BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1505 (Pan)
As Amended May 3, 2012
Hearing Date: June 26, 2012
Fiscal: Yes
Urgency: No
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SUBJECT
Department of Veterans Affairs: Veterans' Benefits:
Reinstatement
DESCRIPTION
This bill would provide reinstatement of state-offered veterans
benefits if the federal government first acts to reinstate
benefits to discharged veterans who were denied those benefits
solely on the basis of sexual orientation. This bill would
require the Department of Veterans Affairs to provide
information regarding veterans' legal services organizations
specializing in military discharge upgrades in printed materials
and by posting Internet resources on the Department's Web site.
BACKGROUND
Prior to 1993, the United States military prohibited homosexual
conduct in its ranks and discharged service members in violation
of this policy. In 1993, a federal law, colloquially termed
"Don't Ask Don't Tell" (DADT), was established, which allowed
gay and lesbian members to serve in the United States military
as long as they hid their sexual orientation and did not commit
any "homosexual acts." (10 U.S.C.S. Sec. 654.) According to
the Department of Defense, between 1980 and 2011, over 32,000
service members were discharged from service on the basis of
sexual orientation.
These discharged service members were separated from military
(more)
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service under several degrees of service. In cases in which the
sole basis for discharge was homosexual conduct, the
characterization of service was "Honorable," "General (under
Honorable Conditions)," or an entry-level separation. However,
many cases had misconduct issues associated with homosexual acts
and resulted in a characterization of "Other Than Honorable
Conditions." If a service member was discharged on the basis of
homosexual conduct, that reason would be noted on the discharge
document, which could stigmatize the veteran. The
characterization of service could then determine the level of
benefits the veteran would receive, and in most
characterizations of General under Honorable Conditions, some,
if not all, benefits, such as education, medical, dental,
burial, insurance, and other financial assistance, if not all of
the otherwise available benefits could be denied.
On December 22, 2010, Congress enacted the Don't Ask, Don't Tell
Repeal Act of 2010, which required the Secretary of Defense,
Chair of the Joint Chiefs, and the President to certify that the
repeal would not hurt military readiness or performance prior to
the Act becoming operative. (Pub. Law 111-321, Sec. 2(f)(1)(A),
124 Stat. 3515 (2010).) On July 22, 2011, the President so
certified the repeal of DADT. On September 20, 2011, DADT was
officially repealed.
This bill, sponsored by Equality California and Sacramento
Valley Veterans, seeks to reinstate veterans' benefits for
service members discharged on the basis of sexual orientation.
This bill was heard by the Senate Veterans Affairs Committee on
June 12 and passed out on a vote of 5-0.
CHANGES TO EXISTING LAW
Existing law prohibits, on the basis of race, national origin,
ethnic group identification, religion, age, sex, sexual
orientation, color, genetic information, or disability, the
unlawful denial of full and equal access to the benefits of, or
the unlawful 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. (Gov. Code Sec. 11135(a).)
Existing law requires every state and local public agency to
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render the service or provide the benefits or assistance it
provides to the public to every veteran on the same basis as to
any other eligible person. (Mil. & Vet. Code Sec. 720.)
Existing law provides that, if any public agency which has
rendered a service, provided benefits, or furnished assistance
to a veteran determines that the costs of rendering the service
or providing the benefits or assistance are recoverable from the
Veterans' Administration, it shall refer the matter to the
county veteran service officer, where applicable, for action and
shall assist the county veteran service officer in any way.
(Mil. & Vet. Code Sec. 721.)
This bill would provide that, if the federal government acts to
reinstate benefits to discharged veterans, who regardless of
their discharge classification, were denied those benefits
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, the state shall reinstate
any state-offered benefits to those veterans were denied due to
those federal policies.
This bill would require the Department of Veterans Affairs
(Department), to the extent practicable, to:
on the Department's Internet Web site, provide Internet
resources or links to Internet resources that provide
information regarding veterans' legal services organizations
that specialize in military discharge upgrades; and
in the Department's offices and walk-in locations, provide
printed resources created by veterans' legal services
organizations that specialize in military discharge upgrades.
This bill would declare legislative intent to extend fair and
equal treatment with regard to the administration of veterans'
services and programs to California's veteran population
regardless of sexual orientation.
This bill would also declare legislative intent to respond to
any federal reinstatement of benefits for discharged veterans,
who regardless of their discharge status, were denied those
benefits because of any federal policy prohibiting homosexual
personnel from serving in the United States Armed Forces, by
reinstating state-offered benefits for those veterans.
COMMENT
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1. Stated need for the bill
The author writes:
Under certain circumstances, veterans discharged with a "bad
conduct" discharge based solely on their sexual orientation,
may be denied California State Veterans benefits because of
the status of their discharges or based on a notation of their
character of service.
This bill seeks to assist veterans by helping them to find and
utilize effective claims representation by directing the
Department of Veterans Affairs to provide print and Internet
resources provided by veterans' legal services organizations.
It also clarifies that if the federal government reinstates
benefits for these veterans, the State of California shall do
the same.
Equality California, a co-sponsor of this bill, writes:
Following the statutory and administrative repeal of the
federal government's discriminatory "Don't Ask, Don't Tell"
policy, LGBT Ýlesbian, gay, bisexual, or transgender]
personnel can now serve openly in the U.S. armed forces.
However, as a general rule, veterans who received a
"dishonorable discharge" from the military under DADT or its
predecessor policies are ineligible for state and federal
veterans' benefits.
2. Providing state-offered benefits to veterans discharged on the
basis of sexual orientation
Existing federal and state law do not currently provide for
reinstatement of a veteran's benefits if the veteran was
discharged based upon his or her sexual orientation. This bill
would provide that, if the federal government reinstates
veterans' benefits to veterans discharged because of their
sexual orientation, then California would also reinstate
state-offered benefits.
Under California law, discharging an employee on the basis of
their sexual orientation is discriminatory and prohibited.
(Gov. Code Sec. 11135.) In 2009, then-Attorney General Edmund
G. Brown, Jr. issued an opinion regarding whether veterans
discharged for sexual orientation were otherwise eligible for
state-funded veterans' benefits. The Attorney General
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determined that, because sexual orientation is protected from
discrimination under Government Code Section 11135, Californian
veterans discharged for sexual orientation are entitled to all
state-funded veterans' benefits, including state-funded
veterans' housing. (92 Ops. Cal. Atty. Gen. 89 (Dec. 31,
2009).) To reach this determination, the Attorney General
reasoned as follows:
There is a further question, however: that is, whether an
LGBT service member who is separated from service on the basis
of his or her sexual orientation under the Don't Ask Don't
Tell policy is thereby rendered ineligible for state-funded
benefits that require an "honorable" or "under honorable
conditions" discharge? The class of discharge, of course, is
a matter of federal military law and is beyond the power of
the ÝCalifornia] Department Ýof Veterans Affairs] to affect.
However, it appears to us that a discharge based on homosexual
conduct would not usually render the veteran ineligible.
Again, we note that eligibility requirements for admission
into a Veterans Home and for some other veterans' benefits
include either honorable discharge or discharge under
honorable conditions. Official military policies and
procedures provide that, where the sole basis of a service
member's separation from the military is "homosexual conduct,"
the discharge is to be characterized as "honorable" or "under
honorable conditions" under ordinary conditions. 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. Accordingly, it does not appear that a
service member's sexual orientation, in and of itself, will
cause him or her to receive an "other than honorable
conditions" discharge, and this will be true even if the
member's sexual orientation formed the basis of a "homosexual
conduct" separation from service under Don't Ask Don't Tell.
Unless it is an "other than honorable" discharge, a discharge
premised solely on the member's sexual orientation or gender
would not disqualify him or her for state-funded veterans'
benefits. (Id. at pp. 8-10.)
Although this opinion determined benefit availability to
lesbian, gay, bisexual, and transgender (LGBT) veterans, it did
not, and could not, provide for upgrading a veteran's class of
discharge in order to receive state-funded benefits. These
veterans would have to apply for discharge upgrades, which must
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be approved by the federal government, in order to qualify for
federal or state veteran's benefits.
Equality California, in support, argues that this bill "will
clarify, reinforce and expand the effect of the Attorney General
opinion, especially with regard to veterans who may have
received a dishonorable discharge solely because of their sexual
orientation or gender identity. AB 1505 will ensure that
veterans and their families, who made tremendous sacrifices to
serve our country, are not denied critical state benefits, such
as college tuition fee waivers for dependents, disabled veteran
business enterprise opportunities, home loans, and property tax
exemptions." As a matter of public policy, it would be
appropriate for California to reinstate veterans' benefits at
such time as the federal government reinstates benefits for
these veterans.
3. Providing discharge upgrade information to veterans
This bill would require the Department of Veterans Affairs to
provide printed information regarding military discharge
upgrades and to post on the Department's Internet Web site
resources or links to Internet resources that provide
information on veterans' legal services organizations
specializing in military discharge upgrades.
The author argues that this bill would provide critical
information that would help veterans navigate the complex
process of upgrading a military discharge. Particularly, this
bill would help veterans with disfavorable discharges based upon
their sexual orientation to apply for discharge upgrades, which
will help these veterans obtain benefits. In support, the
California Communities United Institute argues that:
Congress has ended the injustice to the Don't Ask, Don't tell
military policy. However, it has yet to end the injustice of
the refusal of the federal government to provide veterans
services to the mend and women who were discharged under this
policy. California can at least partially correct this
injustice by providing the veteransÝ'] services that are paid
for solely with state funds.
And many of our LGBT veterans need that help. They suffer all
the same problems faced by other veterans returning to civil
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life. In fact, their challenges may be even greater because
of the trauma of the way they were discharged from the
military. . . . Many of these LGBT veterans served in Iraq .
. . or Afghanistan. Many of them are living with physical and
emotional injuries as a result of that experience.
According to the Department of Housing and Urban Development
(HUD), and the Department of Veterans Affairs (VA), over
67,000 veterans are homeless on any given night. . . . Only
eight percent of the general population can claim veteran
status, but nearly twenty percent of the homeless population
are veterans. . . .
Finding a job in these times is hard enough. It is harder
still if a prospective employer finds out that a job seeker
was discharged from the military because he or she is LGBT.
We owe a deep debt of gratitude to our veterans for the
services they rendered to this nation. And we owe it to all
of them, including our LGBT veterans.
Accordingly, veterans who were discharged from service on the
basis of their sexual orientation and were denied veterans'
benefits should be entitled to upgrade their discharge. With an
upgraded discharge, the veteran presumably would qualify for
various veterans' benefits. Notably, this bill provides for
information to be made available to all veterans, not just those
discharged on the basis of sexual orientation, maintaining
California's long-held tradition of freedom from discrimination.
Support : American Federation of State, County and Municipal
Employees, AFL-CIO; American Legion, Department of California;
AMVETS, Department of California; Asian Americans for Civil
Rights & Equality; Betty T. Yee, Board of Equalization member;
California Communities United Institute; California State
Commanders Veterans Council; National Association of Social
Workers, California Chapter; Vietnam Veterans of America,
California State Council
Opposition : None Known
HISTORY
Source : Equality California; Sacramento Valley Veterans
Related Pending Legislation : None Known
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Prior Legislation : None Known
Prior Vote :
Senate Committee on Veterans Affairs (Ayes 5, Noes 0)
Assembly Floor (Ayes 54, Noes 6)
Assembly Committee on Appropriations (Ayes 12, Noes 0)
Assembly Committee on Judiciary (Ayes 7, Noes 1)
Assembly Committee on Veterans Affairs (Ayes 6, Noes 0)
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