Veterans Discharged Under 'Don't Ask, Don't Tell' and Earlier Bans Sue Pentagon to Correct Records

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Rainbow flags are held up in celebration of Pride Month
Rainbow flags are held up in celebration of Pride Month, June 20, 2023. (U.S. Army photo by Angie Thorne)

A group of LGBTQ+ veterans is suing to make the Pentagon automatically upgrade the discharge characterizations of troops kicked out under "Don't Ask, Don't Tell" or similar earlier bans on gay service members – and to remove references to their sexuality in discharge paperwork.

While veterans who were discharged under the policy that banned gay and lesbian troops from serving openly can apply to have their discharges upgraded, the lawsuit argues the application process is "burdensome," "opaque" and violates veterans' constitutional rights.

"Requiring LGBTQ+ veterans to first bear the stigma and discriminatory effects of carrying indicators of sexual orientation on their DD-214s, and then navigate a broken record correction process to seek resolution, violates their constitutional rights to equal protection, informational privacy, property, and due process protected by the Fourteenth and Fifth Amendments to the U.S. Constitution," says the lawsuit, which was filed Tuesday in federal district court in San Francisco.

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"The service of LGBTQ+ veterans deserves respect and honor equal to that of other veterans," the lawsuit adds. "LGBTQ+ veterans are entitled to relief from the Government's ongoing discrimination through the removal of separation narratives and codes that identify their sexual orientation, modification of codes that prevent re-enlistment, and upgrades to their discharge statuses as needed."

The lawsuit asks for the court to require the Defense Department to undertake a comprehensive review of every discharge under "Don't Ask, Don't Tell" and earlier bans, and to make the department systematically upgrade discharges and remove references to sexual orientation from DD-214s.

The lawsuit was filed by legal advocacy groups the Impact Fund and Legal Aid at Work and law firm King & Spalding on behalf of five veterans who were discharged under "Don't Ask, Don't Tell" or predecessor policies: Navy veterans Sherrill Farrell, James Gonzales and Lilly Steffanides; Army veteran Steven Egland; and Marine Corps veteran Jules Sohn.

The lawsuit also seeks class-action status on behalf of all veterans whose DD-214s reference their sexual orientation as a reason for discharge and were given less-than-honorable discharges.

"Don't Ask, Don't Tell" was implemented during the Clinton administration with the intention of being a compromise between a full ban on gay service members and open service, but in practice was effectively a ban on gay troops that resulted in an estimated 14,000 discharges. It was repealed in 2011, but veterans have described lasting harm from the policy more than a decade later.

Estimates vary for how many troops were discharged under both "Don't Ask, Don't Tell" and predecessor bans. But Defense Department data obtained by Legal Aid at Work through a Freedom of Information Act request found that more than 35,000 troops were discharged between 1980 and 2011 because of "real or perceived homosexuality, homosexual conduct, sexual perversion or any other related reason," with more than 29,000 receiving less-than-honorable discharges, according to the lawsuit.

Having a less-than-honorable discharge cuts off access to some Department of Veterans Affairs benefits, including home loans, tuition assistance and health care. For example, one of the plaintiffs, Gonzales, never went to college because he could not afford it without GI Bill benefits and has had to rely on "sporadic" medical care from nonprofits for his HIV because he can't get VA health care, according to the lawsuit.

In 2021, on the 10th anniversary of the repeal of "Don't Ask, Don't Tell," the VA said it would issue new guidance to ensure veterans who were discharged based on sexual orientation, gender identity or HIV status could have full access to benefits. But veterans have said there has been little follow-through on that promise.

In addition to the lack of VA benefits, having DD-214s that reference their sexuality forces veterans to out themselves in any situation in which they might need to prove they are a veteran, such as on a job application, the lawsuit argues. For example, one of the plaintiffs, Egland, chose to forgo a higher salary provided to veterans when he started teaching because his DD-214 identifies his sexual orientation, according to the lawsuit.

"Having an updated DD-214 would bring me so much healing and would restore my own pride in my service to this country," Egland said in a news release on the lawsuit. "I believe every veteran deserves this, regardless of their sexual orientation. Our government and leaders have long acknowledged that the military's discrimination against LGBTQ+ service members -- and what was done to me -- was wrong. The time has come to rectify it by correcting our records."

-- Rebecca Kheel can be reached at rebecca.kheel@military.com. Follow her on Twitter @reporterkheel.

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