115th CONGRESS 1st Session |
To direct the Secretary of Defense to review the discharge characterization of former members of the Armed Forces who were discharged by reason of the sexual orientation of the member, and for other purposes.
June 15, 2017
Mr. Pocan (for himself, Mr. Gallego, Mr. Correa, Ms. Barragán, Mrs. Beatty, Mr. Beyer, Mr. Blumenauer, Ms. Blunt Rochester, Ms. Bonamici, Mr. Brendan F. Boyle of Pennsylvania, Mr. Brown of Maryland, Ms. Brownley of California, Mr. Cárdenas, Mr. Carson of Indiana, Mr. Cartwright, Ms. Castor of Florida, Mr. Cicilline, Ms. Clark of Massachusetts, Ms. Clarke of New York, Mr. Cohen, Mr. Crist, Mr. Crowley, Mr. Curbelo of Florida, Mrs. Davis of California, Mr. Delaney, Ms. DelBene, Mr. DeSaulnier, Mr. Deutch, Mr. Engel, Ms. Eshoo, Ms. Esty of Connecticut, Mr. Foster, Ms. Frankel of Florida, Mr. Al Green of Texas, Mr. Grijalva, Ms. Hanabusa, Mr. Heck, Mr. Higgins of New York, Mr. Himes, Ms. Norton, Mr. Huffman, Ms. Jayapal, Mr. Keating, Ms. Kelly of Illinois, Mr. Kennedy, Mr. Khanna, Mr. Kihuen, Mr. Kildee, Mr. Kind, Mr. Langevin, Mr. Lawson of Florida, Ms. Lee, Mr. Ted Lieu of California, Mr. Lipinski, Mr. Lowenthal, Mrs. Lowey, Ms. Michelle Lujan Grisham of New Mexico, Mr. Lynch, Mr. Sean Patrick Maloney of New York, Mrs. Carolyn B. Maloney of New York, Ms. McCollum, Mr. McGovern, Ms. Meng, Ms. Moore, Mr. Moulton, Mrs. Murphy of Florida, Mr. Nadler, Mrs. Napolitano, Mr. Nolan, Mr. Norcross, Mr. O'Rourke, Mr. Pallone, Mr. Panetta, Mr. Perlmutter, Mr. Peters, Ms. Pingree, Mr. Polis, Mr. Raskin, Miss Rice of New York, Ms. Ros-Lehtinen, Mr. Ruiz, Mr. Rush, Mr. Ryan of Ohio, Mr. Sarbanes, Ms. Schakowsky, Mr. Schiff, Mr. Schneider, Mr. Schrader, Mr. Scott of Virginia, Mr. David Scott of Georgia, Mr. Serrano, Ms. Shea-Porter, Ms. Sinema, Mr. Soto, Mr. Swalwell of California, Mr. Takano, Ms. Titus, Mr. Tonko, Ms. Tsongas, Mr. Veasey, Mr. Walz, Ms. Wasserman Schultz, Mrs. Watson Coleman, Mr. Welch, Mr. Yarmuth, and Mr. Brady of Pennsylvania) introduced the following bill; which was referred to the Committee on Armed Services
To direct the Secretary of Defense to review the discharge characterization of former members of the Armed Forces who were discharged by reason of the sexual orientation of the member, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This Act may be cited as the “Restore Honor to Service Members Act”.
SEC. 2. Review of discharge characterization.
(a) In general.—In accordance with this section, the appropriate discharge boards—
(1) shall review the discharge characterization of covered members at the request of the covered member; and
(2) if such characterization is any characterization except honorable, may change such characterization to honorable.
(b) Criteria.—In changing the discharge characterization of a covered member to honorable under subsection (a)(2), the Secretary of Defense shall ensure that such changes are carried out consistently and uniformly across the military departments using the following criteria:
(1) The original discharge must be based on Don’t Ask Don’t Tell (in this Act referred to as “DADT”) or a similar policy in place prior to the enactment of DADT.
(2) Such discharge characterization shall be so changed if, with respect to the original discharge, there were no aggravating circumstances, such as misconduct, that would have independently led to a discharge characterization that was any characterization except honorable. For purposes of this paragraph, such aggravating circumstances may not include—
(A) an offense under section 925 of title 10, United States Code (article 125 of the Uniform Code of Military Justice), committed by a covered member against a person of the same sex with the consent of such person; or
(B) statements, consensual sexual conduct, or consensual acts relating to sexual orientation or identity, or the disclosure of such statements, conduct, or acts, that were prohibited at the time of discharge but after the date of such discharge became permitted.
(3) When requesting a review, a covered member, or their representative, shall be required to provide either—
(i) a copy of the DD–214 form of the member;
(ii) a personal affidavit of the circumstances surrounding the discharge; and
(iii) any relevant records pertaining to the discharge; or
(B) an affidavit certifying that the member, or their representative, does not have the documents specified in subparagraph (A).
(4) If a covered member provides an affidavit described in subparagraph (B) of paragraph (3)—
(A) the appropriate discharge board shall make every effort to locate the documents specified in subparagraph (A) of such paragraph within the records of the Department of Defense; and
(B) the absence of such documents may not be considered a reason to deny a change of the discharge characterization under subsection (a)(2).
(c) Request for review.—The appropriate discharge board shall ensure the mechanism by which covered members, or their representative, may request to have the discharge characterization of the covered member reviewed under this section is simple and straightforward.
(1) IN GENERAL.—After a request has been made under subsection (c), the appropriate discharge board shall review all relevant laws, records of oral testimony previously taken, service records, or any other relevant information regarding the discharge characterization of the covered member.
(2) ADDITIONAL MATERIALS.—If additional materials are necessary for the review, the appropriate discharge board—
(A) may request additional information from the covered member or their representative, in writing, and specifically detailing what is being requested; and
(B) shall be responsible for obtaining a copy of the necessary files of the covered member from the member, or when applicable, from the Department of Defense.
(e) Change of characterization.—The appropriate discharge board shall change the discharge characterization of a covered member to honorable if such change is determined to be appropriate after a review is conducted under subsection (d) pursuant to the criteria under subsection (b). A covered member, or the representative of the member, may appeal a decision by the appropriate discharge board to not change the discharge characterization by using the regular appeals process of the board.
(f) Change of records.—For each covered member whose discharge characterization is changed under subsection (e), or for each covered member who was honorably discharged but whose DD–214 form reflects the sexual orientation of the member, the Secretary of Defense shall reissue to the member or their representative a revised DD–214 form that reflects the following:
(1) For each covered member discharged, the Separation Code, Reentry Code, Narrative Code, and Separation Authority shall not reflect the sexual orientation of the member and shall be placed under secretarial authority. Any other similar indication of the sexual orientation or reason for discharge shall be removed or changed accordingly to be consistent with this paragraph.
(2) For each covered member whose discharge occurred prior to the creation of general secretarial authority, the sections of the DD–214 form referred to paragraph (1) shall be changed to similarly reflect a universal authority with codes, authorities, and language applicable at the time of discharge.
(1) IN GENERAL.—Each covered member whose discharge characterization is changed under subsection (e) shall be treated without regard to the original discharge characterization of the member, including for purposes of—
(A) benefits provided by the Federal Government to an individual by reason of service in the Armed Forces; and
(B) all recognitions and honors that the Secretary of Defense provides to members of the Armed Forces.
(2) REINSTATEMENT.—In carrying out paragraph (1)(B), the Secretary shall reinstate all recognitions and honors of a covered member whose discharge characterization is changed under subsection (e) that the Secretary withheld because of the original discharge characterization of the member.
(h) Definitions.—In this section:
(1) The term “appropriate discharge board” means the boards for correction of military records under section 1552 of title 10, United States Code, or the discharge review boards under section 1553 of such title, as the case may be.
(2) The term “covered member” means any former member of the Armed Forces who was discharged from the Armed Forces because of the sexual orientation of the member.
(3) The term “discharge characterization” means the characterization under which a member of the Armed Forces is discharged or released, including “dishonorable”, “general”, “other than honorable”, and “honorable”.
(4) The term “Don’t Ask Don’t Tell” means section 654 of title 10, United States Code, as in effect before such section was repealed pursuant to the Don't Ask, Don't Tell Repeal Act of 2010 (Public Law 111–321).
(5) The term “representative” means the surviving spouse, next of kin, or legal representative of a covered member.
(a) Review.—The Secretary of Defense shall conduct a review of the consistency and uniformity of the reviews conducted under section 2.
(b) Reports.—Not later than 270 days after the date of the enactment of this Act, and each year thereafter for a four-year period, the Secretary shall submit to Congress a report on the reviews under subsection (a). Such reports shall include any comments or recommendations for continued actions.
The Secretary of each military department shall ensure that oral historians of the department—
(1) review the facts and circumstances surrounding the estimated 100,000 members of the Armed Forces discharged from the Armed Forces between World War II and September 2011 because of the sexual orientation of the member; and
(2) receive oral testimony of individuals who personally experienced discrimination and discharge because of the actual or perceived sexual orientation of the individual so that such testimony may serve as an official record of these discriminatory policies and their impact on American lives.