Biden to Pardon Veterans Convicted for Gay Sex
A long overdue move.
CNN (“Biden expected to pardon veterans convicted under military law banning gay sex, officials say“):
President Joe Biden is expected to pardon US veterans who were convicted by the military over a 60-year period under a military law that banned gay sex, three US officials told CNN.
The pardon proclamation is expected to be announced on Wednesday and one official said it is set to affect roughly 2,000 people. The granting of pardons won’t automatically change convicted veterans’ records but allows those impacted to apply for a certificate of pardon that will help them receive withheld benefits.
The pardon, which CNN is first to report on, specifically grants clemency to service members who were convicted under former Uniform Code of Military Justice Article 125 — which criminalized sodomy, including between consenting adults — between 1951 and 2013 when it was rewritten by Congress. It also applies to those who were convicted of attempting to commit those offenses.
Anyone who was convicted of a non-consensual act such as rape will not be pardoned.
Given that the law was changed 11 years ago—on a bipartisan basis, no less—I’m surprised this is just now happening. Barack Obama was President for almost a full term and Joe Biden has almost finished his first; why the holdup?
Beyond that, given how much time has elapsed, why not issue pardon certificates and upgrade the discharges of the “roughly 2000 people” impacted by this rather than putting the onus on them?
This, though, is more complicated:
Separately, the law known as “Don’t Ask, Don’t Tell” was repealed by Congress in 2011, but not before thousands of service members had been discharged from the military.
A service member’s discharge status can determine what kind of Veterans Affairs benefits they are eligible for. A bad-conduct discharge, for example, given under general court-martial, can make someone ineligible for services including a VA home loan military pension, and education benefits.
The pardon is separate from the Pentagon’s ongoing review of military records for those who were discharged based on their sexual orientation, which one of the officials said did not apply to convictions under the UCMJ. The Pentagon launched a new outreach campaign last September to reach more veterans who believe they “suffered an error or injustice” to have their military records reviewed.
“For decades, our LGBTQ+ service members were forced to hide or were prevented from serving altogether,” Defense Secretary Lloyd Austin said at the time. “Even still, they selflessly put themselves in harm’s way for the good of our country and the American people.”
In order to get their records changed under the pardon, individuals will need to complete an online application, which will go to their military service department. The services will then review the individual’s court-martial and service record and determine if they are eligible for the pardon; that determination will then be sent to the attorney general, acting through the Department of Justice’s pardon attorney, a US official explained.
The certificate of pardon does not automatically change someone’s discharge status. If a certificate of pardon is issued, the service member will then have to apply to their respective military department’s board of corrections to have their military records corrected.
During most of the period in question, LGBTQ individuals had to actively lie to serve. My interviews as a new second lieutenant to get cleared for Top Secret/Sensitive Compartmented Information access back in 1988 asked an absurd number of variants of questions about sexual orientation. The thinking, as I understand it, was that there was serious potential for adversaries to use homosexuality or gay sex as a tool of blackmail.
Bill Clinton had promised during the 1992 campaign that he would end the bar on gays and lesbians serving in the military but, when he tried to do so, he received enormous backlash from the military brass and, more importantly, Congress. The resultant compromise, DADT, had the perverse effect of allowing gays and lesbians to serve so long as they gave no indication whatsoever that they were gays and lesbians.*
While the silly questions were removed from recruiting and clearance processes, the law still banned those who “demonstrate a propensity or intent to engage in homosexual acts” from serving because their presence “would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.” This was arguably worse than the previous policy, in that people were simultaneously able to join because of the “don’t ask” but were constantly in fear of being outed.
Secretary of Defense Austin launched an initiative last year to comb through the records of those discharged during the DADT period for homosexual conduct.
On Sept. 20, 2023, DOD announced it will proactively review military records of veterans whose military records indicate their administrative separation was the result of their sexual orientation and who received a less than honorable conditions discharge.
The department has identified the records of former service members eligible for the proactive review and the military departments are in the process of reviewing those records to assess whether changes — including an upgrade in discharge characterization — are warranted. DOD anticipates providing more substantive updates this fall.
I haven’t seen any follow-up but this strikes me as the right thing to do. So long as there weren’t aggravating factors, those who were discharged solely for their homosexuality should have their discharges upgraded to allow the receipt of veterans benefits (Honorable or General Under Honorable Conditions, depending on length of service). While they were knowingly acting in violation of federal law, DADT was essentially entrapment.
Those discharged for homosexual acts prior to DADT are in a different category, though, in that they actively lied on their clearance interviews. My instinct is that, since we now understand the very questions to be outrageous, we should upgrade their status as well. But, perversely, because of existing mores, the threat of blackmail was real.
*My recollection of the conversations in those days was that it focused exclusively on those two groups. We obviously knew about bisexuality, but those folks were typically just considered “gay” or “lesbian” for these purposes. Similarly, while trans individuals have certainly served since the beginning of the Republic, they were just not on the radar screen in these discussions.
Intersectionality, of sorts, would be the main reason that the onus is on the veteran themselves to apply for a status change.
I can imagine several scenarios:
1) The veteran’s CO learned that the veteran was gay, then made something else up to get rid of them.
2) The gay veteran also had legitimate transgressions, and being gay was incidental to the dishonorable discharge.
3) The gay veteran was isolated and ostracized by their CO or by their fellow service members and this can be shown to have caused performance problems.
I’m sure there are dozens of other scenarios that would require some investigation, rather than being a strictly binary decision about restoring benefits.
@Tony W: That’s certainly right for those discharged with the status of being gay or lesbian. But discharges for gay sex should be pretty cut and dried.
I suspect that many people who said they weren’t gay were trying their hardest to believe it. Saying they actively lied seems like a basic misunderstanding of what it’s like to be gay in a very homophobic society.
@Modulo Myself: That’s fair enough, at least as far as enlistment packages go. For the Top Secret investigation, the number of variants of the question was absurd, trying to suss out mere “impure thoughts” and the mere possibility that you would contemplate homosexual acts. I don’t think many folks reach 18 and not know the answer to those questions.
@James Joyner:
I’m sure there were huge numbers of lies to that type of question from every type of person. This is the pure pathology of straightness–like that Seinfeld episode where George is worried that he might have been aroused by a man giving him a massage.
@James Joyner: um….can I point you towards the prime example of Mr. Rod Dreher, who has managed to make it into his late 50s without admitting that he’s attracted to men?
@Grumpy Realist:
Dreher is a prime example that denial isn’t a river in Egypt.
Good job, Joe.