Biden pardons veterans convicted under military law banning gay sex

President Joe Biden is pardoning US veterans who were convicted by the military over a 60-year period under a military law that banned gay sex, three US officials told CNN.

In a statement on Wednesday, Biden said he was “righting an historic wrong” by pardoning service members “who were convicted simply for being themselves.”

“Our nation’s service members stand on the frontlines of freedom, and risk their lives in order to defend our country. Despite their courage and great sacrifice, thousands of LGBTQI+ service members were forced out of the military because of their sexual orientation or gender identity. … This is about dignity, decency, and ensuring the culture of our Armed Forces reflect the values that make us an exceptional nation,” he said.

The proclamation is set to affect roughly 2,000 people, according to a US official. The granting of pardons won’t automatically change convicted veterans’ records but allows those impacted to apply for a certificate of pardon that will help them receive withheld benefits.

The pardon, which CNN was first to report on, specifically grants clemency to service members who were convicted under former Uniform Code of Military Justice Article 125 — which criminalized sodomy, including between consenting adults — between 1951 and 2013 when it was rewritten by Congress. It also applies to those who were convicted of attempting to commit those offenses.

Anyone who was convicted of a non-consensual act such as rape will not be pardoned.

A senior administration official told reporters on Tuesday that they are also working to address cases in which LGBTQ+ service members were convicted under other UCMJ charges than Article 125, such as conduct unbecoming an officer. The official said individuals who may have been convicted of other charges “based on their sexual orientation or gender identity” can go through the normal pardon process at the Department of Justice.

“We’re already doing work with DOJ to make sure that those applications as they come in are flagged and expedited, but we recognize this is limited,” they said.

Separately, the law known as “Don’t Ask, Don’t Tell” was repealed by Congress in 2011, but not before thousands of service members had been discharged from the military.

A service member’s discharge status can determine what kind of Veterans Affairs benefits they are eligible for. A bad-conduct discharge, for example, given under general court-martial, can make someone ineligible for services including a VA home loan military pension, and education benefits.

The pardon is separate from the Pentagon’s ongoing review of military records for those who were discharged based on their sexual orientation, which another US official said did not apply to convictions under the UCMJ. The Pentagon launched a new outreach campaign last September to reach more veterans who believe they “suffered an error or injustice” to have their military records reviewed.

“For decades, our LGBTQ+ service members were forced to hide or were prevented from serving altogether,” Defense Secretary Lloyd Austin said at the time. “Even still, they selflessly put themselves in harm’s way for the good of our country and the American people.”

In order to get their records changed under the pardon, individuals will need to complete an online application, which will go to their military service department. The services will then review the individual’s court-martial and service record and determine if they are eligible for the pardon; that determination will then be sent to the attorney general, acting through the Department of Justice’s pardon attorney, a US official explained.

The certificate of pardon does not automatically change someone’s discharge status. If a certificate of pardon is issued, the service member will then have to apply to their respective military department’s board of corrections to have their military records corrected.

A second senior administration official said Tuesday that the administration is working through how best to do outreach on the pardons to ensure veterans know they can apply and is “committed to making the process as accessible as possible for former military service members.”

The official also said the admin is “thinking through” getting private attorneys to work pro bono and assist veterans through the process.

“(T)here are a lot of private attorneys who are eager and interested in providing services to LGBTQ+ individuals and to the extent that individuals may benefit from the attorney in this process, we’re just working through ways to connect those individuals with pro bono counseling,” the official said.

This headline and story have been updated with additional developments.

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