BILL ANALYSIS �
SENATE COMMITTEE ON VETERANS AFFAIRS
Senator Ben Hueso, Chair
BILL NO: AJR 44 HEARING DATE: 8/12/14
AUTHOR: Bloom
VERSION: 6/19/14
FISCAL: No
VOTE: Majority
SUBJECT
Veterans Benefits.
DESCRIPTION
Existing law:
1.Federal law:
a. Provides a broad range of benefits and services to
eligible veterans of the U.S. Armed Forces, delivered
primarily through the U.S. Department of Veterans Affairs
(VA), but also through other federal and some state
agencies.
b. (Repealed in 2011) "Don't Ask, Don't Tell, Don't Harass"
(DADT) which prohibited military personnel from
discriminating against or harassing closeted homosexual or
bisexual military service members or applicants, while
barring openly gay, lesbian, or bisexual persons from
service in the U.S. Armed Forces.
1.State law:
a. Provides a modest array of benefits and services to
veterans of the U.S. Armed Forces, delivered primarily
through the California Department of Veterans Affairs
(CalVet), but also through other state agencies.
b. Establishes and funds a system for assisting veterans in
applying for and managing their federal and state veterans
benefits, which includes federal claims representation by
county veterans service officers (CVSOs).
This bill:
Urges the Department of Defense, Congress, and President:
1.To create a more efficient process of upgrading the status of
persons, who were "dishonorably" or other than honorably
discharged from the Armed Forces of the United States, and
2.To provide benefits, including applicable spousal benefits, to
those veterans discharged solely on the basis of their sexual
orientation.
BACKGROUND
Military Discharges Based on Sexual Orientation
Between World War II and the September 2011 repeal of DADT,
approximately 114,000 American military service members were
discharged due to actual or alleged violations of official
military restrictions on sexual orientation. Many of these
individuals, depending upon their particular discharge
classifications and the states in which they lived, were treated
as felons and precluded from voting, collecting unemployment
benefits, and qualifying for federal veterans' benefits, such as
VA health care and disability compensation.
In late 2011 President Obama lifted the longstanding ban on
openly gay men, lesbians and bisexuals serving in the U.S.
military. Individuals who join the military after that policy
change may serve openly without discrimination based on sexual
orientation.
However, this change was made prospective only for the currently
serving military; it did not address the veteran status of
individuals discharged prior to the end of DADT. If these
persons were ineligible for veterans benefits prior to the 2011
change in military policy, they were still ineligible.
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California offers a number of state-level benefits to military
veterans, but eligibility for these state benefits is premised
on the individual having achieved the veteran status awarded by
the federal government. In 2012, the Legislature enacted AB
1505, which provided that -- if the federal government acts to
reinstate federal veterans benefits to those previously
discharged LGBT service members - then the State of California
also shall reinstate any state-offered benefits to them.
In the 113th Congress (2013-14), federal legislation - The
Restore Honor to Service Members Act, S. 1956 and H.R. 2839 -
was introduced into both houses that would ensure that the
service records of gay, lesbian and bisexual troops discharged
due to sexual orientation would receive a "timely, consistent
and transparent" review, and those confirmed to have served
honorably would see their records upgraded. A successful upgrade
would open the door to restoration of veterans benefits. Neither
the Senate nor House bill has made significant progress through
the congressional legislative process.
COMMENT
1.According to the Servicemembers' Legal Defense Network:
The discharge characterization for those discharged under
DADT or the prior policy should accurately reflect the
character of their service. This is not always the case.
Service members who were discharged under DADT generally
received an Honorable or General under Honorable Conditions
discharge based on their service records. However, a service
member discharged for a "Homosexual Act" that involved a
so-called "aggravating factor" might have been given an Other
Than Honorable (OTH) discharge characterization. Most of the
factors on the list (such as acts involving minors,
prostitutes or coercion) constituted unacceptable behavior
and should have resulted in an OTH. But there were two
"aggravating factors" that did not inherently constitute
misconduct and that should not necessarily have resulted in
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OTH discharges. These were acts committed openly in public
view (e.g., holding hands at a restaurant) and acts committed
on base or on post (e.g., a quick hug while being dropped
off).
In addition, the Navy and Marine Corps gave those discharged
for "marriage" or "attempted marriage" an OTH, while in the
Army and the Air Force, members discharged for same conduct
received Honorable or General under Honorable Conditions
discharges, based on their service record.
Service members discharged under the pre-DADT policy were
very likely to receive discharges that were less than
Honorable.
Less than Honorable discharge characterizations can have
lifelong consequences, such as limiting the veteran's access
to the GI Bill or Veterans Administration healthcare.
Former service members who received a less than Honorable
discharge characterization that is not reflective of their
service are eligible to apply to have that discharge upgraded
to mirror their service?
Even if their discharges were Honorable, service members
discharged under DADT or the prior policy have two notations
on their discharge paperwork that they might find troubling.
The negative reentry code (usually an RE-4 code) marks the
veteran as someone who the military has made a judgment is
not fit for military service. It is typically reserved for
veterans whose discharge was related to misconduct, such as
drug or alcohol abuse.
The narrative reason for discharge summarizes the basis of a
veteran's separation from the military. In the case of a DADT
discharge, the narrative reason is often "Homosexual
Conduct," "Homosexual Admission" or even just "Homosexual."
Veterans often need to submit their discharge paperwork when
applying for jobs in the civilian world. When the narrative
reason for separation is "Homosexual" or a variation on that,
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the former service member is compelled to be immediately
"out" to perspective employers and anyone else who sees the
document. When there is a negative re-entry code, employers
may conclude the former service member had engaged in
misconduct while in the armed service.
The repeal of DADT and the adoption of a new regulatory
framework allowing LGB service members to serve openly allows
those discharged under DADT or the prior policy to apply to
have their discharge paperwork changed. Discharge Review
Boards (DRBs) can "change a discharge or dismissal, or issue
a new discharge" based on "propriety and equity." This
includes taking into account current regulations and deeming
a discharge inequitable if policies and procedures "under
which the applicant was discharged differ in material
respects from those currently applicable on a Service-wide
basis" and if the "current policies or procedures represent a
substantial enhancement of the rights afforded" to the
applicant. Boards of Correction for Military Records can
likewise make corrections to any military record when it is
necessary to "correct an error or remove an injustice.
The existing discharge review board process is not easy to
understand, can take twelve months or more, and places the
time, expense, etc., all the burden on the discharged
individual. This may make sense in other contexts, but to
truly undo the damage caused by DADT and prior policies, it
is inequitable to make each servicemember fight his or her
own individual battle. Moreover, it is a waste of resources
to have the Review Boards hear the same issue over and over
again only to reach the same conclusion.
( http://www.sldn.org/pages/discharge-upgrades , 18
July 2014)
2.Related Legislation :
AB 1505 (Pan, Ch. 397, Stats. 2012) pertains to LGBT
individuals, who served in the U.S. Armed Forces, but received
a discharge under the DADT policy, which rendered them
ineligible to receive federal veteran benefits. This bill:
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- Provides that -- if the federal government acts to
reinstate federal veterans' benefits to those individuals
- then the State of California also shall reinstate any
state-offered benefits to them.
- Requires CalVet to provide Internet resources,
Internet links, and print materials regarding legal
service organizations that specialize in military
discharge upgrades.
SJR 9 (Kehoe, Res. Ch. 29, Stats. 2010 ) urged the President
and the Congress to adopt then-pending legislation to end the
federal military policy of DADT. This bill was the third and
last in a series of similar resolutions by Sen. Kehoe, which
included SJR 6 (Res. Ch. 63, 2007) and SJR 11 (Res. Ch. 108,
Stats. 2005).
POSITIONS
Sponsor: Author
Support: California Democratic Party, Veterans Caucus
Oppose: None on file
Analysis by: Wade Cooper Teasdale
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