Lambda Legal - Now that "Don't Ask, don't Tell" is Gone, What's Next?
Dear Ask Lambda Legal,
I’m a former U.S. service member who was discharged under “Don’t Ask, Don’t Tell.” Now that the law has been repealed, can I re-enlist? What can I do about my discharge status?
First, I’d like to thank you for your service to the United States – all of us feel immense gratitude for your bravery and commitment.
On Sept. 20, 2011, the discriminatory law known as “Don’t Ask, Don’t Tell” (DADT) was repealed, and, as a result, lesbian, gay, and bisexual service members can now be open about their sexual orientation, if they so choose, without fear of discharge. However, the repeal will not automatically reinstate the estimated 14,500 service members who were discharged under DADT— like you — nor the tens of thousands more who were discharged under the discriminatory policies that preceded DADT.
Although the majority of those discharged under DADT received honorable discharges, hundreds of others did not. Less than honorable discharges can have lasting impact, such as limiting access to GI Bill protections and benefits or Veterans Administration health care. In addition, veterans often must submit their discharge paperwork when applying for jobs outside the military, and the problem of “bad paper” can harm employment prospects.
Discharge documents can “out” someone to potential employers, and if the paperwork indicates less than honorable circumstances, employers may conclude that the person had engaged in misconduct. If you did not receive an honorable discharge, but should have, you may now be eligible to upgrade your discharge, depending on your individual circumstances.
Regarding your interest in re-enlistment, prior service members discharged under DADT are evaluated according to the same criteria as other service members seeking re-entry, without regard to their sexual orientation.
This is especially important for female and minority service members, who were disproportionately discharged under DADT. For example, in 2008, non-white service members represented 29.4 percent of the total military population, but 45 percent of all DADT discharges, and women made up 15 percent of the armed forces but 34 percent of discharges (sources: www.palmcenter.org, www.servicemembersunited.org).
Finally, it’s important to remember that the repeal of DADT falls short of protecting everyone in the LGBT community and those living with HIV. The medical regulatory ban is still in place for aspiring or current service members who are transgender. The Defense of Marriage Act, or DOMA, prevents the military from providing spousal benefits to same-sex partners, even if you were married in a state that has marriage equality laws. People living with HIV are still prohibited from enlisting in the armed forces, and those already enlisted who test positive face assignment limitations.
As far as we’ve come, there’s still much work that remains.
Peter Renn is a staff attorney in the Western Regional Office of Lambda Legal, which works toward achieving the civil rights of members of the LGBT community and people with HIV. If you have any questions or need legal information, contact Lambda Legal’s Help Desk at www.lambdalegal.org/help.