Navy Department officials are urging the thousands of sailors and Marines forced out of the military because of their sexuality in previous decades to come forward and appeal their discharge — in a step to restore benefits and right a historical wrong. told to pack up and go home because of their sexuality until the Defense Department legalized service for gay and lesbian troops in 2011. But they have a chance to fix their records if the policies that kicked them out have been changed.
The Board for Correction of Naval Records can overturn a wide range of records, from counseling letters to detachments for cause, but recently they have been putting the word out to veterans who were separated because of the military's "Don't ask, don't tell" policy — and its previous across-the-board ban — that they can have their discharges upgraded and their reenlistment codes or reason codes changed to reflect a post-DADT world.
"If you were discharged under 'Don’t ask, don’t tell,' come in," Navy Secretary Ray Mabus said in a June 8 speech at a Pentagon event for Lesbian, Gay, Bisexual and Transgender Pride Month. "The Board of Corrections for Naval Records will take a look at changing that discharge characterization … . And I would ask you all to do the same thing. If you have colleagues that were discharged under that, ask them to come in — if it’s under the regulations, get that discharge characterization changed."
Since opening the service to gays and lesbians in 2011, the Navy has granted 123 discharge upgrades, out of 413 requests, according to Defense Department data.
That includes relief from both BCNR and the Navy Discharge Review Board — 107 and 183 requests granted, respectively. That's out of more than 4,300 sailors and 1,300 Marines who were kicked out during DADT, from 1993 to 2011, according to Navy Department statistics.
NDRB should be the a sailor's first stop, said BCNR's executive director, because the simpler process gives the case two reviews — and if the request is still rejected, BCNR is the next step.
"In the case of 'Don't ask, don't tell,' we as the department hasve recognized a change in societal norms, and we recognize that where the discharge was based only on homosexuality that it would be appropriate to consider a higher discharge," Scott Thompson, whose organization's charter is to correct errors and expunge injustices, saidtold Navy Times in a May interview at the Pentagon. , offices of the [location]-based board, whose charter is to correct errors and expunge injustices.
Those who've won their cases have restored access to veteran education and health benefits, he said.
In general, BCNR can consider requests to upgrade discharges all the way down to dishonorable, but Thompson said most sexuality-related discharges were honorable or general under honorable conditions, which entitle veterans to all or most benefits.
WHAT'S A PERFECT CASE? REPHRASE NEEDED In a perfect case, he said, the veteran would have only then homosexuality charge on their record.The easiest cases to overturn are those where a veteran was discharged simply for being gay. If misconduct also came into play, it would be more complicated, but still worth pursuing.
Out of those discharged between 1993 and 2011, 54 percent of the sailors and 46 percent of the Marines were fully honorable or general under honorable conditions.
But in a more complicated case, like for someone if a sailor was discharged for both fraternization and homosexuality, upgrading a discharge is more work but still worth pursuing, Thompson said.
"They should absolutely apply," he said. "They just need to explain the circumstances that led to the fraternization, or if they contend it wasn't a valid claim. It's important to put it into context."
Veteran organizations have long advocated for service members kicked out because of their sexuality, and since the repeal of DADT, they've worked with DoD to upgrade records.
"We value the open communication and dialogue with the boards of corrections and strongly feel that the increase in our relationships will help to both encourage individuals to apply for their upgrades and understand the process," Outserve-SLDN executive director Matt Thor, the executive director of the military LGBT advocacy group Outserve-SLDN, said in a statement told Navy Times. "The boards have made a very concerted effort to address LGBT service members in their processes; we applaud them for those efforts and look forward to our continued working relationship with them."
Seeking justice
The first step is to determine whether to start with NDRB, an active-duty panel that's open for discharges less than 15 years old. It's recommended to start there, Thompson said, because it gives a veteran two extra chances to review their case, before taking it to BCNR's civilian panel, whose decision is final.
For cases older than 15 years, the appeal process begins at BCNR's official website, where you can start an application to have your case reviewed. Technically, the board's statute of limitations is three years, but the board regularly grants waivers.
They did just that in 2011 for a former hospital corpsman, who'd been dishonorably discharged as "undesirable" in 1944, as The New York Times reported in his recent obituary.
"It meant an awful lot to me because I know I never did anything disgraceful or dishonest," Melvin Dwork told the newspaper, recalling the ignominy of being jailed and then kicked out for a consensual relationship. Dwork worked for decades to remove overturn the Navy's ruling.
In that case, Thomas recommends that a veteran who is appealing part of the application, the veteran should submit a letter explaining why, in the interest of justice, the limit should be waived, Thompson said.
It's important to provide as much evidence as possible with the packet, he added, on top of the required DD-149 form.
"I always encourage veterans and their representatives — really build your case, spend time," he said. "Tell the board in plain English what it is you're looking for."
Include as much paperwork as you can gather: That means copies of service records, awards, evaluations, medical diagnoses, investigations — anything relevant to your case.
Once an application is submitted, one of BCNR's 16 examiners will pull an official service record from Navy Personnel Command and review anything the applicant includes. The examiner prepares a brief, and a panel of three senior Navy Department civilians meets once a month to hear cases.
It takes about a year on average to close a case, Thompson said, because like many federal agencies, there is a backlog. But recent changes, like boosting manpower by 13 percent and allowing email applications for the first time, are designed to move things along.
Another reason cases take so long, Thompson added, is a lack of available evidence. Investigators don't go searching for every tidbit on a service member, so it's crucial to include all relevant documentation with an application.
This is particularly important for veterans seeking to overturn more subjective records. As post-traumatic stress awareness has grown, for example, many veterans have had their discharges upgraded after the board found their misconduct was related to untreated trauma.
"Had we known that about that veteran at that time, would that have mitigated their misconduct?" Thompson said. "Obviously, a premeditated misconduct is probably not going to be mitigated by PTSD."
However, that kind of determination needs a doctor's diagnosis, which applicants should but don't always include, Thompson said.
BCNR can also review a range of black marks, like denied promotions and letters of instruction.
"I would encourage veterans who feel like they have some mitigating evidence that wasn't presented the first time, to present that to BCNR," he said.
In cases where a sailor or Marine feels there's been professional retaliation for whistle-blowing, Thompson recommended going through inspector general channels before BCNR.
Former Lt. Cmdr. Sy'needa Penland, who claims she was erroneously prosecuted for adultery for trying to suss out waste and fraud in her command, is getting a second try at BCNR, thanks to a federal judge's ruling in April. She claims that her court-martial conviction led to her early separation, just months before her 20-year retirement date.
In that type of case, Thompson said, it's possible that the BCNR could recommend that the Navy secretary of the Navy launch an investigation into the perpetrator if they confirm retaliation.
It's still important to note, though, that BCNR's overturn rate is very low, Thompson said, though he couldn't provide an exact statistic.
"That would make sense if others have looked at these beforehand and relief has been denied," he said.
Still, the organization is working on outreach to make sure all sailors, Marines and veterans, and particularly those who were affected by policies the Navy has since abandoned, know they have recourse.
"I would just say that we're eager to meet with veterans groups," Thompson said. "We want the feedback. We want veterans to know that the board's available."
Meghann Myers is the Pentagon bureau chief at Military Times. She covers operations, policy, personnel, leadership and other issues affecting service members.
