President Joe Biden on Wednesday announced he was using his clemency powers to allow eligible LGBTQ veterans convicted by the military over a 60-year period under a law that banned gay sex to apply for a pardon.
The move, occurring during Pride Month, seeks to "right a historic wrong," as Biden noted in a June 26 statement.
During a call with reporters Tuesday, June 25, senior administration officials said that the process would involve a person first applying for proof that they fall under the criteria and then seeking a certificate of pardon from their military branch. There will also be a process available to seek discharge upgrades for those requesting a certificate of pardon, the officials said.
The clemency action applies only to those who were convicted under the military's now-repealed Article 125 of the Uniform Code of Military Justice, which was in effect from 1951 to December 2013. Article 125 prohibited sodomy. It was repealed as part of the National Defense Authorization Act 2013. The repeal was especially significant for gay and lesbian servicemembers.
According to an article posted on CNN Tuesday, before the call with administration officials, about 2,000 people would be affected by the new pardon process. On the call, officials did not provide a number of how many people might be eligible.
The officials were asked on the call about outreach to former military members who might be eligible, and reporters pointed out that some may be unhoused and not aware of the new policy. Administration officials said outreach would be done in connection with the Veterans Administration.
In his statement Wednesday, Biden said that many of the impacted former servicemembers have long been affected by the old military law.
"Despite their courage and great sacrifice, thousands of LGBTQ+ servicemembers were forced out of the military because of their sexual orientation or gender identity," Biden stated. "Some of those patriotic Americans were subject to court-martial, and have carried the burden of this great injustice for decades.
"This is about dignity, decency, and ensuring the culture of our armed forces reflect the values that make us an exceptional nation," the president added. "We have a sacred obligation to all of our servicemembers — including our brave LGBTQI+ servicemembers: to properly prepare and equip them when they are sent into harm's way, and to care for them and their families when they return home. Today, we are making progress in that pursuit."
LGBTQ veterans group responds
The Modern Military Association of America, an LGBTQ veterans group that was formed after the closure of Servicemembers Legal Defense Network, praised the president's action.
"Today marks a historic step toward justice and equality as President Biden uses his clemency authority to pardon many former service members wrongly convicted under the former Uniform Code of Military Justice Article 125," the group stated in a news release.
The group also called on the federal government to act quickly.
"To ensure that justice is served swiftly and effectively, we call upon the individual departments of the armed services to exercise their capacity to approve these pardons and subsequently approve their discharge upgrades en masse," MMAA stated. "We call upon individual departments to file requests for a group of individuals similarly harmed by a group injustice, thus streamlining the process and providing much-needed relief to affected veterans."
For those former servicemembers who may have been convicted under Article 125 and another law, Article 133 of the UCMJ, they would be able to seek a pardon under Article 125 only. A separate process would need to be followed for convictions under other military laws, the Biden administration officials said. Article 133 is conduct unbecoming an officer.
It is not known how long the review of applicants would take. The officials on the media call declined to provide a specific timeline, other than to say, "the review process will be as efficient as possible."
The administration officials suggested that pro bono attorneys may want to help former servicemembers, though they would not be government lawyers. One official suggested that private attorneys who want to help LGBTQs could provide that service.
Administration officials said the pardon process "provides a pathway" for the VA to provide benefits. One official said that the VA is committed to ensuring pardon recipients receive "pay and benefits they deserve."
Political climate
The officials were asked about the current political climate and the effort by conservatives to decrease or eliminate diversity, equity, and inclusion, or DEI, programs. An official said that the Defense Department "should not and cannot prevent careers" of LGBTQ people, and that it works to create a climate of diversity, inclusion, and respect.
One official pointed out that soon after Biden took office in January 2021, he lifted the ban on open service by trans servicemembers that had been implemented by former President Donald Trump. The Defense Department has inclusionary policies for LGBTQ servicemembers and civilians, the official said.
Last December, Biden pardoned thousands of people who had been convicted of use and simple possession of marijuana on federal lands and in the District of Columbia, as the Associated Press reported. On the press call about the new policy, officials were asked about the president's pardon philosophy.
An official said the two policies "advance the president's interest in criminal justice reform."
As for the Pride Month timing of the LGBTQ servicemember pardon policy, officials repeatedly said it's a way for the president to "right a historic wrong, and he felt the time was now."
The new policy also applies to deceased servicemembers. In those cases, there's a process for the late servicemember's family to get in touch, officials said.
The time during the 1950s, when Article 125 took effect, was known as the "Lavender Scare." LGBTQ federal workers could lose their jobs if their sexual orientation or gender identity were to become known. President Dwight D. Eisenhower signed an executive order banning LGBTQ employees from serving in the federal government.
On April 26, 2023, on the 70th anniversary of the Lavender Scare, Biden issued a proclamation in which he called on government officials and the American people to "honor the contributions of LGBTQI+ public servants, recognize the lives impacted by the Lavender Scare, and to celebrate the great diversity of the American people."
Last year, on the 12th anniversary of the repeal of "Don't Ask, Don't Tell," the military's policy that prohibited gay and lesbian service members from serving openly, the Defense Department released a statement indicating it was working more proactively to review military records of veterans discharged because of their sexual orientation.
MMAA pointed out the long history of discrimination of LGBTQ people by the federal government.
"The consequences of anti-LGBTQ+ discrimination have been far-reaching, causing moral injury, undue harm, and hardship to countless service members who served with honor and integrity," the organization stated. "Many were discharged, court-martialed, or faced other punitive actions simply because of their sexual orientation. This policy deprived our military of talented and dedicated individuals, instilled institutional betrayal, deprived veterans of military benefits, and inflicted lasting trauma on those affected."
According to MMAA, it was estimated that 114,000-plus LGBTQ service members were kicked out under DADT and only 1,375 have since been upgraded to honorable discharges as of March 2023. The Defense Department upgrade process is arduous and can take years, which is why many veterans opt for the Department of Veterans Affairs upgrade reviews. It is faster and boasts a 70% approval rate, the association noted on its website.
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