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NEW YORK – The American Civil Liberties Union and the ACLU of New Mexico filed a class action lawsuit today challenging the Defense Department's discriminatory policy of cutting in half the separation pay of service members who have been honorably discharged for being gay. The separation pay policy is not part of the "Don't Ask, Don't Tell" statute, and can be changed without congressional approval.
"By denying servicemen and women full separation pay, the military is needlessly compounding the discrimination perpetuated by 'Don't Ask, Don't Tell,'" said Joshua Block, staff attorney with the ACLU Lesbian, Gay, Bisexual and Transgender Project. "The Obama administration has repeatedly said the 'Don't Ask, Don't Tell' statute is wrong, but that it needs to work with Congress to repeal the law. But the separation pay issue is entirely within the administration's control. The administration can at least take a preliminary step toward backing up its rhetoric with action by addressing this issue promptly and protecting gay and lesbian service members from needless additional discrimination."
Federal law entitles service members to separation pay if they have been involuntarily discharged from the military after completing at least six years of service. But in 1991, the Defense Department adopted an internal policy that automatically cuts a former service member's separation pay in half if the service member is discharged because of "homosexuality." The separation pay policy was adopted two years before Congress enacted the "Don't Ask, Don't Tell" statute. The ACLU and the Servicemembers Legal Defense Network contacted the Defense Department in November 2009 to request that the separation pay policy be revised to eliminate the discrimination against gay and lesbian service members, but the department has refused to do so.
Today's class action lawsuit was filed in the U.S. Court of Federal Claims. The lawsuit was brought on behalf of all service members involuntarily discharged in the past six years who received honorable discharges and were otherwise eligible for full separation pay but had that pay cut in half because of "homosexuality." The ACLU estimates that over 100 former service members will qualify as part of the class of plaintiffs.
The lead plaintiff in the case is Richard Collins, a former staff sergeant in the Air Force who served for nine years until he was discharged under "Don't Ask, Don't Tell." Collins was stationed at Cannon Air Force Base in New Mexico when two civilian co-workers observed him exchange a kiss with his civilian boyfriend and reported it to his superiors. The kiss occurred while Collins and his boyfriend were in a car stopped at an intersection 10 miles off base and while Collins was off duty and out of uniform. Collins received an honorable discharge from the Air Force but discovered after the discharge had been completed that his separation pay had been cut in half on the grounds of "homosexuality."
"After nine years of honorable service, it's not fair that I should be deprived of the same benefits given to other dedicated service members who are adjusting to civilian life," said Collins. "I hope that the Defense Department will adjust its policy and show some justice to anyone who has been discharged from the military under 'Don't Ask, Don't Tell.'"
"Mr. Collins's case is a perfect example of how discrimination on the basis of sexual orientation is unfair and unconstitutional," said Laura Ives, a staff attorney for the ACLU of New Mexico. "Mr. Collins's sexual orientation did not prevent him from serving his country ably and honorably. The least the government can do is provide him with the same separation pay it provides other honorably discharged service members."
Attorneys on the case, Collins v. United States, include Ives and Matt Garcia of the ACLU of New Mexico; Block and Leslie Cooper of the ACLU LGBT Project; George Bach, cooperating attorney with the ACLU of New Mexico and Sara Berger of Freedman Boyd Hollander Goldberg Ives and Duncan, PA.
For more on this case, please visit: www.aclu.org/lgbt-rights/collins-v-united-states-class-action-military-separation-pay