Gays get extra ‘marriage leave’; C-123 Airman wins ‘AO’ claim

August 15, 2013

By Tom Philpott

Gay and lesbian service members assigned more than 100 miles from a state where same-sex marriages are legal, or assigned overseas, will be granted extra days of leave to travel where they can marry legally, Defense Secretary Chuck Hagel announced Wednesday.

The homosexual "marriage leave," effective immediately and allowable only once in a member’s career, won’t count against 30 days annual leave that every active duty member earns.

Non-chargeable leave of up to seven days will be granted if the gay or lesbian member or service couple who wants to wed is assigned within the continental United States. Those wishing to marry while posted outside of the continental U.S. will get up to 10 days of extra leave.

Hagel explained his reasoning for the extraordinary benefit in Aug. 13 memo to service secretaries which also directed that full military benefits be provided to married gay members, including spouse ID cards, by Sept. 3.

"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," Hagel wrote. So the department will "allow military personnel in such a relationship non-chargeable leave for the purpose of traveling to a jurisdiction where such a marriage may occur. This will provide accelerated access to the full range of benefits offered to military married couples throughout the department, and help level the playing field between opposite sex and same-sex couples seeking to be married."

Full benefits to married same-sex couples, to include TRICARE coverage, higher "with dependents" housing allowances and family separation allowances, are to be made retroactive to June 26, 2013, the date of the U.S. v Windsor Supreme Court decision that struck down as unconstitutional a portion of the Defense of Marriage Act.

That decision made gay and lesbians with state marriage licenses eligible for all federal benefits available to other married citizens. Military gay couples, if legally married before that decision, will be in line for back pay of higher allowances and spouse medical care reimbursements.

For gay and lesbian members married after June 26, spouse entitlements begin at date of marriage. Any claim to spouse entitlements before that date will be denied, Defense officials explained.

The extra leave benefit will not be made retroactive for gay or lesbian members who, following the Supreme Court decision, had used earned leave to travel to states where they could marry legally, said Navy Lt. Cmdr. Nate Christensen, a spokesman for the DoD office of personnel and readiness.

The new leave benefit drew criticism from conservatives on Capitol Hill, with one senator suggesting Hagel had over-stepped his authority.

"I am unaware of any legal authority for the DoD to grant 10 days of non-chargeable leave, a benefit that offers preferential treatment to same-sex marriage over heterosexual marriage," said Sen. Jim Inhofe (Okla.), ranking Republican on the Senate Armed Services Committee, on his website. "Military leave is granted by statute, and while there are special provisions in law for adoptions, child birth and emergency situations, to my knowledge there are no special provisions for marriage, same-sex or otherwise. As I have warned before, this administration is eroding our military's historical apolitical stance by using it as their activism arm for their liberal social agenda."

A valid marriage certificate is now the only obstacle same-sex couples have to clear to draw full benefits.

The Department of Defense "will work to make the same benefits available to all spouses, regardless of whether they are in same-sex or opposite-sex marriages, and will recognize all marriages that are valid in the place of celebration," explained Jessica L. Wright, acting undersecretary of defense for personnel and readiness, in a separate memo to the services.

UC-123K AIRMAN WINS AGENT ORANGE CLAIM

After a two-year battle with the Air Force and Department of Veterans Affairs, a group of ailing Air Force Reserve aviators has won a bittersweet victory: VA acknowledgment that one of their own likely is gravely ill due to post-Vietnam War exposure to toxic residue on UC-123K Provider aircraft, which were used as herbicide "spraybirds" during the war.

Lt. Col. Paul Bailey, a New Hampshire resident and cancer patient in hospice care, received notice this month that the VA had approved his disability claim, citing a "preponderance of evidence" suggesting exposure to herbicides, including Agent Orange, on C-123s he flew on missions after the war.

The decision is important because, for the first time, a VA regional office is recognizing that a C-123 crewmember was exposed to herbicides and should be compensated for ailments the VA presumes are linked to Agent Orange. Former C-123 veterans who previously won VA compensation did so on appeal after the VA had denied their initial claims. That meant payment delays in compensation and access to VA care for up to two years, said retired Maj. Wesley T. Carter, of McMinnville, Ore.

Carter, a former reserve C-123 aviator, has led an intensive bureaucratic fight on behalf of fellow crewmen since 2011. That year, as we reported at the time, he filed a complaint to the Air Force inspector general that health officials knew since 1996 of contamination aboard aircraft flown by reserve squadrons until 1982, and failed to warn them of the health risks.

Carter learned the government had stopped a contract to sell C-123s because of contamination and that the Air Force struggled over how to dispose of the aircraft. Even burying them could contaminate the ground. In 2010, the last of the aircraft were torn apart and melted down for disposal.

Reacting to Bailey’s award, Carter, who is rated 100-disabled from cancer and heart disease, said he felt "immense satisfaction and gratitude. But I'm tired and ill. Why did we have to work so hard to get our VA care? As sick or injured veterans, our focus needed to be on our medical needs and our families, not on years of struggle with the VA."

The Bailey claim decision, he said, "signals that regional offices can examine the full range of facts and reach areasonable conclusion on other exposure cases as Manchester (N.H.) VA Regional Office did."

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