WASHINGTON — President Joe Biden announced Wednesday that troops who were convicted under an old military policy criminalizing consensual gay sex would receive full pardons — a move that 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, and it’s not clear whether the government will try to find a way to compensate for those costs or how it might set benefits from this point forward.
Here’s a look at how the policy has changed, how veterans can apply for the pardons and what questions still need to be answered:
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, said Rachel Branaman, a spokeswoman for the Modern Military Association of America, an advocacy organization of LGBTQ+ service members, military spouses, veterans, their families and allies.
The total numbers affected — including service members who may have been targeted due to sexual orientation but discharged for other issues — could be much higher, she said. While the act was no longer criminalized in the UCMJ after 2013, service members who had been prosecuted under Article 125 before then and discharged were still facing the repercussions of having those military convictions on their records.
Service members who were 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.
Not everyone will qualify under Biden’s proclamation. Exceptions include if the consensual act occurred during an adulterous relationship with the spouse of another service member or where a power imbalance put into question whether the act was consensual, such as between a recruiter and a potential recruit.
The Pentagon’s portal has the guidelines for who qualifies and an application for a pardon, which affected veterans will need to submit to the military branch they served in.
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 to get proof from the Justice Department’s Office of the Pardon Attorney that they were pardoned.
That’s important because it will allow the affected veteran’s record to be corrected in paperwork used to apply for loans, credit, employment or positions of trust.
The pardon doesn’t 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 will then need to apply separately to his military branch to correct military records, including an upgrade or correction of a discharge.
Branaman said that while this was a positive step, it puts the burden on the veterans to work to remove a conviction that they should not have faced, adding that the administration needs to find a way to streamline the process.
The convictions have had potentially life-altering repercussions, as 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, Branaman said.
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.
“We don’t know what will be retroactive,” Branaman said.