The Truth About Separation Pay for Gay Servicemembers

There's a new meme in the clawing community determined to yell at the President over everything: the Obama administration hates gay troops! Yes, still, even after the President succeeded in pushing through a legislative repeal of Don't Ask, Don't Tell, stopped defending the Defense of Marriage Act in Court, made hospital visitation rights universal, enacted hate crimes legislation and built up an impressive record of accomplishments on gay rights.

The latest salvo comes in the form of publicizing a lawsuit by the ACLU and service members discharged for being gay. Soldiers, when involuntarily separated but getting an honorable discharge, are entitled to separation pay. The Department of Defense cuts this separation pay in half for several causes of separation, including homosexuality. There is no doubt that this is an outrage. Gay soldiers, fully capable and willing to serve if given the chance, should not see their separation pay cut in half simply for the crime of being gay. Morally, there is no room for equivocation there.

There is, however, a great deal that is not understood about this policy and how the DADT repeal will affect it, including, it would seem, by many who are trying to make this a political football. Scott Wooledge (clarknt67) makes an insidious accusation that the DOD, and in defending it, the DOJ, has somehow equated gay soldiers with drug addicts and criminals.

Thanks administration for mentioning gays in the Mother's Day proclamation. That was swell. Even if our service to the country is only worth half as much as straight people's. Or the same as drug addicts and criminals.
Now yes, the same part of DOD regulations that specify half separation pay for soldiers separated for being gay also specify the same for soldiers separated for drug addiction and criminal activity. However, that is because the section is about who gets half separation pay - not about equating anyone with anyone else. In other words, it's a list of categories under which soldiers receive half pay for separation. So using that to say the regulations or the administration is equating gays with drug addicts and criminals is like saying simply because an agency lists both water and gasoline as "liquids," that it is saying water is the same as gasoline.

If you read Wooledge's piece, his tone is far more elated about finding another bludgeon to bash President Obama with than subdued by the moral tragedy of paying separated gay veterans half separation pay. To Wooledge, this does not seem to be about the issue itself (to the ACLU, however, it does). It seems to be a celebration that he found something to beat up Obama with, rather than a somber take on a moral wrong.

But let's dig a little deep. It all opened up when the ACLU filed a suit on behalf of 142 members discharged for homosexuality and who received (or are receiving) 50% separation pay. I went digging for the actual policy and correspondence between the ACLU and the DOD. In their original letter in July of 2010, the ACLU wrote to DOD:
We write on behalf of the ACLU and Servicemembers Legal Defense Network to ask that the Department of Defense (the "Department"), as part of its ongoing review of military policy related to "Don't Ask, Don't Tell," revise DoD Instruction No. 1332.29 to eliminate "homosexuality" or "homosexual conduct" from the list of conditions that trigger an automatic reduction in separation pay for service members with honorable discharges who are involuntarily separated from service.
My curiosity as to why the ACLU asking for this to be revisited as part of the DADT revisions while also simultaneously pointing out that the regulation is completely unrelated to DADT aside,  I wanted to look up DOD Instruction No. 1332.29. Read through it and you will set that there are two types of separation pay: full pay and half pay. The critical distinction between service members eligible for full pay and half pay is whether or not those servicemembers remain fully qualified for retention.Here is the pertinent section to this case:
3.2.3.1.  The member is not fully qualified for retention and is denied reenlistment or continuation by the Military Service concerned as provided for in reference (e) or DoD Directive 1332.30 (reference (f)) under any of the following conditions:
  • 3.2.3.1.1.  Expiration of service obligation.
  • 3.2.3.1.2.  Selected changes in service obligation.
  • 3.2.3.1.3.  Convenience of the Government.
  • 3.2.3.1.4.  Homosexuality.
  • 3.2.3.1.5.  Drug abuse rehabilitation failure.
  • 3.2.3.1.6.  Alcohol abuse rehabilitation failure.
  • 3.2.3.1.7.  Security.
It is a shame for this country that prior to and after DADT, soldiers discovered to be gay did not remain qualified for retention (and will not be until DADT repeal is implemented fully). But the truth is that it is that reason - that our laws banned service by gays, then by anyone discovered to be gay - the disqualification from retention that makes soldiers eligible for 50% separation pay rather than full separation pay. As you can clearly see, drug abuse and criminal activity aren't the only other reasons listed under this section. One of them is simply "convenience of government," - meaning, the government, at will, can declare you not qualified for retention and not have to pay full separation pay.

For this next part of the discussion, keep in mind two things: the half separation pay applies, for the purposes of this part, to servicemembers only if they are involuntarily separated and are separated because they are gay. This is where Wooledge made a terribly dumb statement in the comments section of the above-linked post of his own.
Or maybe they just want to preserve the policy. Nothing in DADT repeal compels they change it. Maybe it presents a good savings to the DOD to cut gay Servicemembers separation pay in half. Smart business.
This is utterly stupid. Once the repeal of Don't Ask, Don't Tell is fully implemented (which, by the way, is on track), no soldier will any longer be involuntarily separated for being gay, and they certainly would not be disqualified for retention for that reason, making the whole question moot. DADT repeal, therefore, automatically solves this problem by eliminating the circumstance (homosexuality) under which an involuntary separation might occur. To not understand this simple fact is to utterly lack logical cohesion and legislative comprehension.

I admire the ACLU defending our brave soldiers and fighting on their behalf. I also believe that it would be a moral thing to do to to pay the gay servicemembers their full separation pay - but it is also true that it would represent a retroactive change in policy that is generally not the way we make laws or implement regulations. Still, the circumstances are such - where we are talking about giving those who served honorably full separation pay and not deny it to them simply because they are gay - it's worth it to do this.

That being said, DADT repeal will take care of this for future cases (which there won't be any), and the president usually does not get involved in every rulemaking decision of DOD. But even if one is disappointed that the White House has not intervened (and thus the DOJ is doing what in the absence of a presidential directive it does, defend other departments), this issue cannot be looked at without taking into account the ending of the injustice that kept gay Americans from serving, and then from serving openly. The fact of the matter is that when thanks to a President's leadership, we are proceeding to finally eliminate discrimination against gay servicemembers altogether), it is more than unfair to raise up this lack of intervention in this case as evidence that the President does not care about gay soldiers.

What the likes of Wooledge are trying to do is to paint the President as anti-gay, just as gay Americans have recognized the President's leadership on our issues and gay donors have started to flock to the President. This comes from people who have been hell bent from Day One to try to undermine President Obama. I believe that there is a sense in the corners of the Professional Left that they are losing their power - which, evidently, is only wielded in a negative manner, by beating up on the President and helping lower Democratic turnout - and they're losing it fast in the face of progressives fast catching onto this President's accomplishments as well as the alternative's disasterous governing model.