The PJ Tatler

New Defense Policy Grants Some Marrying Gay Couples 'Bonus' Benefit, May Undermine State Marriage Laws

The Tatler has obtained Department of Defense memos, three dated August 13, 2013, and one dated August 16, spelling out how DoD will handle same-sex marrying couples. According to the memos, Defense says it will attempt to treat all married and marrying couples equally, but in a way that grants some gay couples a “bonus” benefit not available to heterosexual couples and single military members.

The U.S. Department of Defense under Defense Secretary Chuck Hagel has been quick to move on same-sex marriage in the wake of the Supreme Court decision striking down part of the Defense of Marriage Act. That act, passed by a bipartisan majority in Congress and signed into law by President Bill Clinton in 1996, allowed states to continue determining their own policies regarding same-sex marriage. Since that time, some states have legalized same-sex marriage, most by court rulings, while most have declined. The United States Supreme Court struck down Section 3 of the Defense of Marriage Act by a vote of 5-4 on June 26, 2013, leaving most of the law intact but eliminating a ban on extending federal benefits to gay couples as unconstitutional.

The first of the memos is signed by Defense Secretary Chuck Hagel. Titled “MEMORANDUM FOR SECRETARIES OF THE MILITARY DEPARTMENTS UNDER SECRETARY OF DEFENSE FOR PERSONNEL AND READINESS,” and with the subject line “Extending Benefits to the Same-Sex Spouses of Military Members,” Hagel’s memo says, “As the Supreme Court’s ruling has made it possible for same-sex couples to marry and be afforded benefits available to any military spouse and family, I have determined, consistent with the unanimous advice of the Joint Chiefs of Staff, that the extension of benefits to same-sex domestic partners of military members is no longer necessary to remedy the inequity that was caused by section 3 of the Defense of Marriage Act.”

As a senator from Nebraska, Hagel was in the bipartisan majority that voted to approve DOMA in 1996.

The memo continues: “We recognize that same-sex couples not stationed in a jurisdiction that permits same-sex marriage would have to travel to another jurisdiction to marry. Accordingly, the Department will implement policies to allow military personnel in such a relationship non-chargeable leave for the purpose of traveling to a jurisdiction where such a marriage will occur.”

Subsequent memos spell out the policy in detail or provide talking points to explain the policy change.

A memo from Acting Under Secretary of Defense for Personnel and Readiness Jessica L. Wright, subject line “Further Guidance on Extending Benefits to Same-Sex Spouses of Military Members,” echoes the Hagel memo, saying, “[E]ffective immediately, in recognition of the fact that many states do not recognize same-sex marriage, this memorandum supplements the policy language in reference Department of Defense Instruction 1327.06 ‘Leave and Liberty Policy and Procedures’ to authorize non-chargeable marriage leave where a Service member is part of a same-sex couple and is assigned to a duty station located more than 100 miles from a U.S. state (or the District of Columbia) that allows same-sex couples to get married.” Wright’s memo notes that DoD will “continue to monitor actions by states to recognize same-sex marriage and revise this policy if necessary.” The memo also includes the revision made to the Instruction:

(9) Marriage Leave for Same-sex Couples — The Secretary concerned may grant non-chargeable leave to Service members who are in same-sex relationships and are assigned to duty stations located more than 100 miles from a U.S. state (or the District of Columbia) that allows same-sex couples to marry, for travel to a state or jurisdiction that allows same-sex couples to be married. When two Service members who are a same-sex couple desire to be married, both members may be granted leave for same-sex couples if qualified.

Eligible Service members assigned within the Continental United States (CONUS) may be granted non-chargeable leave for a period of up to 7 days. Eligible Service members assigned outside CONUS may be granted non-chargeable leave for a period of up to 10 days. When both members of a same-sex couple are Service members, each member may be granted the applicable number of days based on his or her individual assignment location.

Extensions of this non-chargeable leave period for the convenience of the Service member(s) will be charged to the member’s leave account. Marriage leave may be granted only once during the career of a Service member.

Some military members and families may take issue with the use of “non-chargeable” leave for same-sex marriages:  “Leave we accrue in the military is recognized as having a monetary value and can actually be sold back and taxed upon separation from service if one has excess days,” said a military member who did not wish to be named. “Leave is part of our earnings and the amount of leave is often used as incentive to enlist. By giving gays 7 days of non-chargeable leave, the DoD is essentially giving a ‘bonus’ to gay soldiers that is not available to heterosexual couples.”

Additionally, the new policy appears to get around state laws that do not allow same-sex marriage. Military members must identify a home of record with the department for tax, residence and voting purposes. Most states do not recognize same-sex marriage, but military same-sex couples from those states that do not may be granted a one-time benefit enabling them to get married. In some situations, then, a same-sex couple stationed outside CONUS but whose home(s) of record are states that do not recognize same-sex marriage, could be granted a total of 20 days non-chargeable leave to get married.

Leave is one of the military’s most attractive benefits, and is routinely used by the department to recruit, reward and retain military members. Military members can often earn extra leave in a variety of ways, including extending overseas tours or by exemplary performance on the job. Yet Defense Secretary Hagel’s memo says in its concluding paragraph: “The Department of Defense remains committed to ensuring that all men and women who serve our country and their families are treated fairly and equally.”

As the Wright memo states, the new non-chargeable leave policy for same-sex couples is effective immediately.