Suit Seeks Greater Separation Pay for Gay Military Members

By Nathan Koppel

Two days after its repeal, the military’s don’t ask, don’t tell policy was again in the news yesterday, as the U.S. Court of Federal Claims considered a lawsuit challenging severance pay for gay military members.

The Defense Department awards separation pay to military personnel honorably discharged after at least six years of service, but the department cuts separation pay in half if service members are discharged because of their homosexuality. A class action suit filed last year by the ACLU contends that the severance-pay policy is unconstitutional. The suit claims 142 discharged veterans have lost about $2.1 million as a result of the policy.

The defense department has moved to dismiss the suit contending that the court has no jurisdiction to second-guess the military’s severance-pay practices. “The military is entitled to significant deference in crafting and implementing its policies,” the government contended in its motion to dismiss, which was filed in May.

The severance-pay practice at issue was implemented before Congress enacted “don’t ask,” which barred gays and lesbians from serving openly in the military. Still, the don’t ask policy featured prominently at a hearing yesterday before Federal Claims Court Judge Christine Odell Cook Miller.

The judge questioned why the military would not agree to award full separation pay to gay military members in light of the repeal of don’t ask, the Associated Press reports.

“Two days after the policy goes into effect eliminating ‘don’t ask, don’t tell,’ here we are,” she said as she took the bench, according to AP. “I would consider this to be an unenviable argument to have at this time,” she told the government’s attorney.

At the hearing, Justice Department lawyer L. Misha Preheim argued that the defense secretary has sole discretion over separation pay and the court cannot rewrite military regulations, AP reports. The Law Blog has sought comment from Preheim

Judge Miller said she would issue a full ruling in October on the government’s motion to dismiss the suit, but she indicated that her preliminary decision was to deny the motion and to allow the case to proceed to trial.

“I can’t believe this is something the military wants to revisit now,” she said.