Transgendered Service Members Remain In Limbo Yet Serve With Distinction.
In 1993 Congress created the law Don’t Ask, Don’t Tell which prohibited homosexual servicemembers from disclosing their sexual orientation. This created an untenable conflict to serve and lie or live truthfully and be forced from the military. It took 17 years of effort by thousands to lobby Congress, live their truth publicly to change perception of the lives of gays and lesbians. Society did change as did Congress and the Courts. Homosexuality was not an aberration but a variant of our humanness.
In December 2010, Congress at the recommendation of the Joint Chiefs of Staff and with some political maneuvering, voted to overturn Don’t Ask, Don’t Tell. On 22 December 2010, President Obama signed the bill. After a nine month transition phase, in September 2011 homosexuals could serve openly in the military.
Transgender Policy Under President Obama
In June 2016 after a yearlong study, the Dept of Defense announced that transgender service members can now serve openly in the military. This change was effective immediately according to Secretary of Defense Ash Carter. The change will take place over a year with full implementation and guidance for military by 1 Oct 2016. These changes were all done under the auspices of President Obama.
Regulations are not laws and can be changed by Executive Orders of a new Commander in Chief.
Transgender Tweets Under President Trump
President Trump, elected in November 2016 and became commander in chief January 2017. He governs by tweets which then have to be implemented.
Checking the Facts
Both tweets are incorrect. According to military leadership there had been no consultation and they were caught totally unaware of this pending policy change.
The second fallacy is that cost incurred by care of transgendered servicemembers as compared to other servicemembers is too expensive. The health care cost of the current 12,800 transgendered service members is estimated at 2.4-$8.4 million yearly. The expense of discharging the military’s transgender troops would be more than $960 million. As a cost comparison, the 2014 Rand Report identified the Department of Defense as having spent $84.24 million on 1.18 million prescriptions for eight different erectile dysfunction drugs like Cialis and Levitra. In 2014, Viagra was prescribed more than 905,000 times at a cost of $41.6 million.
The second tweet to ban transgender from serving in the military was sent by President Trump on July 26, 2017. It was formalized in August and Secretary of Defense was directed to develop a plan to begin purging transgender service members from the military by March 2018
Legal Challenges and Court Rulings
Ultimately by16 October 2017, fourteen states and the District of Columbia joined the pushback against President Donald Trump’s ban on transgender troops in the military. In their amicus brief (supportive documents to the original suit from other organizations and states) they cited the immediate adverse effects on state resources and the National Guard.
The focus was also that the ban on transgender people in the military was irrational and unconstitutional and would take talented transgender troops from the ranks and create significant harm to the states.
In Oct and Nov 2017 two separate district courts ruled against the ban stating that it was not supported by facts or scrutiny. The District of Columbia court decision stated that the ban was “not merely unsupported, but [are] actually contradicted by the studies, conclusions and judgments of the military itself.” The judge noted that “the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy, but rather by unlawful animus.” (prejudice). As a result any action against transgender required that they be treated as a protected class.
Two separate Appeals Courts upheld the decisions of the District Courts that the ban was unconstitutional on 21 and 22 December 2017. And the Justice Department decided not to appeal at this time pending the final recommendations from Secretary of Defense Mattis expected in March 2018.
Secretary Mattis proports that the Rand Report of 2016 underestimated the risk and cost of transgender serving in the military and therefore supports the ban except in rare circumstances.
On 16 April 2018, A U.S. judge in Seattle has ordered the president not to ban transgender troops from serving in the military, saying it's unclear whether recent changes to his administration's policy are constitutional. She told the parties to prepare for trial.
Presumably since there is no ban in effect transgendered individuals can join and serve in the military.
21 April 2018
Upgrading Your Military Discharge
It’s difficult, but not impossible, to get your bad paper discharge upgraded to honorable or get the reasons for your discharge changed.
Can I Get a Discharge Upgrade?
You can apply to the Discharge Review Board (DRB) of your branch of the service for a discharge upgrade or a change in the discharge reason (that is, character of service). To get your discharge upgraded or your character of service changed, you will have to show that your discharge was “improper" or "inequitable." Improper means factually incorrect or inconsistent with the law. Inequitable means inconsistent with the traditions and policies of the service.
An example of a discharge that qualifies for an upgrade might be that a veteran served honorably and had a single bad incident or was abusing drugs or alcohol as a means of self-medicating post-traumatic stress disorder.
Discharge Review Board.
Complete an Application for Review of Discharge From the Armed Services of the United States. You can complete it online, or get it from a local Department of Defense installation or the regional office of the Department of Veterans Affairs (VA). Either submit the application online or mail it to the address below for your branch of the service. Be very thorough in your application about all the reasons you believe you are entitled to an upgrade. Any issues you neglect to list will not be considered by the board, even if you or your lawyer raise them later on.
This tool can be found on Vets.gov at: https://www.vets.gov/discharge-upgrade-instructions.
This initiative was one of many in recent years aimed at improving the review process and guidance available to veterans who believe they may have been unfairly discharged or received an unfair discharge characterization.
The Department issued special guidance in 2011 for veterans discharged under “Don’t Ask, Don’t Tell” or its predecessor policies. Also, the Department issued guidance related to post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) in 2014.
Most recently, in February 2016, the Department redoubled its efforts to ensure veterans received the benefit of the latest guidance and statutes of limitations were liberally waived in such cases. Subsequently, in December 2016, the Department launched an internal review of its policies and procedures. That review disclosed some gaps and confusion in the previous guidance.
In August 2017, the Department issued significant guidance clarifying how review boards will consider cases involving mental health conditions, including PTSD, TBI, sexual assault, or sexual harassment.
For information on a specific board, please contact the board directly or through its website at:
Coast Guard: Board for Correction of Military Records of the Coast Guard
Navy and Marine Corps: The Board for Correction of Naval Records
If you received a less than honorable discharge you should fight for an upgrade. The SLDN/OutServe and Military Law Task Force are the best places to begin. If you were discharged and suffer PTS due to sexual assault in the military, contact the VA for assistance.