SLDN remains committed to providing quality legal services and assistance to LGB veterans affected by DADT or the prior policy.
Changing DD-214s or other discharge paperwork
Service members who were discharged because of DADT or the prior policies regarding gays and lesbians in the armed forces might want to have certain changes made in the discharge paperwork.
Upgrading discharge characterizations
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 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. SLDN is preparing upgrade applications for these former service members, and we are committed to assisting every former service member who needs their discharge upgraded.
Changing RE codes and Narrative Reasons for Discharge
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, 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.”
It is unclear at this point what, if anything, will replace the narrative reason and re-entry code.
SLDN is committed to assisting those who would like to change their discharge paperwork. If you were affected by DADT or the prior policy and believe that your discharge paperwork could be changed, contact SLDN to speak with an attorney. We can prepare your application and ensure that you have the best chance at having you paperwork changed.
Not an Honorable Discharge?
Some gay service members were inappropriately denied “Honorable” discharges even when they deserved them based on their service record. If you think you were entitled to an honorable discharge characterization but it was denied under DADT or the prior ban, contact SLDN. We can discuss the process for changing your paperwork and prepare your application for an upgrade.
Back pay, reparations, lawsuits and other redress of grievances
The Defense Department has said that there will be no reparations or other compensation for those who were discharged under DADT. This includes credit for the time former service members would have served or other monetary and non-monetary damages. Please contact SLDN for more information about your options.
Re-accession and re-instatement
Many of those discharged under DADT want to rejoin the service now that DADT has been repealed. The Defense Department has made clear that service members discharged under DADT do not have a right to rejoin. Instead, those wishing to rejoin must apply through a recruiter. DoD has said that the negative re-entry codes will be waived, and that applicants with Honorable discharges will be assessed using the same criteria as other prior service applicants. They will be accepted or not based on the needs of the particular service. For prior service members, there are a variety of potential bars to re-entry, including age limits, fitness standards and cutoffs relating to time out of service. For many, this may mean that they do not meet the criteria for rejoining. SLDN will continue to advocate that the regulations for re-entry be as accommodating as possible to those discharged under DADT while still ensuring that the needs of the services are accounted for.
Others discharged under DADT want to return to their specific jobs in their former unit. In other words, they want to pick back up right where they left off when they were discharged. It is highly unlikely that rejoining service members will be reinstated exactly to their former position through the standard reentry process described above. For those rejoining members, a federal lawsuit may be the only way to get back to the exact place they were in before their DADT discharge. The primary limitation to filing a lawsuit is the six-year statute of limitations, which prevents anyone who was discharged more than six years ago from filing a lawsuit related to their discharge. In December 2010, SLDN and Morrison and Forrester filed Almy et al v. United States Dep’t of Defense on behalf of three former service members who are seeking reinstatement. The case is currently in active litigation.