Sailors decorate the mess decks in honor of Pride month aboard the Arleigh Burke-class guided missile destroyer. USS Jason Dunham (DDG 109) in the Atlantic Ocean, June 16, 2022. Jason Dunham operates in the Atlantic Ocean in support of naval operations to maintain maritime stability and security to ensure access, deter aggression, and advance U.S., allied, and partner interests . | U.S. Navy photo by Mass Communications Specialist 3rd Class Theoplis Stewart II
WASHINGTON — President Joe Biden will pardon U.S. military veterans 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 that thousands of veterans have been convicted over decades and may be eligible.
The sentences were carried out under a military law banning certain forms of sex from May 1951 to December 2013.
When asked why Biden chose to pardon the veterans now, 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 reflects the values that making us an exceptional nation and maintaining the best fighting force in the world.”
The officials continued that Biden “is taking this historic step to ensure we uphold our sacred obligation to care for all service members, veterans and their families.”
Biden said in a statement Wednesday that he was “righting a historic injustice by using my pardon power to pardon many former service members convicted simply for being themselves.”
“Our nation’s military personnel are on the front lines of freedom, risking their lives to defend our country,” Biden said in the written statement.
“Despite their courage and great sacrifice, thousands of LGBTQI+ service members have been forced out of the military because of their sexual orientation or gender identity. Some of these patriotic Americans were court-martialed and bore the burden of this great injustice for decades.”
Administration officials said guidelines will be posted on the Defense Department’s website so veterans can request proof of their eligibility for a pardon under the proclamation.
Veterans can then use the certificate of proof to request a discharge upgrade from their respective military branch.
Military law and consensual sex
Biden’s proclamation on Wednesday ratifies pardons for all veterans, living or dead, discharged or convicted by military court under Article 125 of the Uniform Code of Military Justice for consensual sexual relations.
While the law prohibited forceful sexual acts with minors and animals, Article 125 also prohibited “unnatural carnal copulation” – defined as oral or anal sex – with another person of the same or opposite sex.
The military code was amended in 2013 to indicate that only sexual acts involving violence that are not performed by mutual consent can be criminalized.
Administration officials acknowledge that Section 125 is not the only military law targeting LGBTQ+ service members.
Senior administration officials told reporters that while the proclamation focuses solely on convictions under Section 125, the Justice Department has been instructed to flag all other clemency requests for veterans punished under other military statutes for sexual orientation or gender identity.
The U.S. military has a decades-long history of anti-LGBTQ+ policies. The military outright banned gay and lesbian service members during World War II.
In 1993, President Bill Clinton instituted a “Don’t Ask, Don’t Tell” policy, effectively allowing LGBTQ+ members to serve in the military as long as they did not reveal their sexual orientation.
The policy was repealed under President Barack Obama.
Days after his inauguration, Biden issued an executive order overturning the ban on transgender service members.
Forgive power
The Constitution gives the president several ways to pardon crimes against the United States. The President may fully pardon or lift penalties without reservation for individuals or groups of people; commute or reduce an offender’s sentence; or grant a reprieve, which effectively postpones the offender’s sentence.
Pardon requests are processed through the Department of Justice’s Office of the Pardon Attorney.
Biden issued sweeping pardons for marijuana offenses in October 2022 and December 2023.
The Department of Justice publishes clemency statistics for every presidential administration, dating back to William McKinley, at Justice.gov/pardon/clemency-statistics.
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