Via GBH News
By Craig LeMoult

Between World War II and the 2011 repeal of the policy that banned openly LGBTQ+ people from serving in the U.S. military, it is estimated that over 100,000 service members were discharged because of their sexual orientation or gender identity. Those less-than-honorable discharges left those veterans without access to a wide range of benefits.

In 2021, on the 10th anniversary of the repeal of the policy known as “Don’t Ask, Don’t Tell,” President Joe Biden directed the U.S. Department of Veterans Affairs to start providing benefits to veterans who received other-than-honorable discharges based solely on their sexual orientation. Yet, two years later, many LGBTQ+ veterans still encounter a daunting process to get those benefits and upgrade their discharge statuses.

Annabel Reyes, a veteran living in central Massachusetts, knows how difficult the process is. In 2009, she was serving in the U.S. Navy as an electrician’s mate aboard the USS Bataan. Reyes kept her sexual orientation a secret on board, she said, because “Don’t Ask, Don’t Tell” was in place at the time. But some on the ship suspected she was gay, and bullied her because of it, she recalled. Those rumors turned into a formal investigation, in which Reyes found herself questioned by superiors.

“I initially denied everything because they weren’t supposed to ask me,” Reyes said. “There was ‘Don’t Ask, Don’t Tell,’ right? So, I felt like I shouldn’t have had to answer the questions.”

But they told her another crew member had informed on her, and Reyes could get in more trouble for lying. So, she decided to answer truthfully. Reyes was kicked out of the Navy with an under-honorable discharge and stripped of any Veterans Affairs benefits.

When she got home, she applied for unemployment.

“And they deny me not because I got discharged, but because of the reason for discharge,” she said. “How are they denying me for being gay as well? Like, this is another insult, another slap in the face. Now how do I get by? Because now I got to ask for food stamps or something just to be able to eat? I got to beg in the streets?”

Today, Reyes runs a printing shop out of her home. She was able to get her discharge upgraded to honorable with the help of a veterans legal clinic at Harvard Law School. But it was a battle.

“You absolutely have to have another person help you,” she said. “Otherwise, they don’t do anything about it. And even then, they go back and forth, because they try to just kind of weasel every little thing out, like a little bit at a time. They don’t want to admit that they’re wrong. They don’t want to help.”

Margaret Kuzma is an attorney at the Harvard clinic that helped Reyes. She said the clinic doesn’t hear from as many veterans about these issues as they’d like.

“Unfortunately, so many just aren’t trying for the upgrade, either because they don’t know that it’s available or just because the process is so arduous,” Kuzma said. “Or they’re trying for it on their own, which should be a no-brainer given the discriminatory policy that kicked them out. But in reality, a lot goes into these cases.”

“This is not these vets’ fault,” said U.S. Rep. Seth Moulton of Massachusetts, who served four tours as a U.S. Marine in Iraq. “It’s not your fault if you were who you were and you got kicked out under a terribly un-American, unjust policy. So to me, the burden should be on the Department of Defense, that had this policy for decades, to have the biggest burden when it comes to correcting it.”

The Department of Defense didn’t immediately respond to questions, but department policy is to grant an upgrade only if the service member’s discharge was based solely on sexual orientation or gender identity, and there were no other aggravating factors, like misconduct.

That’s a significant barrier, said Margaret Kuzma of the Harvard veterans legal clinic.

“There are many, many more service members who were probably discharged for pretextual things that stemmed from bias,” Kuzma said. “So, they were trumped up charges or it was minor misconduct and other people were not being actually discharged for the misconduct. But because they were being discriminated against, they were then kicked out.”

Even if a veteran can’t get their discharge upgraded, they can still get benefits if they successfully appeal to the VA.

In March, Moulton sent a letter to the secretary of Veterans Affairs, asking how many discharged LGBTQ+ veterans had applied for and received benefits since the Biden administration’s policy clarification. The VA’s response, which came last week, said the data doesn’t allow them to distinguish cases involving LGBTQ+ veterans.

“Although they do have broad data and information about these types of applications, they don’t track them by sexual orientation or gender identity,” said Peter Perkowski, legal and policy director for Minority Veterans of America. “So, there’s no way to know whether their policy clarification actually did help anybody.”

In a written statement, a spokesperson for the VA said most veterans with other than honorable discharges who reach out to the VA do get benefits. The statement said the VA is making an effort to get more to apply.

But some LGBTQ+ veterans can’t get VA benefits because they were discharged before they were able to serve the two years required to earn those benefits

“Congress needs to change the statutes that are excluding LGBTQ veterans from being eligible for VA benefits, including the one that requires a full 24 months of service, for example,” Perkowski said.

A spokesperson for U.S. Rep. Chris Pappas of New Hampshire says he plans to reintroduce legislation called the SERVE Act that would address some of those issues. It will be the third time the bill is introduced.

Annabel Reyes says she’s still traumatized by the experience of being kicked out of the Navy, just for telling the truth about who she is. She said more needs to be done to restore the honor that was taken from veterans like her.

“All of us, we are owed something,” she said. “Because this was an abuse that happened to us from our own leaders.”

Those leaders, she said, let down LGBTQ+ veterans who were willing to risk their own lives for their country.

Filed in: In the News, Legal & Policy Work

Tags: Veterans Law and Disability Benefits Clinic

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