DOD not required by law to dock gay servicemembers pay, they’re doing it because they want to

We reported yesterday on the fact that the Obama administration was back in court defending a discriminatory anti-gay policy in which they’re docking the pay of some gay service members kicked out under “Don’t Ask, Don’t Tell,” to the tune of 50% of their retirement. Why are they docking their pay? “For homosexuality,” according to the Pentagon.

Yes, they’re cutting the retirement benefits of gay service members explicitly because they’re gay.

Yesterday I caught some flak from the usual suspects who didn’t think this story was true, and/or who thought DOD’s hand were tied by legislation that required them to dock the retirement pay of DADT victims.

It is true, my source is the ACLU. And it’s not required in legislation – according to the ACLU, the Pentagon could change the rule immediately, on their own. Again, from the ACLU:

Congress made a judgment that military personnel who serve their country for at least six years and are honorably discharged should get separation pay. The Department of Defense decided to cut that separation pay in half for any service member who is discharged for “homosexuality.” The ACLU has filed a class action lawsuit challenging that discriminatory internal policy of the Department of Defense as unconstitutional. The separation-pay policy is not part of “Don’t Ask, Don’t Tell” and the Department can change it immediately without waiting for congressional approval.

Which begs the question, then why doesn’t the Pentagon stop punishing gay servicemembers, and why doesn’t the White House do something about it?

Again, this isn’t about DADT. DADT doesn’t require that gay servicemembers lose half of their retirement pay. That’s just a bit of extra homophobia the Pentagon decided to throw in on its own. And sure, you could argue that this policy came about back in 1991, during the first Bush administration, so President Obama and the current Pentagon aren’t to blame for an old evil Bush policy.

But yes they are.

President Obama owned this discriminatory policy the day he was asked to rescind it, and refused. From the ACLU:

The ACLU and the Servicemembers Legal Defense Network first contacted the Defense Department in November 2009 to request that the separation-pay policy be revised to eliminate the discrimination against gay and lesbian service members, but the department has refused to do so.

President Obama owned this bigoted policy the day he defended it in court.

Once again, this policy isn’t required by law. Even the Obama Justice Department admits that the Secretary of Defense has total discretion to do what he wants in this case.  Here’s DOJ’s motion asking that the lawsuit be dismissed:

Under the statute, half separation pay may be provided “under criteria prescribed by the Secretary of Defense.” Id. at § 1174(a)(2), (b)(2). The statute places no limitation upon the Secretary’s discretion to prescribe such criteria. Id.

In accordance with the statute, the Secretary of Defense set forth criteria for separation
pay in Department of Defense Instruction (“DoDI”) 1332.29, published in 1991, prior to the
passage of the “Don’t Ask, Don’t Tell” (“DADT”) policy, 10 U.S.C. § 654.

The Secretary has total discretion.

So once again we are forced to ask why the Obama administration is insisting on docking the retirement pay of gay servicemembers simply because they’re “homosexual”?


Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Google+ | LinkedIn. John Aravosis is the editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown (1989); and worked in the US Senate, World Bank, Children's Defense Fund, and as a stringer for the Economist. Frequent TV pundit: O'Reilly Factor, Hardball, World News Tonight, Nightline & Reliable Sources. Bio, .

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