[Congressional Record Volume 164, Number 96 (Monday, June 11, 2018)]
[Senate]
[Page S3626]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 2621. Mr. SCHATZ submitted an amendment intended to be proposed by
him to the bill H.R. 5515, to authorize appropriations for fiscal year
2019 for military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:
At the end of subtitle C of title V, add the following:
SEC. 537. 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.
(i) Reports.--
(1) Review.--The Secretary of Defense shall conduct a
review of the consistency and uniformity of the reviews
conducted under subsections (a) through (g).
(2) 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 paragraph (1). Such reports shall
include any comments or recommendations for continued
actions.
(j) 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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