Sailors decorate the mess decks in observance of Pride month aboard the Arleigh Burke-class guided-missile destroyer USS Jason Dunham in the Atlantic Ocean on June 16, 2022. (U.S. Navy photo by Mass Communication Specialist 3rd Class Theoplis Stewart II)
WASHINGTON — President Joe Biden will pardon U.S. military veterans who were discharged or convicted under military law for consensual same-sex relations, the administration announced Wednesday.
The White House could not provide an exact number of veterans who will be pardoned, but the administration estimates thousands were convicted over several decades and may be eligible.
The convictions were enforced under a military law that prohibited certain types of sex from May 1951 to December 2013.
When asked why Biden chose now to pardon the veterans, senior administration officials told reporters on a call Tuesday that Biden is “committed to doing everything he can to ensure that the culture of the armed forces reflect the values that make us an exceptional nation and to maintaining the finest fighting force in the world.”
The officials continued that Biden is “taking this historic step to ensure that we live up to our sacred obligation to care for all service members, veterans and their families.”
Biden said in a statement Wednesday that he is “righting an historic wrong by using my clemency authority to pardon many former service members who were convicted simply for being themselves.”
“Our Nation’s service members stand on the frontlines of freedom, and risk their lives in order to defend our country,” Biden said in the written statement.
“Despite their courage and great sacrifice, thousands of LGBTQI+ service members were forced out of the military because of their sexual orientation or gender identity. Some of these patriotic Americans were subject to court-martial, and have carried the burden of this great injustice for decades.”
Administration officials said guidance will be posted on the Department of Defense website for veterans to apply for proof they are eligible for pardon under the proclamation.
Veterans can then use the certificate of proof to apply to their respective military branch for a discharge upgrade.
Military law and consensual sex
Biden’s Wednesday proclamation effectuates the pardons for any veterans, alive or deceased, who were discharged or convicted in military court under Article 125 of the Uniform Code of Military Justice for consensual sexual relationships.
While the law prohibited forceful sex acts with minors and animals, Article 125 also banned “unnatural carnal copulation” — defined as oral or anal sex — with another person of the same or opposite sex.
The military code was updated in 2013 to reflect that only forceful, not consensual, sexual acts could be penalized.
Administration officials acknowledged that Article 125 is not the only military law that targeted LGBTQ+ service members.
Senior administration officials told reporters that while the proclamation is narrowly focused on convictions under Article 125, the Department of Justice has been instructed to flag any other clemency applications for veterans penalized for sexual orientation or gender identity under other military statutes.
The U.S. military has a decades-long history of anti-LGBTQ+ policies. The armed forces outright banned gay and lesbian service members during World War II.
In 1993, President Bill Clinton set a “Don’t Ask, Don’t Tell” policy, essentially allowing LGBTQ+ members to serve in the military, so long as they didn’t make their sexual orientation public.
The policy was repealed under President Barack Obama.
Days after his inauguration, Biden issued an executive order overturning a ban on transgender service members.
Pardon power
The Constitution empowers the president with several ways to forgive crimes against the United States. The president can fully pardon, or lift, punishments without qualification for individuals or groups of people; commute, or reduce, an offender’s sentence; or issue a reprieve, basically delaying an offender’s sentence.
Clemency applications are processed through the Justice Department’s Office of the Pardon Attorney.
Biden issued sweeping pardons in October 2022 and December 2023 for marijuana offenses.
The Justice Department posts clemency statistics for each presidential administration dating back to William McKinley at justice.gov/pardon/clemency-statistics.
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