discriminatory DADT policy generally
prohibited anyone who had sexual, bodily or romantic contact
with a person of the same sex from serving in the armed forces
of the United States, and prohibited any homosexual or bisexual
from disclosing his or her sexual orientation, or from speaking
about any homosexual relationships, including marriages or other
familial attributes, while serving in the military. DADT also
allowed that if a gay or bisexual service member hid their
sexual orientation, commanders were not allowed to investigate
their sexuality. (Pub.L. 103-160 (10 U.S.C. § 654).) According
to Department of Defense data, over 32,000 service members were
separated under DADT and its predecessor policies between 1980
and 2011 when it was finally repealed.
According to the author:
As a general rule, veterans separated from the
military with a discharge that is characterized as
"dishonorable" or "other than honorable" are
ineligible to receive state or federal veterans'
benefits. However, in 2009, Attorney General Jerry
Brown issued an opinion determining that under
existing anti-discrimination law, the California
Department of Veterans Affairs may not discriminate in
its administration of veterans' benefits and programs.
. . This bill seeks to clarify that veterans who were
discharged from the military solely on the basis of
their sexual orientation may remain eligible for
veterans' benefits provided by California."
Attorney General's Opinion reinforces the state policy of
nondiscrimination in the provision of state veterans' benefits,
notwithstanding DADT. In 2009, then-Attorney General Jerry
Brown's office issued an official opinion paper (Opinion 08-801,
12/31/09) concluding that, under California law, "neither
military veterans nor their registered domestic partners may be
discriminated against in the provision of state-funded veterans'
benefits on the basis of their gender or sexual orientation, the
federal DADT policy notwithstanding."
The Attorney General also analyzed an additional question,
namely whether an LGBT service member who is separated from
service on the basis of sexual orientation under DADT is thereby
rendered ineligible for state benefits that require an
"honorable" or "under honorable conditions" discharge. Because
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discharge premised solely on a member's sexual orientation under
DADT policy does not rise to the level of "dishonorable" or
"other than honorable," the AG concluded that such a discharge
would not disqualify the person from receiving California
veteran benefits.
Addressing remaining technical issues relating to "other than
honorable" discharge status. Under DADT, discharge for
"homosexual conduct" is characterized as "other than honorable"
only when there are aggravating circumstances in connection with
one or more completed, attempted, or solicited homosexual acts.
(Dept of Defense Instruction No. 1332.14, Enclosure 3, p.19.)
This applies, for example, to a service member discharged for
engaging in homosexual activity rather than simply revealing his
homosexual orientation to a superior. According to the author,
this bill is intended to ensure that all veterans discharged
under DADT or its predecessor policies, regardless of the class
of their discharge , are eligible to receive full state veterans'
benefits.
In its analysis, the Assembly Veterans Affairs Committee noted,
however, that although California alone controls the provision
of state veteran benefits, the statutory construction of many of
our benefit laws are conditioned on the veteran's federal
benefits status and/or discharge type. Therefore, for the
subset of LGBT service members who received a "dishonorable" or
"other than honorable" discharge status, it appears that any
state benefit that requires a certain federal status to trigger
eligibility may not be available to the veteran unless further
changes are made to revise the current statutory construction of
eligibility, notwithstanding the current state policy of
nondiscrimination reinforced by this bill and the AG's opinion.
Individual veterans may also apply to military authorities
seeking to upgrade one's discharge status so as to become
eligible, but discharge upgrades are strictly within the purview
of the federal government.
In order to ensure that all veterans who were discharged under
DADT are covered by this bill, particularly those who are not
already ineligible, the author has stated he will continue to
work with the Department of Veterans Affairs, as the bill moves
forward, to address these technical concerns that arise from
statutory language that relies upon federal triggers.
REGISTERED SUPPORT / OPPOSITION :
AB 1505
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Support
Equality California
Sacramento Valley Veterans
Betty T. Yee, Board of Equalization member (1st Dist.)
Asian Americans for Civil Rights & Equality
American Federation of State, County and Municipal Employees
(AFSCME)
California Communities United Institute
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334