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Discharged servicemen win discriminatory military severance pay case

Timothy Kincaid

January 7th, 2013

In 1993, the Don’t Ask, Don’t Tell policy went into effect. And while in some ways this policy was worse than the one it replaced, there were some ways in which it was an improvement. Under DADT, expulsion for homosexuality was generally processed as an honorable discharge, a rather important distinction for future employers, veterans benefits, and the morale of the soldier.

However, the Defense Department did not treat such discharges equally. While other servicemen and women who had been in the military for more than six years were entitled to a separation pay, those who were discharged under DADT had their separation pay cut in half. (Roughly dropping a $25,000 payment to $12,500).

In November 2009, the ACLU and the Servicemembers Legal Defense Network contacted the Defense Department requesting that this discriminatory policy be reversed. They were denied. They sued.

On September 9, 2010, Log Cabin prevailed in their lawsuit against the government and in December 2010, Congress overturned the discriminatory policy. On September 20, 2011, the joint Chiefs of Staff certified that Don’t Ask, Don’t Tell was officially removed as military policy.

However, two days later, the Defense Department was in court asking that the ACLU lawsuit be tossed out. Their argument was that the Secretary of Defense has sole discretion over its rules on separation pay.

This position is baffling. Besides the issue of fairness, the money was minuscule, not even a blip in the overall defense budget. And it seems contrary to the administration’s views.

Judge Christine Odell Cook Miller (appointed by Reagan, reappointed by Clinton) did not seem much impressed with the DoD’s argument.

Your timing is exquisite – two days after the policy goes into effect eliminating ‘don’t ask, don’t tell,’ here we are.

So perhaps todays ruling is no surprise. (Windy City)

Former service members who are part of a class action lawsuit challenging a Defense Department policy that cuts in half the separation pay of those who have been honorably discharged for “homosexuality” will receive their full pay after a settlement announced today.

However, full justice has not been achieved.

The settlement covers service members who were discharged on or after November 10, 2004, which is as far back as the settlement could extend under the applicable statute of limitations.

This provides, I believe, an opportunity for the administration’s proposed Secretary of Defense to illustrate whether he, indeed, has changed views on gay and lesbian servicemen. As the Secretary of Defense has sole discretion, Chuck Hagel can – if confirmed – choose to extend the pay back for all who were subjected to unfair discrimination and not limit recovery solely to those who are covered by the lawsuit. I hope he illustrates his goodwill and announces his intention to honor those discharged before that date.



Edwin in Colorado
January 7th, 2013 | LINK

I wouldn’t hold my breath on him doing that. He already has a bad reputation as far as gay people are concerned.

Jim Burroway
January 7th, 2013 | LINK

Hagel wouldn’t have “sole discretion,” as you say. There is the small matter of Hagel’s boss. And Congressional funding. Good luck with that.

Timothy Kincaid
January 8th, 2013 | LINK

The argument made by the Department of Defense was that the Secretary had sole discretion. But, of course, his boss could override such a decision and declare that those discharged under DADT prior to the statute date are SOL.

Which, come to think of it is what they said in court.

And as for Congressional funding… These paltry funds are more than covered in whatever discretionary service employer compensation budget is provided. We’re not talking huge sums of money.

I don’t think Hagel HAS to extend the date, simply that it is the moral thing to do and would illustrate his new-found support. It’s the sort of thing that a person who truly sees this as injustice would do (and frankly I’m shocked at Panetta – he was my Congressman many years ago and I’ve always had a favorable impression).

But perhaps something else would serve Hagel’s purpose better – maybe he could issue another statement.

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