Tag Archives: veterans

Vets discharged under Don’t Ask Don’t Tell

The ABA is supporting legislation to allow veterans who were discharged under the Don’t Ask Don’t Tell to request a change in their military records.

“Restore Honor to Service Members Act,” H.R. 2839, will ensure that veterans who were discharged solely because of their sexual orientation and did not receive an “honorable” characterization of service can have the opportunity to request their characterization be upgraded. In addition, those who did receive an honorable discharge would be able to remove any reference to sexual orientation from their records by requesting a review.

This bill was introduced on July 25, 2013 and was referred to committee.  Since July 25, 2013 there has been no movement.  The ABA President’s letter, dated November 21, urges the subcommittee to take action.

via Vets discharged under Dont Ask, Dont Tell should be allowed to seek change in records, ABA says.

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Filed under civil rights, discrimination, employment, federal, Pending Legislation

Military Survivor Benefits for Same-Sex Spouse

In Copper-Harris v. United States, Case No. 2:12-00887 (Aug. 29, 2013), the Central District of California District Court recently ruled that the military could not deny survivor benefits to a same-sex spouse.  This case is interesting because it brings up a very interesting conflict of laws.

California recognizes same-sex marriages and recently the Supreme Court reversed DOMA.  You can see my prior post discussing the DOMA decision here.

Meanwhile, the Veteran’s Benefits statute, Title 38, defines a survivor spouse as “a person of the opposite sex who was the spouse of a veteran.” 38 U.S.C. 101(3).

The federal District Court in California, without referencing DOMA or what would be the appropriate standard of review, sided with the same-sex surviving spouse.  Using a rational basis review, the military would have to show that their action was rationally related to the purpose of the statute.  The questions can be summed up as follows:

  1. Is the survivor benefit exclusion of same-sex spouses rationally related to the goal of gender equality and expansion of the availability of veteran’s benefits?
  2. Is the survivor benefit exclusion of same-sex spouses rationally related to caring for and providing for veteran families?

The court said no.  Relying on expert testimony, the court noted that “veteran’s benefits are essential to ensuring that servicemembers perform to their ‘maximum potential,’ and other purposes justifying veterans benefits including readiness, recruiting, cohesion, and retention.”  Further, the court concluded that excluding same-sex spouses were not rationally related to the promotion of gender equality.

The court, based on the stated purpose of the Veterans Benefits statute, held that there was no rational basis for prohibiting same-sex survivors to receive the survivor benefits.

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Filed under civil rights, District Court, federal, legal decision, Pending Legislation, Supreme Court

VA modifies Mental Health benefits

Courthouse News has this update on VA benefits regulations:

The Department of Veterans Affairs has modified eligibility rules so veterans with mental illness may receive treatment while waiting for confirmation of their service, according to a revised regulation.

The VA has revised its rules to allow for tentative eligibility approvals for VA health care for those who served in the military after Sept. 7, 1980. Applicants must still meet the minimum service requirement under federal code and tentative approvals are contingent on whether they have filed for VA health care within six months after their discharge under conditions “other than dishonorable,” the agency said in its action.

Effective June 13, veterans may receive medical treatment before their psychosis or “mental illness other than psychosis” has been confirmed to be service-connected, the rule says.

The VA said the rule change makes sense considering most veterans are able to connect their medical condition to military service, and early treatment could improve their chances of a positive outcome.

“The immediate medical treatment will, in turn, enable the veteran to manage his or her medical condition more effectively,” the agency said in its action.

The agency also removed the six-month minimum service time to be eligible for the mental health benefits. The minimum was originally set by a Congress concerned about some service members who would enlist with the sole intention of obtaining eligibility for veterans’ benefits, but then would bring about their own early discharge, the agency explained in its action.

The agency said that the rule has been changed “in consideration of the fact that very few, if any, veterans will be seeking tentative eligibility determinations within six months of discharge for a period of service that began over 32 years ago. The amount of time that a veteran, who entered active duty after Sept. 7, 1980, must serve on active duty to be eligible for VA benefits is governed by another U.S. code.

In addition, mental health care has been extended to “non-enrolled” veterans, or veterans who receive their care from private hospitals instead of the VA, and copayment obligations have been removed.

via Courthouse News Service.

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Filed under civil rights, federal, regulations