October 14, 2021

Takano, HVAC Members Voice Support for VA Review of Discharges for LGBTQ+ Veterans

Committee leaders applaud VA’s directive & urge further legislative action

Press Contact

Jenni Geurink (202-819-4684) 

 

WASHINGTON, D.C—House Committee on Veterans’ Affairs Chairman Mark Takano (D-Calif.) led several Committee Members in a public comment on the new proposed Department of Veterans Affairs (VA) rule to Update and Clarify Regulatory Bars to Benefits Based on Character of Discharge. This proposed rule will take important steps to ensure veterans—including the thousands of LGBTQ+ veterans who were discharged during Don’t Ask, Don’t Tell—can finally access the care and benefits they’ve earned. Subcommittee on Oversight and Investigations Chair Chris Pappas (D-N.H.), Subcommittee on Health Chairwoman Julia Brownley (D-Calif.) and HVAC Members Rep. Lauren Underwood (D-Ill.) and Rep. Colin Allred (D-Tex.) joined the public comment.

 

In addition to this proposed rule, VA issued a directive on the tenth anniversary of the repeal of Don’t Ask, Don’t Tellthat would establish a pre-decisional second review of any proposed character of discharge determination denials moving forward. At the Subcommittee On Oversight And Investigations Legislative Hearing last month, Membersdiscussed Chairman Takano’s Commission On LGBTQ Servicemembers And Veterans Act and Chair Pappas’ Securing The Rights Our Veterans Have Earned Or SERVE Act, which would build equity for LGBTQ+ veterans and enshrine VA’s directive into law. 

 

“All veterans, no matter their race, gender, sexual orientation, age, or other status, should receive the high-quality care and benefits earned during military service,” the Members wrote in their comment. “For example, veterans of color are more likely to experience involvement with the military justice system and face disciplinary actions. They are investigated more often and punished with more severity, and therefore more likely to receive an “other than honorable” discharge. When we have identified discrimination, we must take swift action to root it out and make whole those who have been wronged. That is why we voice our support for Secretary McDonough’s directive of September 17, 2021, to provide VA healthcare and benefits to veterans with “other than honorable” discharges due to sexual orientation, gender identity, or HIV status. This directive will help these veterans access vitally needed medical services, disability compensation, mental health services, and other benefits they have been deprived of, despite having fully earned them through dedicated service in the uniformed forces. ”

 

The Members continued, “We recognize that more permanent solutions are also needed to ensure LGBTQ+ veterans are not whipsawed by policy reversals due to a future change in VA administration. We, therefore, are pursuing a change of statute through the Securing the Rights our Veterans Earned (SERVE) Act (H.R. 5170), which will permanently extend eligibility for VA services and benefits to those who were discharged due to their sexual orientation and gender identity, including under “Don’t Ask, Don’t Tell” policy. Further, to have a more complete understanding of the history and continuing impacts discrimination against LGBTQ+ members of the military, we support a commission to study long-standing inequities for LGBTQ+ servicemembers and veterans. ” 

 

A copy of the Members’ public comment can be found HERE and below. 

 

The Honorable Denis McDonough

Secretary

U.S. Department of Veterans Affairs

810 Vermont Ave. NW

Washington, DC 20420

 

Re: Request for information for Department of Veterans Affairs 38 CFR Part 3 RIN 2900–AQ95 Update and Clarify Regulatory Bars to Benefits Based on Character of Discharge.

 

Dear Mr. Secretary:

 

The following comments are submitted regarding the Department of Veterans Affairs (VA) proposed rulemaking to update and clarify regulatory bars to benefits based on character of discharge. Specifically, VA proposes to modify the regulatory framework for discharges considered ‘‘dishonorable’’ for VA benefit eligibility purposes and proposes to extend a ‘‘compelling circumstances’’ exception to certain regulatory bars to benefits in order to ensure fair character of discharge determinations in light of all pertinent factors.

 

All veterans, no matter their race, gender, sexual orientation, age, or other status, should receive the high-quality care and benefits earned during military service. For example, veterans of color are more likely to experience involvement with the military justice system and face disciplinary actions. They are investigated more often and punished with more severity, and therefore more likely to receive an “other than honorable” discharge.

 

Frustratingly, many veterans are still denied vital benefits and services due to effects of long defunct laws and rules. Although the tenth anniversary of the repeal of the “Don’t Ask, Don’t Tell” policy recently occurred, this unfair policy created barriers to benefits that still endure today for thousands of veterans with “other than honorable” discharges due to their sexual orientation or gender identity. Members of the LGBTQ+ community in the uniformed forces have been subject to myriad of discriminatory practices and policies. While in uniform, LGBTQ+ servicemembers faced the threat of humiliation, forcible discharge from service, and even violence or imprisonment for being who they were. We cannot make up for the suffering these veterans have experienced, but it is long past time for the country to provide every benefit these patriots deserve.

 

When we have identified discrimination, we must take swift action to root it out and make whole those who have been wronged. That is why we voice our support for Secretary McDonough’s directive of September 17, 2021, to provide VA healthcare and benefits to veterans with “other than honorable” discharges due to sexual orientation, gender identity, or HIV status. This directive will help these veterans access vitally needed medical services, disability compensation, mental health services, and other benefits they have been deprived of, despite having fully earned them through dedicated service in the uniformed forces. 

 

We support VA’s proposed rulemaking to extend a ‘‘compelling circumstances’’ exception to certain regulatory bars to benefits to ensure fair character of discharge determinations in light of all pertinent factors. Exposure to combat as well as traumatic events are correlated with increased incidents of depression, substance use disorder, anxiety, and post-traumatic stress disorder (PTSD). Due to stigma or fears of losing their position, access to a security clearance, or being discharged, servicemembers do not seek treatment for mental health issues, and these psychiatric problems can result in actions leading to “other than honorable” discharges.

 

VA should employ additional terms for this category of discharge, such as ‘Military Sexual Trauma, and include language reminding adjudicators to look beyond service records to corroborate the account of an in-service personal assault, as provided in 38 CFR 3.304(f)(5). We urge VA to consider the totality of the circumstances, in addition to the number of incidents, when determining misconduct to be willful and persistent. These changes should apply appropriately for not only sexual orientation, but other discharge circumstances, as well.

 

We recognize that more permanent solutions are also needed to ensure LGBTQ+ veterans are not whipsawed by policy reversals due to a future change in VA administration. We, therefore, are pursuing a change of statute through the Securing the Rights our Veterans Earned (SERVE) Act (H.R. 5170), which will permanently extend eligibility for VA services and benefits to those who were discharged due to their sexual orientation and gender identity, including under “Don’t Ask, Don’t Tell” policy.  

 

Further, to have a more complete understanding of the history and continuing impacts discrimination against LGBTQ+ members of the military, we support a commission to study long-standing inequities for LGBTQ+ servicemembers and veterans.  H.R. 1596 would establish such a Commission to identify and compile information about the history of military policy regarding LGBTQ+ sexual orientation and gender identity, hold public hearings, identify impacts of the discriminatory policies on servicemembers, and make recommendations to remediate those effects. 

 

As noted in Secretary McDonough’s directive of September 17, 2021, we are encouraged by VA's efforts to conduct a pre-decisional second review of any proposed character of discharge determination denials moving forward. Once VA completes its review of comments from the request for information and rulemaking process, it is our hope that the new regulations will allow for a more streamlined and fair approach to decision-making on character of discharge determinations and further bolster the efforts to improve the accuracy of these decisions. Additionally, VA must develop a strong, targeted outreach strategy to encourage impacted veterans to apply or reapply for benefits at the VA.

 

Veterans who swore to protect and defend this country held up their promises. Congress and VA must now do the same. We should not deny any veteran their right to earned services.

 

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