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Gay service members to receive full severance pay

Defense Secretary Leon Panetta (Blade photo by Michael Key)

Defense Secretary Leon Panetta (Blade photo by Michael Key)

A federal court on Monday approved a settlement that will allow gay service members discharged because of their homosexuality to receive full severance pay.

The American Civil Liberties Union said that it reached the roughly $2.4 million agreement on behalf of more than 180 service members who signed onto a class action lawsuit who received only 50 percent of their separation pay when the military discharged them. This policy took effect in 1991, two years before “Don’t Ask, Don’t Tell” took effect.

The settlement the ACLU reached with the Pentagon only applies to those discharged before Nov. 10, 2004, because of the statute of limitations.

“It makes no sense to continue to penalize service members who were discharged under a discriminatory statute that has already been repealed,” Joshua Block, staff attorney for the ACLU Lesbian Gay Bisexual Transgender Project, said. “The amount of the pay owed to these veterans is small by military standards, but is hugely significant in acknowledging their service to their country.”

The ACLU in 2010 challenged the policy on behalf of former Air Force Staff Sgt. Richard Collins who was discharged under “Don’t Ask, Don’t Tell” in 2006 after a co-worker at Cannon Air Force Base in New Mexico saw him kiss his boyfriend in their car while they were off-base.

“This means so much to those of us who dedicated ourselves to the military, only to be forced out against our will for being who we are,” Collins said. “We gave all we had to our country, and just wanted the same dignity and respect for our service as any other veterans.”

“There was absolutely no need to subject these service members to a double dose of discrimination by removing them from the armed forces in the first place, and then denying them this small benefit to ease the transition to civilian life,” Laura Schauer Ives, managing attorney for the ACLU of New Mexico, added. “This decision represents a long-delayed justice to these veterans.”

The ACLU announced the settlement hours after President Obama nominated former Nebraska Sen. Chuck Hagel to succeed Defense Secretary Leon Panetta — his selection sparked controversy among some advocates who have criticized him for his anti-LGBT voting record on Capitol Hill and for describing James Hormel as “openly, aggressively gay” during a 1998 newspaper interview about his nomination to become the U.S. ambassador to Luxembourg.

Hagel apologized for his comments.

Former chair of the Joint Chiefs of Staff Adm. Mike Mullen and U.S. Marine Corps Commandant Gen. James Amos are among the military commanders who have said the integration of openly gay men and lesbians into the armed forces has gone smoothly since the repeal of “Don’t Ask, Don’t Tell” became official in September 2011.

Problems, however, remain.

Transgender servicemembers remain unable to openly serve, while the Defense of Marriage Act prohibits the military from providing on-base housing, survivor and other spousal benefits to same-sex partners of gay soldiers.

Servicemembers Legal Defense Network in October 2011 filed a federal lawsuit against DOMA on behalf of Chief Warrant Officer Charlie Morgan, a lesbian guardsman with terminal breast cancer who led the Pledge of Allegiance at New Hampshire Gov. Maggie Hassan’s inauguration on Jan. 3, and other gay service members and veterans. The Southern Poverty Law Center last February filed a lawsuit against the U.S. Department of Veteran Affairs on behalf of a disabled veteran from California whose application for spousal benefits for her wife whom she legally married outside Los Angeles before voters in 2008 approved Proposition 8 that banned nuptials for gays and lesbians.

The U.S. Supreme Court is scheduled to hear oral arguments in cases challenging both Prop 8 and DOMA at the end of March.

The Obama administration announced in February 2011 it would no longer defend DOMA, but House Republicans continue to back it.

08
Jan
2013

DOD faces renewed calls to extend benefits to gay troops

Defense Secretary Leon Panetta is under renewed pressure to extent partner benefits to gay troops (Blade photo by Michael Key)

Defense Secretary Leon Panetta is under renewed pressure to extend partner benefits to gay troops (Blade photo by Michael Key)

The Pentagon is under renewed pressure — now most recently from a California U.S. House member — to allow gay service members to have to certain partner benefits already afforded to straight troops, such as military IDs and access to family programs.

On Thursday, Rep. Adam Schiff (D-Calif.) began circulating a letter among U.S. House members calling on Defense Secretary Leon Panetta to begin instituting the benefits to gay troops in the wake of a New York Times article that profiled several same-sex military couples who faced hardship because of unequal treatment despite “Don’t Ask, Don’t Tell” repeal.

“[A]s a recent article in the New York Times illustrates, the end of DADT has not meant the end of unequal treatment of same sex spouses of U.S. service members, who are denied a wide range of services and benefits – from health insurance to pre-deployment counseling, to access to base commissaries,” the letter states. “As long as they remain in place, these restrictions have the effect of perpetuating discrimination against same sex spouses and their families.”

The U.S. military is prohibited from offering major partner benefits — such as health and pension benefits — to gay troops because of the Defense of Marriage Act and other provisions of the U.S. code that govern rights for U.S. service members. But the Pentagon is still withholding other benefits to gay troops that could be extended administratively at any time under secretarial directive.

The benefits that the letter calls for are military ID cards and registration in the Defense Enrollment Eligibility Reporting System; access to Morale, Welfare, & Recreation programs; and access to other family programs. Other benefits not identified in the letter that the Pentagon could extend are access to legal services, joint duty assignments and military housing.

“Department of Defense current policy is treating same sex service members, their spouses and families as second class citizens,” the letter concludes. “As President Obama stated during his inaugural speech, ‘Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law, for if we are truly created equal, then surely the love we commit to one another must be equal, as well.’”

Eileen Lainez, a Pentagon spokesperson, said Panetta would reply to the letter as appropriate.

“As you are aware, the department is conducting a deliberative and comprehensive review of the possibility of extending eligibility for benefits, when legally permitted, to same-sex domestic partners,” Lainez added. “The benefits are being examined from a policy, fiscal, legal and feasibility perspective. There are benefits currently available to all of our service members, based on their member-designations.”

Others this week who’ve called on Panetta to enact these benefits are the Human Rights Campaign, which issued an action alert calling on Panetta to grant military IDs to the same-sex partners of troops, and the LGBT military group OutServe-SLDN. The calls come in the wake of Panetta’s decision to exercise his authority to lift the ban on women in combat roles.

“After nearly two years of unnecessary and unexplained delay, it’s likewise time for Secretary Panetta to acknowledge and affirm the service and sacrifice of the gay and lesbian military families — who may now serve openly, but are still anything but equal — by immediately extending all benefits within his authority under existing law,” said OutServe-SLDN Executive Director Allyson Robinson.

Defense secretary nominee Chuck Hagel, whom President Obama tapped to replace Panetta upon his departure, is expected to answer questions on issues pertaining LGBT troops during his confirmation hearing set for Jan. 31. In a letter to Sen. Barbara Boxer last week, Hagel already expressed commitment to extending partner benefits to gay troops, saying, “I will do everything possible to the extent permissible under current law to provide equal benefits to the families of all our service members.”

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The full text of the letter that Schiff is circulating among House members follows

Dear Secretary Panetta,

As you prepare to leave the Defense Department, please accept our gratitude for your years of service to the Nation, including your many years as a member of the House of Representatives.

During your tenure, the American military has taken the historic step of stopping discrimination against gay and lesbian service members by ending the policy of Don’t Ask, Don’t Tell (DADT), which allowed homosexuals to serve in the military, provided they did not reveal their sexual orientation. This change has not only made our military a truer reflection of the country it protects, but it has also occurred without any of the disruption that critics had predicted.  Much of that is due to your leadership and the senior leadership of the Armed Services.

However, as a recent article in the New York Times illustrates, the end of DADT has not meant the end of unequal treatment of same sex spouses of U.S. service members, who are denied a wide range of services and benefits – from health insurance to pre-deployment counseling, to access to base commissaries.  As long as they remain in place, these restrictions have the effect of perpetuating discrimination against same sex spouses and their families.

We understand that most of the benefits available to veterans, service members and their families are granted directly by Congress. Well over a hundred of these statutory benefits are contingent on marital status. These benefits will remain unavailable to legally married same-sex couples unless the Defense of Marriage Act (DOMA) is repealed or declared unconstitutional by the Supreme Court this year or individual statutes are modified by Congress. In the meantime, there are several executive actions that you can take to ease the burden and increase the inclusiveness of all of our service members and their families.

We strongly urge you to issue same sex spouses military identification cards and registration in the Defense Enrollment Eligibility Reporting System (DEERS). This is the easiest and simplest step to include same sex partners as part of the Department of Defense family.

We urge you to allow same sex partners access to Morale, Welfare, and Recreation (MWR) programs. Current regulations leave open to Installation Commanders the possibility of opening up limited access to certain MWR programs to guests and the general public. These exceptions would be applied regardless of sexual orientation or individual situations; in other words, a same-sex spouse could receive guest privileges, just as the girlfriend or boyfriend of a straight service member receives at present, and would likely be treated as any non-dependent member of the public.

We also urge you to allow same sex partners access to family programs. DoD uses a flexible definition of “family” for the purpose of implementing Family Centers and programming, but leaves it up to the individual Service Secretaries to determine eligibility. Thus, each branch of the service (and each installation commander) determines the extent to which same-sex spouses and partners have access to these programs, which include deployment support, marriage and family counseling, relocation assistance and financial management.

Department of Defense current policy is treating same sex service members, their spouses and families as second class citizens. As President Obama stated during his inaugural speech, “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law, for if we are truly created equal, then surely the love we commit to one another must be equal, as well.”

We strongly urge you take immediate action to rectify the inequality of benefits available to families of gay or lesbian service members.

24
Jan
2013

White House: Gay troops benefits issue has Obama’s attention

White House, Jay Carney

White House Press Secretary Jay Carney said benefits issue for gay troops ‘has the president’s attention’ (Blade file photo by Michael Key)

White House Press Secretary Jay Carney asserted on Friday that President Obama is considering the issue of outstanding partner benefits that could be extended to gay service members administratively.

Under questioning from the Washington Blade, Carney said Obama is focused on further implementation of “Don’t Ask, Don’t Tell” repeal and “the need to ensure that proper benefits are provided,” but referred further questions to the Pentagon.

“The president is absolutely focused on and aware of the need to further implement DADT [repeal], and to ensure that proper benefits are provided,” Carney said. “You know, for more details, I would point you to the Defense Department, but this is an issue the president is aware of and it has his attention.”

Asked by the Blade whether it was reasonable to conclude the Pentagon needs prodding, Carney replied, “Again, this issue has the president’s attention.”

Since the time “Don’t Ask, Don’t Tell” was lifted in September 2011, Pentagon officials have said they’ve been examining possible partner benefits that are currently withheld from gay troops. However, the Pentagon hasn’t taken any action since that time.

While major ticket items like health and pension benefits are precluded under the Defense of Marriage Act and other federal law governing rights of U.S. service members, LGBT advocates say other benefits could be extended administratively, such as military IDs and joint duty assignments, as well as access to housing and family programs.

The issue has received more attention in the wake of controversy over a spousal club at an Army base in Ft. Bragg, N.C., refusing to offer membership to Ashley Broadway, the spouse of the lesbian service member. Groups like the Human Rights Campaign and OutServe-SLDN have called on the Pentagon to action, as has Rep. Adam Schiff (D-Calif.), who has circulated a letter among U.S. House members calling for the extension of these benefits.

Kevin Nix, a spokesperson for the Human Rights Campaign responded to Carney’s answers saying that the Pentagon can extend partner benefits to gay troops at any time.

“I would just reiterate that the secretary can issue regulations tomorrow  — a simple fix really that’s doesn’t run afoul of DOMA,” Nix said. “All of this country’s servicemembers, their spouses and partners should be treated equally.”

Defense secretary nominee Chuck Hagel, whom President Obama tapped to replace Panetta upon his departure, is expected to answer questions on issues pertaining LGBT troops during his confirmation hearing set for Thursday. In a letter to Sen. Barbara Boxer last week, Hagel already expressed commitment to extending partner benefits to gay troops, saying, “I will do everything possible to the extent permissible under current law to provide equal benefits to the families of all our service members.”

A transcript of the exchange between the Washington Blade and Carney follows:

Washington Blade: Jay, there’s been a lot in the news recently about how service members with same-sex partners aren’t receiving certain benefits that could be extended administratively at any time at the Pentagon. They include military IDs, joint duty assignments and access to certain family programs. Is the President aware of this issue and will he direct the Pentagon to take action on this if they don’t do it on its own?

Jay Carney: I can tell you broadly, I don’t have specifics for you. The president is absolutely focused on and aware of the need to further implement DADT [repeal], and to ensure that proper benefits are provided. You know, for more details, I would point you to the Defense Department, but this is an issue the president is aware of and it has his attention.

Blade: The Pentagon has saying since “Don’t Ask, Don’t Tell” was lifted in September 2011 that they’ve been reviewing this issue, but no action has been taken. Isn’t it reasonable to conclude that they need a little prodding?

Carney: Again, this issue has the president’s attention.

25
Jan
2013

Pentagon to extend partner benefits to gay troops

Defense Secretary Leon Panetta is expected to extend limited partner benefits to gay troops this week (Blade photo by Michael Key)

Defense Secretary Leon Panetta is expected to extend limited partner benefits to gay troops this week. (Blade photo by Michael Key)

The Pentagon is set this week to announce that it will extend long-sought partner benefits to gay and lesbian service members, according to a report in The Washington Post confirmed as accurate by an LGBT advocate familiar with the process.

The Defense Department has reportedly decided to extend these benefits amid media scrutiny and calls from LGBT advocates to make the change before outgoing Defense Secretary Leon Panetta leaves his post.

It’s not immediately clear which benefits that LGBT advocates have been calling for will be extended to gay troops with same-sex partners or when this week the decision will be formally announced. A White House spokesperson deferred comment to the Defense Department, which didn’t immediately respond to a request for comment.

LGBT advocates, including the LGBT military group OutServe-SLDN, have been calling on Panetta to issue via secretarial directive certain partner benefits they say could be extended administratively at any time. Among them are military IDs, joint duty assignments, housing, access to the commissary and availability of family programs and legal services.

Other benefits, such as health and pension benefits, cannot be extended at this time to gay troops because of the Defense of Marriage Act and U.S. law governing rights for service members.

Since the time that “Don’t Ask, Don’t Tell” was lifted in September 2011, Pentagon officials have said they’ve been reviewing the issue to determine which benefits can be extended under current law. However, no action has been taken.

LGBT advocates responded to the news by urging the Pentagon to provide partner benefits to the fullest extent under the law.

Allyson Robinson, executive director of OutServe-SLDN, said Panetta has a “strong civil rights record” during his tenure at the Pentagon and his reluctance to extend these benefits for so long has “baffled many” seeking the benefits.

“We are hopeful that he will not take half-measures here; for him to grant anything less than the full extent of benefits available under current law would be an anticlimactic end to an otherwise exemplary record on civil rights,” Robinson said.

Chad Griffin, president of the Human Rights Campaign, expressed a similar sentiment that the Pentagon should go as far as possible in extending benefits to gay troops.

“We welcome the news that benefits will be extended to the same-sex spouses and partners of gay and lesbian service members, and urge Secretary Panetta to make sure every benefit possible under the law is included,” Griffin said. “This is the logical next step in ensuring all our military families are treated with the dignity and respect they deserve.”

The issue has also received attention on Capitol Hill. Sens. Kirsten Gillibrand (D-N.Y.) and Jeanne Shaheen (D-N.H.), members of the Senate Armed Services Committee, sent a letter to the Pentagon last week calling on Panetta to extend these benefits. A group of 25 House members led by Rep. Adam Schiff (D-Calif.) also signed a letter sent last week calling for enactment of the benefits.

In a statement, Schiff said he’s “encouraged to hear” the Pentagon will finally take action.

“We need to make sure that all military families – including those with same-sex partners serving at home or abroad – have access to the very best care, facilities and services possible,” Schiff said. “In his last days before leaving office, Secretary Panetta can add to his already long list of accomplishments, take up this cause and make sure that the administration acts.”

The issue has received more attention in the wake of a controversy over a spousal club at an Army base in Ft. Bragg, N.C., refusing to offer membership to Ashley Broadway, the spouse of a lesbian service member. At one point, Broadway was informed she was ineligible for membership because she lacked a military ID. The spousal club has since offered Broadway full membership.

05
Feb
2013

Pentagon to offer partner benefits to gay troops

Outgoing Defense Secretary Leon Panetta

Outgoing Defense Secretary Leon Panetta (Blade photo by Michael Key)

The Pentagon announced on Monday that it will start the process of offering limited benefits available under current law to gay troops with same-sex partners.

In a memo dated Feb. 11 to senior Pentagon officials, outgoing Defense Secretary Leon Panetta enumerated the benefits that will be afforded to gay troops — which include military IDs, joint duty assignments and access to the commissary — and set a goal for implementing these benefits by Aug. 31, but no later than Oct. 1.

“Taking care of our service members and honoring the sacrifices of all military families are two core values of this nation,” Panetta said in a statement accompanying the memo. “Extending these benefits is an appropriate next step under current law to ensure that all service members receive equal support for what they do to protect this nation.”

Other benefits that will be afforded are access to morale, welfare and recreation programs; sexual assault counseling; legal assistance; child care; and space-available travel on military aircraft. A full list of the benefits can be found on Attachment 2 of the Panetta memo here.

The memo states the Pentagon will “immediately proceed” with implementing these changes and provide a plan within 60 days.

However, the Pentagon won’t at this time offer certain benefits that LGBT advocates have been seeking under current law, such as access to on-base housing, covering costs for transportation to an overseas post and burial at Arlington National Cemetery.

During a news briefing on Monday, a Pentagon senior official said housing wouldn’t be offered because extending that benefit would be “violating the spirit” of the Defense of Marriage Act, which prohibits federal recognition of same-sex marriage.

Panetta writes in the memorandum that the Pentagon will continue to review these benefits, indicating they haven’t yet been outright rejected.

“With regard to on-base housing, burial and benefits related to command sponsorship overseas, these benefits present complex legal and policy challenges due to their nexus to statutorily-prohibited benefits and due to ongoing reviews about how best to provide scarce resources,” Panetta wrote.

A Pentagon senior legal official at the briefing said the issue of housing was “sensitive” in 2010 as the Defense Department solicited comment among service members for its report on “Don’t Ask, Don’t Tell” because of the sense there isn’t enough housing for service members under current policy already.

“It’s a very sensitive issue because we don’t have enough housing for everybody,” the official said. “The other thing that factors is because it’s sensitive and there is a limited amount, you end up bumping people, and there’s sensitivity behind that. So, the secretary is going to let the working group work through it a little bit longer before they make a final decision.”

Asked who decided that housing shouldn’t be extended at this time, the Pentagon senior official said, “the decision was made by the department, by the department that we would not extend housing at this time.”

Despite the lack of inclusion of some benefits, OutServe-SLDN — which has called for the extension of these benefits since August 2011, before “Don’t Ask, Don’t Tell” was lifted — praised Panetta in a statement and described the move as “substantive.”

“Secretary Panetta’s decision today answers the call President Obama issued in his inaugural address to complete our nation’s journey toward equality, acknowledging the equal service and equal sacrifice of our gay and lesbian service members and their families,” said Allyson Robinson, executive director of OutServe-SLDN.

Shin Inouye, a White House spokesperson, said President Obama “welcomes” the benefits extension at the Pentagon. White House Press Secretary Jay Carney had previously told the Washington Blade the president was aware of the issue.

“The president welcomes the announcement by the Secretary of Defense that the department will extend certain benefits to the same-sex partners and families of service members based on its thorough and deliberate review of this issue,” Inouye said. “This step will strengthen our military and help ensure that all our troops and their families are treated with fairness and equality.”

The move will also be followed by the Coast Guard. In a statement following the news on Monday, Secretary of Homeland Security Janet Napolitano said she directed U.S. Coast Guard Commandant Adm. Robert Papp to implement partner benefits along the lines of the ones enacted in other branches of the military.

“The Department of Homeland Security and the U.S. Coast Guard stand with the Department of Defense on the extension of benefits for military same-sex partners,” Napolitano said. “The extension of benefits for military same-sex partners honors our Department’s guiding principles to treat all service members and applicants equally and with dignity and respect.”

Other benefits, such as health, pension and housing allowances, are precluded from gay service members because of Section 3 of DOMA. Litigation challenging that law, known as Windsor v. United States, is pending before the Supreme Court, and justices are expected to make a decision on the constitutionality of the law before their term ends in June.

Because implementation of these benefits won’t happen until months after the Supreme Court rules on DOMA, a decision from justices striking down the law could shake up which benefits will be afforded at that time.

“In the event that the Defense of Marriage Act is no longer applicable to the Department of Defense, it will be the policy of the Department to construe the words ‘spouse’ and ‘marriage’ without regard to sexual orientation, and married couples, irrespective of sexual orientation, and their dependents, will be granted full military benefits,” Panetta wrote.

The Pentagon senior official maintained the DOMA litigation had no impact on the timing to extend benefits and it was instead based on “what it takes to actually roll out the benefit.”

“Normally, you’re looking at eight months to a year or so,” the official said. “This is a very ambitious schedule. We’re really pressing hard to do this as quick as possible.”

The Pentagon senior legal official clarified the military IDs given to gay troops with same-sex partners or spouses will be different to denote these service members aren’t eligible for certain benefits under DOMA. The card won’t be a different color, although there will be a new code in place — “DP” — in the relationship category.

Gay service members need not be married to their same-sex partner for benefit eligibility. An unmarried same-sex couple can register with the Pentagon for benefits by signing a declaration attesting to the existence of their committed relationship. Benefits also may be available in some cases to the children of same-sex domestic partners.

The Pentagon senior official estimated the new benefits would reach 5,600 active duty troops, 3,400 members of the National Guard and Reserve and 8,000 retired service members. The official also said any cost of these benefits would be negligible on the federal government.

Pentagon officials have said since the time “Don’t Ask, Don’t Tell” was lifted in September 2011 that they’ve been reviewing the benefits issue, but no action has been taken until now. LGBT advocates, speaking on condition of anonymity, have said the military service chiefs objected to issuing these benefits because they believed the move would be seen as political if they were extended before the Supreme Court made a decision on DOMA.

The Pentagon senior legal official declined to comment on the opinion of the service chiefs when asked about any objections they might have had.

“There was a robust internal dialogue about all the issues,” the official said. “At the end of the day, the chiefs rendered their opinion and their advice to the secretary, and he considered it, and decided to do what he’s doing. To answer the question about what was the chiefs’ advice, I’ll defer to the chiefs.”

Beyond benefits, another move that LGBT advocates have been pushing for is an explicit non-discrimination policy for gay service members who feel they’re facing harassment or discrimination. OutServe-SLDN has said Defense Secretary nominee Chuck Hagel upon confirmation “must use his authority to ban discrimination” against LGBT service members.

The Pentagon senior official suggested the Defense Department was disinclined to take this action, saying, “We have not changed our policy at this time.” Asked to clarify if such a move is on the table, the senior official said, “The Pentagon’s position is always to treat all members with dignity and respect regardless of sexual orientation, and that has not changed.”

There will also be exclusion of these benefits for the partners of gay service members who are now deceased. Following the briefing, Pentagon spokesperson Lt. Cmdr. Nate Christiansen confirmed “there will not be grandfathering of benefits” for partners and spouses in this situation. That means Karen Morgan — the spouse of Chief Warrant Officer Charlie Morgan, who died Sunday after fighting DOMA and cancer — won’t be eligible for these benefits.

Chad Griffin, president of the Human Rights Campaign, said the Pentagon took a “historic step” by extending these benefits, but said more work is necessary as long as DOMA is in place.

“It’s time to right this wrong,” Griffin said. “When the Supreme Court considers the constitutionality of DOMA in the coming weeks, they should take note of the real harm this law inflicts every day. The Court should reflect on the sacrifice made by Americans like Staff Sergeant Tracy Johnson, whose wife was killed in action late last year, or the family of Chief Warrant Officer Charlie Morgan, who succumbed to cancer earlier this week. In both cases, DOMA barred specific benefits that could soften the tragic blow of the loss of a loved one.”

11
Feb
2013