[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 1366 Introduced in Senate (IS)]

<DOC>






115th CONGRESS
  1st Session
                                S. 1366

      To direct the Secretary of Defense to review the discharge 
    characterization of former members of the Armed Forces who were 
 discharged by reason of the sexual orientation of the member, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 15, 2017

 Mr. Schatz (for himself, Ms. Baldwin, Mr. Bennet, Mr. Blumenthal, Mr. 
 Booker, Mr. Brown, Mr. Cardin, Mr. Carper, Mr. Casey, Mr. Coons, Mr. 
Durbin, Mrs. Feinstein, Mr. Franken, Mrs. Gillibrand, Mr. Heinrich, Ms. 
Hirono, Mr. Markey, Mr. Menendez, Mr. Merkley, Mr. Murphy, Mr. Peters, 
   Mr. Sanders, Ms. Stabenow, Mr. Tester, Mr. Udall, Ms. Warren, Mr. 
  Whitehouse, Mr. Wyden, Mr. Kaine, and Mrs. Shaheen) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             Armed Services

_______________________________________________________________________

                                 A BILL


 
      To direct the Secretary of Defense to review the discharge 
    characterization of former members of the Armed Forces who were 
 discharged by reason of the sexual orientation of the member, and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Restore Honor to Service Members 
Act''.

SEC. 2. REVIEW OF DISCHARGE CHARACTERIZATION.

    (a) In General.--In accordance with this section, the appropriate 
discharge boards--
            (1) shall review the discharge characterization of covered 
        members at the request of the covered member; and
            (2) if such characterization is any characterization except 
        honorable, may change such characterization to honorable.
    (b) Criteria.--In changing the discharge characterization of a 
covered member to honorable under subsection (a)(2), the Secretary of 
Defense shall ensure that such changes are carried out consistently and 
uniformly across the military departments using the following criteria:
            (1) The original discharge must be based on Don't Ask Don't 
        Tell (in this Act referred to as ``DADT'') or a similar policy 
        in place prior to the enactment of DADT.
            (2) Such discharge characterization shall be so changed if, 
        with respect to the original discharge, there were no 
        aggravating circumstances, such as misconduct, that would have 
        independently led to a discharge characterization that was any 
        characterization except honorable. For purposes of this 
        paragraph, such aggravating circumstances may not include--
                    (A) an offense under section 925 of title 10, 
                United States Code (article 125 of the Uniform Code of 
                Military Justice), committed by a covered member 
                against a person of the same sex with the consent of 
                such person; or
                    (B) statements, consensual sexual conduct, or 
                consensual acts relating to sexual orientation or 
                identity, or the disclosure of such statements, 
                conduct, or acts, that were prohibited at the time of 
                discharge but after the date of such discharge became 
                permitted.
            (3) When requesting a review, a covered member, or the 
        member's representative, shall be required to provide either--
                    (A) documents consisting of--
                            (i) a copy of the DD-214 form of the 
                        member;
                            (ii) a personal affidavit of the 
                        circumstances surrounding the discharge; and
                            (iii) any relevant records pertaining to 
                        the discharge; or
                    (B) an affidavit certifying that the member, or the 
                member's representative, does not have the documents 
                specified in subparagraph (A).
            (4) If a covered member provides an affidavit described in 
        subparagraph (B) of paragraph (3)--
                    (A) the appropriate discharge board shall make 
                every effort to locate the documents specified in 
                subparagraph (A) of such paragraph within the records 
                of the Department of Defense; and
                    (B) the absence of such documents may not be 
                considered a reason to deny a change of the discharge 
                characterization under subsection (a)(2).
    (c) Request for Review.--The appropriate discharge board shall 
ensure the mechanism by which covered members, or their representative, 
may request to have the discharge characterization of the covered 
member reviewed under this section is simple and straightforward.
    (d) Review.--
            (1) In general.--After a request described in subsection 
        (c) has been made, the appropriate discharge board shall review 
        all relevant laws, records of oral testimony previously taken, 
        service records, or any other relevant information regarding 
        the discharge characterization of the covered member.
            (2) Additional materials.--If additional materials are 
        necessary for the review, the appropriate discharge board--
                    (A) may request additional information from the 
                covered member or the member's representative, in 
                writing, and specifically detailing what is being 
                requested; and
                    (B) shall be responsible for obtaining a copy of 
                the necessary files of the covered member from the 
                member, or when applicable, from the Department of 
                Defense.
    (e) Change of Characterization.--The appropriate discharge board 
shall change the discharge characterization of a covered member to 
honorable if such change is determined to be appropriate after a review 
is conducted under subsection (d) pursuant to the criteria under 
subsection (b). A covered member, or the member's representative, may 
appeal a decision by the appropriate discharge board to not change the 
discharge characterization by using the regular appeals process of the 
board.
    (f) Change of Records.--For each covered member whose discharge 
characterization is changed under subsection (e), or for each covered 
member who was honorably discharged but whose DD-214 form reflects the 
sexual orientation of the member, the Secretary of Defense shall 
reissue to the member or the member's representative a revised DD-214 
form that reflects the following:
            (1) For each covered member discharged, the Separation 
        Code, Reentry Code, Narrative Code, and Separation Authority 
        shall not reflect the sexual orientation of the member and 
        shall be placed under secretarial authority. Any other similar 
        indication of the sexual orientation or reason for discharge 
        shall be removed or changed accordingly to be consistent with 
        this paragraph.
            (2) For each covered member whose discharge occurred prior 
        to the creation of general secretarial authority, the sections 
        of the DD-214 form referred to paragraph (1) shall be changed 
        to similarly reflect a universal authority with codes, 
        authorities, and language applicable at the time of discharge.
    (g) Status.--
            (1) In general.--Each covered member whose discharge 
        characterization is changed under subsection (e) shall be 
        treated without regard to the original discharge 
        characterization of the member, including for purposes of--
                    (A) benefits provided by the Federal Government to 
                an individual by reason of service in the Armed Forces; 
                and
                    (B) all recognitions and honors that the Secretary 
                of Defense provides to members of the Armed Forces.
            (2) Reinstatement.--In carrying out paragraph (1)(B), the 
        Secretary shall reinstate all recognitions and honors of a 
        covered member whose discharge characterization is changed 
        under subsection (e) that the Secretary withheld because of the 
        original discharge characterization of the member.
    (h) Definitions.--In this section:
            (1) The term ``appropriate discharge board'' means the 
        boards for correction of military records under section 1552 of 
        title 10, United States Code, or the discharge review boards 
        under section 1553 of such title, as the case may be.
            (2) The term ``covered member'' means any former member of 
        the Armed Forces who was discharged from the Armed Forces 
        because of the sexual orientation of the member.
            (3) The term ``discharge characterization'' means the 
        characterization under which a member of the Armed Forces is 
        discharged or released, including ``dishonorable'', 
        ``general'', ``other than honorable'', and ``honorable''.
            (4) The term ``Don't Ask Don't Tell'' means section 654 of 
        title 10, United States Code, as in effect before such section 
        was repealed pursuant to the Don't Ask, Don't Tell Repeal Act 
        of 2010 (Public Law 111-321).
            (5) The term ``representative'' means the surviving spouse, 
        next of kin, or legal representative of a covered member.

SEC. 3. REPORTS.

    (a) Review.--The Secretary of Defense shall conduct a review of the 
consistency and uniformity of the reviews conducted under section 2.
    (b) Reports.--Not later than 270 days after the date of the 
enactment of this Act, and each year thereafter for a four-year period, 
the Secretary shall submit to Congress a report on the reviews under 
subsection (a). Such reports shall include any comments or 
recommendations for continued actions.

SEC. 4. HISTORICAL REVIEW.

    The Secretary of each military department shall ensure that oral 
historians of the department--
            (1) review the facts and circumstances surrounding the 
        estimated 100,000 members of the Armed Forces discharged from 
        the Armed Forces between World War II and September 2011 
        because of the sexual orientation of the member; and
            (2) receive oral testimony of individuals who personally 
        experienced discrimination and discharge because of the actual 
        or perceived sexual orientation of the individual so that such 
        testimony may serve as an official record of these 
        discriminatory policies and their impact on American lives.
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