May 21, 2018
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New issues arise with end of ‘Don’t ask, Don’t tell

By Ed O'Keefe, The Washington Post

WASHINGTON – The military dismissed Marquell Smith in 2006 for violating its “don’t ask, don’t tell” policy, giving him a less-than-honorable discharge that made the former Marine ineligible for a veteran’s hiring preference used by federal agencies where he hoped to work.

After more than three years of appeals, the Defense Department reversed course and gave him an honorable discharge. In the interim, “There was a little bit of reluctance by employers to hire me, I think, especially since they couldn’t give me veteran’s preference,” Smith said. “You miss out on opportunities.”

Worse, “I was confronted by potential employers asking why I was out of the military,” he said. “I had to come out and tell them that I was discharged under ‘don’t ask, don’t tell.’ It creates an awkward conversation.”

Smith, 30, is back in school and plans to apply for new jobs when he graduates, or maybe reenlist in the military. Troops discharged for violating the gay ban may reenlist once President Barack Obama and military leaders officially end the ban – likely later this year, as the president recently promised. (About 13,000 troops have been discharged for violating “don’t ask, don’t tell.”)

But Smith’s experience symbolizes the types of issues current and former troops who are gay are likely to confront even after the ban ends. Gay rights leaders said they are preparing for several more years of work to ensure gay troops and those kicked out for violating the ban earn the same rights and protections afforded to straight colleagues.

Groups who led last year’s campaign to repeal “don’t ask, don’t tell” now want Obama to sign an executive order extending nondiscriminatory protections to gay troops. They’re also pushing the Pentagon to eventually extend housing and health-care benefits to the same-sex partners of openly gay service members and hope the military will make it easier for discharged troops like Smith to earn a job by removing any mention of homosexuality from discharge papers.

So far, the White House and Pentagon aren’t budging.

White House aides would not say whether Obama plans to issue any orders extending nondiscriminatory protections to gay and lesbian troops, pointing instead to Pentagon policies set to take effect once the ban is lifted. The new language will state that all troops are “entitled to an environment free from personal, social, or institutional barriers” preventing promotion and that “harassment or abuse based on sexual orientation is unacceptable.”

“The release of the policy guidance is an important step toward implementing repeal of ‘don’t ask, don’t tell,’ ” White House spokesman Shin Inouye said. “As the president said in his State of the Union address, DADT will be fully repealed this year.”

But activists like Richard Socarides say the lack of a presidential executive order means gay troops would have fewer legal protections than civilians working for the Defense Department and other federal agencies.

“If you work at the Agriculture Department as a clerk, you have better protections than somebody in the military,” said Socarides, a former gay rights adviser to Bill Clinton and director of Equality Matters. “They ought to be the same.”

A presidential executive order brings with it the weight of the Oval Office, activists say. Much like Harry Truman used an executive order to begin the full integration of black troops, gay rights activists want Obama to issue similar orders protecting gay and lesbian troops from discrimination in the ranks. They note that Clinton and Obama issued executive orders and memos extending nondiscriminatory protections and benefits to gay and lesbian federal employees and their same-sex spouses.

“This last final step is not a small matter,” Socarides added. “It’s crucial that gay military personnel have legally enforceable protections which are lasting over time.”

Obama, who vowed to end “don’t ask, don’t tell” during his presidential campaign, demanded that Congress lift the ban through legislation because lawmakers had enacted it with legislation. He could have ordered the military to stop enforcing the policy, or to use it in more limited circumstances, but White House aides last year cautioned that future presidents could reverse Obama’s orders by using the same presidential powers.

As for pay and benefits, the federal Defense of Marriage Act bars the Pentagon from extending full health-care and housing access to same-sex partners, but civilian federal agencies now provide relocation pay, access to day care centers and gyms, and permit paid leave for gay workers caring for ill partners, among other benefits.

Pentagon officials plan to identify similar benefits, and should do so quickly, according to Aubrey Sarvis, executive director of Servicemembers Legal Defense Network (SLDN).

“I think some at the Pentagon are going to be very uncomfortable when they have to face the realities of pay and benefits, because some will be treated differently based on their sexual orientation,” he said. “In this post-repeal world, we’ve moved beyond someone being fired for their sexual orientation, but we’re bumping up against the reality that they’ll receive different pay and benefits.”

Among the difficult challenges in a “post-repeal world” is a push to get the Pentagon to erase any mention of homosexual conduct from the records of the 13,000 troops discharged for violating the ban.

SLDN, which provides legal services to troops affected by the ban, is pushing Defense Secretary Robert Gates to establish special boards that would review the discharges and at least grant an honorable discharge to those who didn’t receive it.

“This is going to be a continual process over years of kind of changing the mentality,” said Fred Sainz, vice president of the Human Rights Campaign. “I think that as frustrating as it is for many, we got as good as we were going to get, and people who are realistic about these things understand that. Over the course of the next few years, we’ll work on this cycle of continuous improvement.”

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