President Joe Biden announced on Wednesday that troops who were convicted under an old military policy criminalizing consensual gay sex would receive full pardons. This move could restore their discharges from military service to an honorable status and pave the way for benefits.
Potentially thousands of veterans are affected, but many questions remain about the policy that the Pentagon and Department of Veterans Affairs must work through. Bad discharges cost service members years of benefits for home loans, educational benefits, and medical care. It is unclear whether the government will find a way to compensate for those costs or how it might set benefits from this point forward.
Policy Changes and Application Process
In December 2013, Congress removed a provision from the Uniform Code of Military Justice that had criminalized sodomy between two consenting adults. The provision, under Article 125, had been in place since 1951 and resulted in the convictions and discharges of an estimated 2,000 service members. Rachel Branaman, a spokeswoman for the Modern Military Association of America, an advocacy organization for LGBTQ+ service members, veterans, and their families, indicated that the total numbers affected, including those targeted due to sexual orientation but discharged for other issues, could be much higher. Despite the decriminalization in 2013, service members prosecuted under Article 125 before then were still facing the repercussions of having those military convictions on their records.
Service members discharged due to an Article 125 violation prior to 2013 can apply for the pardon. The Pentagon launched a webpage on Wednesday with links to apply and instructions on how to pursue each case. Exceptions to Biden’s proclamation include cases where the consensual act occurred during an adulterous relationship with another service member’s spouse or where a power imbalance put into question whether the act was consensual, such as between a recruiter and a potential recruit.
Restoring Benefits and Challenges Ahead
While Biden’s proclamation technically pardoned all people covered by its terms, former service members still have to have their records verified by the military branch they served in. This verification is necessary to get proof from the Justice Department’s Office of the Pardon Attorney that they were pardoned. The pardon does not mean the conviction will be removed from the person’s record; both the conviction and pardon will show. A further step to have the record expunged would need to be pursued in the courts.
The affected veteran also needs to apply separately to their military branch to correct military records, including an upgrade or correction of a discharge. Branaman mentioned that while this was a positive step, it puts the burden on veterans to remove a conviction they should not have faced. She added that the administration needs to find a way to streamline the process.
The convictions have had potentially life-altering repercussions. Those former service members did not have access to Veterans Affairs benefits, including a pathway to home loans, which could have cost them the ability to create generational wealth or attend school. On a call with reporters Tuesday, two Biden senior administration officials could not answer whether the pardons could result in back pay or restitution for those affected.
Rachel Branaman summarized the situation: “We don’t know what will be retroactive.”