Senator: Re-naming of gay marriage leave is ‘no fix’
September 12, 2013
By Tom Philpott
A revised Defense Department policy intended to quell criticism of its August announcement of up to 10 days uncharged marriage leave to gay and lesbian service members assigned where they can’t legally marry fails to "fix" the issue of giving same-sex couples a special benefit, says Sen. Jim Inhofe of Oklahoma, ranking Republican on the Senate Armed Service Committee.
Defense Secretary Chuck Hagel notified Inhofe in a Sept. 6 letter that, given the senator’s concerns, Hagel had met with service secretaries and the Joint Chiefs to review the issue. Based on those discussions, Hagel told Inhofe, Jessica L. Wright, acting under secretary of defense for personnel and readiness, had issued "clarifying guidance" to the services.
The "marriage leave" provision previously inserted in the DoD Instruction 1327.06 on "Leave and Liberty Policy and Procedures" was removed. Instead, language was inserted that allows the services to grant "administrative absences" to any member wishing to marry who is assigned more than 100 miles away from an area where they legally can marry.
Hagel said the revised policy also addresses Inhofe’s concern that the department lacks authority to grant uncharged leave. This won’t be leave.
"There is long-standing precedent that commanders have discretionary authority to grant liberty to service members. An administrative absence to obtain a legal marriage falls within this authority," Hagel wrote.
"This clarification reinforces the department's commitment to treat all men and women who serve our country and their families equally," Hagel wrote. "It will ensure that military benefits will be available to all military spouses, regardless of whether they are in same-sex or opposite-sex marriages."
Inhofe called Hagel’s response "a disappointment" in a written statement an aide provided to Military Update.
"The department's decision to cancel the uncharged l eave benefit and substitute an ‘administrative absence’ provision did not fix the issue at hand. Not only does the Secretary fail to disclose his authority to create this administrative leave benefit but it still violates their own expressed policy…that they will ‘treat all military personnel equally.’"
Inhofe said he didn’t know of a situation in which heterosexual members would be eligible for administrative absence, presumably because they legally can marry in any state and overseas areas too. Indeed, a spokesman for Wright could not provide an example of a situation where a heterosexual member might be granted administrative absence to marry.
"I would refer you to the various states (and/or countries) who can discuss the specifics of their laws," Lt. Cmdr. Nate Christensen responded in an email. "From the Department's perspective, this policy simply recognizes that there are differences among the states regarding marriage qualifications and those differences sometimes work a hardship on military personnel."
Do any heterosexual members face such hardships? He couldn’t say.
The aide to Inhofe said the senator "has heard from many military members who believe" their 30 days’annual leave is sufficient to accommodate any marriage travel "no matter the member’s orientation."
The Senate Armed Services Committee will hold a confirmation hearing September 19 on several senior defense executives including Wright who is nominated to become under secretary of defense. She is expected to face questions on this policy from Inhofe and other conservatives.
"Eligible service members assigned within the Continental United States may be granted an administrative absence for a period of up to 7 days. Those assigned outside the Continental United States may be granted an administrative absence for a period of up to 10 days," Hagel explained.
Wright’s Sept. 4 memo does provide the services more detailed and restrictive guidance on how many days of absence they should grant to members unable to marry within 100 miles of current assignments. The number should depend on two factors.
One is the waiting period that a state or jurisdiction requires either to obtain a marriage license or, after obtaining a license, the wait required before a couple can marry. A second factor is travel time to and from a jurisdiction that allows the marriage. A maximum of two days’travel is authorized if a member is in the continental United States; a maximum of five days’travel is authorized if a member is assigned outside of ConUS.
Commands are to calculate days of administrative absences based not on where members want to marry but on the nearest jurisdictions where they can marry. Wright provides this example:
"A service member is assigned in CONUS to a duty station 150 miles from the closest jurisdiction that can grant a legal marriage. That jurisdiction requires a three-day waiting period. However, the member desires to travel 500 miles to a state [that] requires a five-day waiting period to obtain a legal marriage. The member may be granted administrative absence of four days –one day for travel (one-half day each way) and three days for the required waiting period."
If two service members are the couple wishing to marry, both may be granted extra days off and also can use earned leave in association with administrative absences to extend the length of their marriage trips.
Stephen L. Peters, president of American Military Partner Association , endorsed Wright’s clarifying memo, saying: "In effect, nothing has changed. Avoiding references to sexual orientation is completely acceptable and is a practical approach that silences the arguments of the critics."
The policy remains "an answer to the inequality that same-gender military couples face who are stationed in states that deny them the ability to marry, thereby denying them the ability to access military support and benefits in order to care for their family and focus on the mission first."
Heterosexuals won’t benefit, Peters conceded, because they already can marry anywhere, "which is the fundamental point of the policy."
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