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 TW 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) AB 1505 (Pan) Page 2 of ? 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 AB 1505 (Pan) Page 3 of ? 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 AB 1505 (Pan) Page 4 of ? 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 AB 1505 (Pan) Page 5 of ? 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 AB 1505 (Pan) Page 6 of ? 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 AB 1505 (Pan) Page 7 of ? 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 AB 1505 (Pan) Page 8 of ? 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) **************