Viewing page 8 of 30

This transcription has been completed. Contact us with corrections.

Case 1:18-cv-00011-DAD-EPG Document 1 Filed 01/02/18 Page 8 of 13

Cemetery with full military funeral honors like other service members. Before she passes, Ms. James would like these injustices to be corrected.

STATUTORY AND REGULATORY BACKGROUND

33.  The Air Force discharged Ms. James on March 11, 1955 and the Air Force Reserves on August 17, 1955. At the time, Chapter 2, Section B of Air Force Manual 39-12 governed discharges based on homosexuality.
34.  Pursuant to AFM 39-12, homosexuality was grounds for an "undesirable" discharge, otherwise known as discharge "by reason of undesirable habits and traits of character."
35.  A veteran's discharge status affects eligibility for various benefits and support services administered by the VA as well as by private organizations that provide services to veterans. Veterans without "honorable" discharge status are generally ineligible to receive disability, employment, housing, education, burial and other benefits.
36.  Congress has authorized the Secretary of the Air Force, acting through the AFBCMR, to correct the discharge of any former member of the Air Force. 10 U.S.C.§ 1552.
37.  An Air Force veteran may request a discharge upgrade from the AFBCMR to correct an error or injustice in her discharge characterization. 32 C.F. R. § 865.2. The application ordinarily must be made within three years of discovery of the injustice, but the AFBCMR may waive the limitations period "in the interest of justice." Id. at §865.3.
38.  In the 1994 National Defense Authorization Act, Congress prohibited, for the first time, discrimination against closeted homosexual members of the Armed Services and prohibited the questioning of service members regarding their sexuality.  Pub. L. No. 103-160 § 571, 107 Stat. 1547 (1993). This policy was often called "Don't Ask, Don't Tell" (DADT).
39.  Between 1994 and 2010, federal law stated: "The prohibition against homosexual conduct is a longstanding element of military law that continues to be necessary in the unique circumstances of military service." 10 U.S.C. § 654(a)(13)(2000).

7     Case No.

Complaint