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 
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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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