[Congressional Record Volume 165, Number 98 (Wednesday, June 12, 2019)]
[Senate]
[Pages S3434-S3435]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 367. Mr. SCHATZ (for himself and Mrs. Gillibrand) submitted an
amendment intended to be proposed by him to the bill S. 1790, to
authorize appropriations for fiscal year 2020 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 D of title V, add the following:
PART V--OTHER DISCHARGE CHARACTERIZATION MATTERS
SEC. 565. SHORT TITLE.
This part may be cited as the ``Restore Honor to Service
Members Act''.
SEC. 565A. 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 has been made under
subsection (c), 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.
(3) Effective date of change of characterization for
veterans benefits.--For purposes of the provision of benefits
to which veterans are entitled under the laws administered by
the Secretary of Veterans Affairs to a covered member whose
discharge characterization is changed under subsection (e),
the date of discharge of the member from the Armed Forces
shall be deemed to be the effective date of the change of
discharge characterization under that subsection.
(4) Construction.--Nothing in this subsection shall be
construed to authorize any benefit to a covered member in
connection with the change of discharge characterization of
the member under subsection (e) for any period before the
effective date of the change of discharge characterization.
(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. 565B TIGER TEAM FOR OUTREACH TO FORMER MEMBERS.
(a) Sense of Congress.--It is the sense of Congress that--
(1) the mission of the Department of Defense is to provide
the military forces needed to deter war and to protect the
security of the United States;
(2) expanding outreach to veterans impacted by DADT or a
similar policy prior to the enactment of DADT is important to
closing a period of history harmful to the creed of
integrity, respect, and honor of the military;
(3) the Department is responsible for providing for the
review of a veteran's military record before the appropriate
discharge review board or, when more than 15 years has
passed, board of correction for military or naval records;
and
(4) the Secretary of Defense should, wherever possible,
coordinate and conduct outreach to impacted veterans through
the veterans community and networks, including through the
Department of Veterans Affairs and veterans service
organizations, to ensure that veterans understand the review
processes that are available to them for upgrading military
records.
(b) Tiger Team.--
(1) In general.--Not later than 30 days after the date of
the enactment of this Act, the Secretary of Defense shall
establish a team (commonly known as a ``tiger team'' and
referred to in this section as the ``Tiger
[[Page S3435]]
Team'') responsible for conducting outreach to build
awareness among former members of the Armed Forces of the
process established pursuant to section 565A for the review
of discharge characterizations by appropriate discharge
boards. The Tiger Team shall consist of appropriate personnel
of the Department of Defense assigned to the Tiger Team by
the Secretary for purposes of this section.
(2) Tiger team leader.--One of the persons assigned to the
Tiger Team under paragraph (1) shall be a senior-level
officer or employee of the Department who shall serve as the
lead official of the Tiger Team (in this section referred to
as the ``Tiger Team Leader'') and who shall be accountable
for the activities of the Tiger Team under this section,
(3) Report on composition.--Not later than 60 days after
the date of the enactment of this Act, the Secretary shall
submit to Congress a report setting forth the names of the
personnel of the Department assigned to the Tiger Team
pursuant to this subsection, including the positions to which
assigned. The report shall specify the name of the individual
assigned as Tiger Team Leader.
(c) Duties.--
(1) In general.--The Tiger Team shall conduct outreach to
build awareness among veterans of the process established
pursuant to section 565A for the review of discharge
characterizations by appropriate discharge boards.
(2) Collaboration.--In conducting activities under this
subsection, the Tiger Team Leader shall identify appropriate
external stakeholders with whom the Tiger Team shall work to
carry out such activities. Such stakeholders shall include
the following:
(A) The Secretary of Veterans Affairs.
(B) The Archivist of the United States.
(C) Representatives of veterans service organizations.
(D) Such other stakeholders as the Tiger Team Leader
considers appropriate.
(3) Initial report.--Not later than 180 days after the date
of the enactment of this Act, the Secretary of Defense shall
submit to Congress the following:
(A) A plan setting forth the following:
(i) A description of the manner in which the Secretary,
working through the Tiger Team and in collaboration with
external stakeholders described in paragraph (2), shall
identify individuals who meet the criteria in section 565A(b)
for review of discharge characterization.
(ii) A description of the manner in which the Secretary,
working through the Tiger Team and in collaboration with the
external stakeholders, shall improve outreach to individuals
who meet the criteria in section 565A(b) for review of
discharge characterization, including through--
(I) obtaining contact information on such individuals; and
(II) contacting such individuals on the process established
pursuant to section 565A for the review of discharge
characterizations.
(B) A description of the manner in which the work described
in clauses (i) and (ii) of subparagraph (A) will be carried
out, including an allocation of the work among the Tiger Team
and the external stakeholders.
(C) A schedule for the implementation, carrying out, and
completion of the plan required under subparagraph (A).
(D) A description of the additional funding, personnel, or
other resources of the Department required to carry out the
plan required under subparagraph (A), including any
modification of applicable statutory or administrative
authorities.
(4) Implementation of plan.--
(A) In general.--The Secretary shall implement and carry
out the plan submitted under subparagraph (A) of paragraph
(3) in accordance with the schedule submitted under
subparagraph (C) of that paragraph.
(B) Updates.--Not less frequently than once every 90 days
after the submittal of the report under paragraph (3), the
Tiger Team shall submit to Congress an update on the carrying
out of the plan submitted under subparagraph (A) of that
paragraph.
(5) Final report.--Not later than 3 years after the date of
the enactment of this Act, the Tiger Team shall submit to the
appropriate committees of Congress a final report on the
activities of the Tiger Team under this subsection. The
report shall set forth the following:
(A) The number of individuals discharged under DADT or a
similar policy prior to the enactment of DADT.
(B) The number of individuals described in subparagraph (A)
who availed themselves of a review of discharge
characterization (whether through discharge review or
correction of military records) through a process established
prior to the enactment of this Act.
(C) The number of individuals contacted through outreach
conducted pursuant to this section.
(D) The number of individuals described in subparagraph (A)
who availed themselves of a review of discharge
characterization through the process established pursuant to
section 565A.
(E) The number of individuals described in subparagraph (D)
whose review of discharge characterization resulted in a
change of characterization to honorable discharge.
(F) The total number of individuals described in
subparagraph (A), including individuals also covered by
subparagraph (E), whose review of discharge characterization
since September 20, 2011 (the date of repeal of DADT),
resulted in a change of characterization to honorable
discharge.
(6) Appropriate committees of congress defined.--In this
subsection, the term ``appropriate committees of Congress''
means--
(A) the Committee on Armed Services of the Senate; and
(B) the Committee on Armed Services of the House of
Representatives.
(d) Termination.--On the date that is 60 days after the
date on which the final report required by paragraph (5) is
submitted, the Secretary shall terminate the Tiger Team.
SEC. 565C REPORTS.
(a) Review.--The Secretary of Defense shall conduct a
review of the consistency and uniformity of the reviews
conducted under section 565A.
(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. 565D. 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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