ACLU Challenged Policy that Cut Separation Pay in Half for Service Members Discharged for Their Sexual Orientation

 

WASHINGTON – Former service members who are part of a class action lawsuit challenging a Defense Department policy that cuts in half the separation pay of those who have been honorably discharged for “homosexuality” will receive their full pay after a settlement announced today.
 
The American Civil Liberties Union and the ACLU of New Mexico had filed a class action lawsuit against the policy, which was not part of the "Don't Ask, Don't Tell" statute and so was not changed when that law was repealed.
 
“There was absolutely no need to subject these service members to a double dose of discrimination by removing them from the armed forces in the first place, and then denying them this small benefit to ease the transition to civilian life,” said Laura Schauer Ives, managing attorney for the ACLU of New Mexico. “This decision represents a long-delayed justice to these veterans.”
 
The ACLU’s class action lawsuit represented approximately 181 honorably discharged veterans who had their separation pay cut in half because of the discriminatory policy. The total amount of separation pay withheld from those veterans is approximately $2.4 million. The lead plaintiff in the case is Richard Collins, a former staff sergeant in the Air Force who served for nine years until he was discharged under "Don't Ask, Don't Tell." Collins was stationed at Cannon Air Force Base in New Mexico before being seen by a co-worker exchanging a kiss with his boyfriend in their car while stopped at an intersection off-base.
 
“This means so much to those of us who dedicated ourselves to the military, only to be forced out against our will for being who we are,” said Collins. “We gave all we had to our country, and just wanted the same dignity and respect for our service as any other veterans.”
 
Under the settlement, all service members covered by the lawsuit will be contacted by the government and notified that they are eligible to opt in to the settlement and receive 100 percent of the separation pay that they would have received had they been discharged for any other honorable reason. Federal law entitles service members to separation pay if they have been involuntarily and honorably discharged from the military after completing at least six years of service in order to help ease their transition to civilian life.
The settlement covers service members who were discharged on or after November 10, 2004, which is as far back as the settlement could extend under the applicable statute of limitations.
 
“It makes no sense to continue to penalize service members who were discharged under a discriminatory statute that has already been repealed,” said Joshua Block, staff attorney for the ACLU Lesbian Gay Bisexual Transgender Project. “The amount of the pay owed to these veterans is small by military standards, but is hugely significant in acknowledging their service to their country.”
 
More information on the case is available at: http://www.aclu.org/lgbt-rights/collins-v-united-states-class-action-military-separation-pay
 
CONTACT: Robyn Shepherd, ACLU national, (212) 519-7829 or 549-2666; [email protected]
Micah McCoy, ACLU of New Mexico, (505) 266-5915 x1003; [email protected]

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Long time ACLU member Phil Bock was a finalist for the 2011 ACLU of New Mexico Southern Chapter annual songwriting contest held in Silver City.  The contest theme was "LGBT Rights." Here are the lyrics from "Freedom To Love."  The music is available to anyone interest from   [email protected].

FREEDOM TO LOVE

By Phil Bock

Freedom To Love and freedom to choose: That's what we all are fighting for. Just to show affection, freely without fear, And have protection from the law.

It shouldn't matter how we look or how we talk, We're equal even if we're few. We are human beings, we have human rights Protected by the ACLU.

Freedom to love is one human right And we demand it every day. No one has to beg for a basic human right. Straight or gay we're all okay.

Freedom from fear and freedom from hate, No need for hiding who we are:Not to need protection, nor to face rejection Whether in marriage or in war.

 It’s not illegal how we walk or how we talk, We have a style that’s not like yours: Maybe worse or better, you must understand Difference is not against the law.

It is a core American value that elected officials and public servants, from teachers to police officers, should be held accountable for their actions, and that government agencies should be transparent in their operations. Border Patrol agents, who patrol isolated stretches of desert along the border and are increasingly creeping into the interior of the country, are no exception. The huge increase in the number of Border Patrol agents in the last few years has been paralleled by an increase in the number of people killed at the hands of these agents. Many rights advocates are concerned not just about these use-of-force incidents but also about the apparent lack of transparency and accountability within Customs and Border Patrol (CBP), the largest law enforcement agency in the U.S. An Arizona Daily Star article published on December 9takes an in-depth look at CBP’s apparent practice of “secret, complex investigations” in contrast with the relatively open and transparent investigations conducted by local police agencies.  
When a local police officer or sheriff kills someone during a patrol or pursuit, standard practice is for the police agency to hold an open investigation naming the official, stating whether or not they have been given desk duty, and disclosing the results of the investigation. But if a Border Patrol agent shoots and kills someone, there seems to be little transparency. Whether the death is of an individual on either side of the border or a fellow agent (such as in the friendly fire death of Border Patrol Agent Nicholas Ivie), the public should expect a swift, open investigation consistent with the practices of other law enforcement agencies.  
But in the last few years, when CBP officers have used deadly force, family members of the victims are often left with more questions than answers. After 19-year-old U.S. citizen Carlos LaMadrid was fatally shot by a Border Patrol agent in Douglas, Arizona, his family did not even know the name of the agent who had killed him until they filed a court order demanding this information. In the case of Anastasio Hernández-Rojas, a 42-year-old man who was beaten and killed by Border Patrol agents in the process of being deported back to Mexico, CBP claimed he was resisting arrest and that agents needed to use force to restrain him, but videos from eyewitnesses show a handcuffed man lying on the ground, surrounded by more than a dozen agents, one of whom used a Taser on him at least five times. Hernández-Rojas’ story was exposed in a PBS “Need to Know” special that aired April 20. The resulting public outcry, as well as a letter from 16 members of Congress, finally prompted a grand jury investigation (which has yet to be concluded).
The procedure for investigations of CBP use-of-force incidents in and of itself is problematic. As the Arizona Daily Star article noted, these investigations usually take several years and are shrouded in secrecy—they even prove confusing for attorneys with direct experience in cases involving agents. At least 19 people, including five U.S. citizens, have died at the hands of CBP agents since January 2010, but the U.S. Department of Justice has released findings in only one of these cases. In the case of Sergio Hernández-Guereca, the DOJ sided with the Border Patrol agent, claiming that the agent followed CBP’s use-of-force protocol and that the United States did not have the authority to prosecute the agent for killing someone who was standing on Mexican soil.  
In the wake of continued incidents of deadly force by Border Patrol agents and further public pressure, CBP seems to be taking some welcome steps towards increased transparency.  The Los Angeles Times recently reported that Customs and Border Protection has begun a “comprehensive review” of its use-of-force policies. This process includes reminding agents of CBP’s use-of-force protocol, evaluating these guidelines with the help of an outside research group, and giving Mexican authorities information on closed investigations. The Department of Homeland Security’s Office of Inspector General is also investigating use-of-force incidents by Border Patrol agents, going as far back as 2005.  
Outcry from civil society, members of Congress and even the international community, including the Inter-American Commission on Human Rights and U.N. High Commissioner for Human Rights, has put pressure on CBP to increase transparency and accountability. And while the comprehensive review of CBP’s use-of-force policies is a welcome and necessary step, we will continue to demand more. For starters, as stated in our recent testimony before the United Nations, the border must not be seen as a zone of “exceptionalism” where those patrolling the border have nearly unlimited power, with little regard for the constitutional rights of individuals. We are concerned about CBP’s pattern of deadly force incidents and hope that by demanding accountability and transparency from CBP, just as we demand it from local police agencies, we will be able to protect the rights of border residents and stop the death toll from rising.