With rainbow lighting, the White House celebrates the Supreme Court's 2015 equal marriage rulingMolly Riley/AFP/Getty
This story was originally published by The War Horse and is republished here with permission.
Andrew Espinosa was in his office in Boulder, Colorado, when the first message popped up on the Air Force veteran’s phone: Andy, is this finally the resolution you’ve been working for?
President Biden had just announced he was “righting a historic wrong” by issuing pardons for gay veterans convicted of consensual sex, and Espinosa says the text messages didn’t stop for hours.
“I’ve got shivers,” Mona McGuire, an Army veteran, told The War Horse on that June 26 morning, celebrating the news from her home in suburban Milwaukee in between interviews with CNN and the BBC. “I feel relief.”
More than 25 years ago, both McGuire and Espinosa were kicked out of the military for being gay. Finally, it appeared, they would get a long-overdue reprieve and apology—and possibly qualify for health care and other veterans benefits they have been denied because of their “bad paper” discharges.
Then reality struck. In the weeks since the president’s historic gesture, McGuire and Espinosa have dug into the details and learned they and thousands of other veterans are unlikely to qualify under the narrow confines of Biden’s pardons. The whipsaw of emotions has renewed the sting of exclusion that has followed them for decades after their military service was cut short.
It’s “another kick in the gut,” says Espinosa.
The two are among about 100,000 veterans pushed out of the military for reasons related to their sexual orientation from World War II through the repeal of the “don’t ask, don’t tell” policy in 2011. Thirteen years after that repeal, Biden’s pardons invigorated advocates and LGBTQ veterans who continue to try to undo the harms inflicted on gay veterans, including, for some, imprisonment and convictions that still mar their records today.
But it turns out there is a catch: Only those convicted in a military court of non-forcible sodomy qualify for a pardon, and neither the White House nor the Defense Department could tell The War Horse exactly how many veterans that includes—or why it excludes so many others.
It doesn’t include McGuire, who became a symbol of the injustice stemming from the military’s discriminatory past after sharing her story with The War Horse days before Biden’s announcement. The Milwaukee mom was never convicted in a military court because she opted to avoid court-martial by admitting to a lesbian relationship and accepting a bad discharge. The pardons will do nothing to fix her record.
What’s also worrying advocates is that the presidential election is only four months away, and a return to the White House for Donald Trump could halt the processing of pardon applications altogether, experts say.
Amid the euphoria of Biden’s announcement, the White House estimated thousands of veterans would benefit from his pardons, allowing them to upgrade their discharges and receive veterans benefits they’d been locked out of. But Michael Wishnie, a professor at Yale Law School and veteran law expert, is wary.
“There’s a real danger that no one benefits,” he says.
Mass Pardons Are Rare
By the time the text messages stopped, and Espinosa returned his focus to his real estate job, he had already concluded that the pardon didn’t apply to him.
He joined the Air Force in the late 1980s with the hopes of eventually becoming an astronaut. In 1993, the Air Force captain was court-martialed for an “indecent assault.”
The incident occurred, he said, in the blurry early morning hours after a party while he was stationed in Turkey. Espinosa was accused of touching a fellow airman’s leg and kissing him on the cheek as they watched the playoffs. Espinosa maintains his innocence and believes he was targeted because of homophobia in the military and his superior officers’ desire to get rid of him.
Espinosa, who first told his story to CBS News last year, had a letter written to his mother from a military official that explains “homosexuality is a factor in this case” but that the key factor is his harassment of another airman. Espinosa says he’s largely moved on from his dismissal from the military, but the conviction prevented him from getting a job with the government as a census taker, and he tried and failed to receive a discharge upgrade in the wake of the “don’t ask, don’t tell” repeal. Until 1993, the military prohibited gay and lesbian people from serving, but under President Clinton, “don’t ask, don’t tell” allowed gay people to serve as long as their sexuality remained hidden.
After reading the fine print of the pardon, Espinosa responded to all those congratulatory text messages from childhood and military friends, thanking them for their support but telling them he would not receive any of Biden’s goodwill.
“If it helps one person, it’s good,” says Espinosa. “I wish it would’ve been explained more.”
What adds to the confusion is that rather than granting an individual pardon that names people specifically, Biden’s clemency action was bestowed upon a group of unnamed people. Such mass pardons are rare, but not unheard of. In 1977, for instance, President Jimmy Carter pardoned hundreds of thousands of Vietnam War draft dodgers.
Wishnie says advocates and veterans should be proud that their persistence likely encouraged Biden’s pardon. Still, Wishnie is “very disappointed that it is such a narrow program.”
Biden could have expanded his pardon to more veterans, he said, including those who were convicted for charges like “indecent acts” due to their sexual orientation. The pardon also could have helped veterans like McGuire.
In 1988, while stationed in West Germany, McGuire was outed, arrested, and forced to choose between a court-martial and possible prison time or a less than honorable discharge “in lieu of court-martial” if she admitted her lesbian relationship. She chose the latter.
The discharge has prevented her from accessing veterans benefits, and, though she tried to upgrade her discharge last year, the Army’s review board denied her request because as a 20-year-old under interrogation, she admitted guilt to charges of sodomy and an indecent act.
McGuire thought Biden’s pardon might render her admission obsolete, particularly since the president acknowledged the unjust criminalization of gay service members. But, she says, “I’m just kind of in the same place, in the same position I was for the last 37 years.”
“These Things Aren’t Slam Dunks”
When Steve Marose learned of the president’s announcement, it sounded “glorious.” Justice, at last. He jumped into action, and the Air Force veteran, who lives in Seattle, sent in his pardon application last week.
In 1990, Marose was a second lieutenant who followed his father’s footsteps into the Air Force. He was a proud officer and says he was good at his job. But for a few months he lived with another airman and was eventually convicted of three counts of consensual sodomy. He spent two years in federal prison at Fort Leavenworth. But Marose was also convicted of conduct unbecoming, a charge not included in the pardon.
“I’ve always tried to be optimistic,” he says. But “these things aren’t slam dunks.”
A White House spokesperson did not respond to requests from The War Horse to explain why the pardons excluded many LGBTQ veterans.
There is another route for those who don’t qualify, a Department of Defense spokesperson said. LGBTQ veterans can submit a standard Department of Justice pardon application to the secretary of the military branch in which they were convicted. But a decision can take years.
Wishnie and other veterans advocates say the Defense Department could have spared LGBTQ veterans the confusion over how far the pardons extend.
“For years, people have been asking DOD to do the work themself, to identify veterans discharged for being gay, whether they were court-martialed or not,” Wishnie says. “And for years, DOD has absolutely resisted.”
As the pardon stands, veterans like Marose who think they are eligible must apply, wait for an answer—which could take months—and then go through a separate process to upgrade their less than honorable or dishonorable discharges.
“They are leaving the onus on veterans,” Wishnie says, adding that such a multistep process will likely deter many veterans who could take advantage of the pardon.
What Happens Now?
If Marose’s application is approved before November’s election, it will remain intact no matter who wins the White House. If Donald Trump prevails, however, it’s possible that the new administration could slow or stop the process of receiving a pardon certificate that would allow veterans to access benefits, Wishnie says. No one from the Trump campaign responded to questions from The War Horse about whether a Trump White House would follow through on Biden’s pledge.
Presidents often issue pardons at the end of their terms, says Graham Dodds, an expert on US politics at Concordia University in Montreal. It’s unclear why Biden decided to act on this particular issue now.
It could be an act of reconciliation, Dodds says, much like Canada, in 2017, apologized for past discrimination against LGBTQ people. But politics, he says, can’t be discounted.
“While the LGBTQ community is not monolithic, it does account for some 7% of the electorate,” Dodds says. “In a close election every vote might well matter.”
Still, the military didn’t treat each gay veteran in a uniform way. Policies shifted over the years, and a commander had the power to choose among quietly dismissing an LGBTQ service member with an honorable discharge, prosecuting them, or scaring them into accepting a bad discharge to avoid a court-martial. Because of that, Dodds says, this pardon is somewhat “messy.”
In McGuire’s case, she was not convicted or imprisoned. But she said it felt like she was.
After her arrest in May 1988, she waited three months for her discharge paperwork. She was stripped of her security clearance and forced to clean the men’s latrines. Soldiers whispered about her and three other women who were being kicked out for homosexuality. They were treated, she says, “not even like second-class humans.”
McGuire didn’t walk around alone out of fear of getting beat up.
In August 1988, she was finally handed her orders to leave. Her dream of a career in the Army crumpled, and her heart broke on the spot. “I was crying and breathing so hard I couldn’t talk,” she says. “I was devastated.”
All those years ago, as a 20-year-old soldier, McGuire said she believed that taking responsibility and walking away from the Army would pay off in the long run.
“It’s just kind of ironic that those who were actually convicted and possibly spent time in prison are the ones eligible,” she says. “But not me.”
The War Horse is an award-winning nonprofit newsroom reporting on the human impact of military service. Read more at thewarhorse.org.
