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S. 1991: Restore Honor to Service Members Act

The text of the bill below is as of Jun 26, 2019 (Introduced).


II

116th CONGRESS

1st Session

S. 1991

IN THE SENATE OF THE UNITED STATES

June 26, 2019

(for himself, Mrs. Gillibrand, Ms. Baldwin, Mr. Bennet, Mr. Brown, Mr. Cardin, Mr. Carper, Mr. Casey, Mr. Coons, Ms. Duckworth, Mr. Durbin, Ms. Harris, Ms. Hirono, Ms. Klobuchar, Mr. Leahy, Mr. Markey, Mr. Menendez, Mr. Merkley, Mr. Murphy, Mrs. Shaheen, Ms. Stabenow, Mr. Tester, Mr. Udall, Ms. Warren, Mr. Whitehouse, Mr. Wyden, Mrs. Feinstein, and Mr. Peters) 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.

1.

Short title

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

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 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.

3.

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 Team) responsible for conducting outreach to build awareness among former members of the Armed Forces of the process established pursuant to section 2 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 2 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 2(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 2(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 2 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 2.

(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.

4.

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.

5.

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.