With support from Yale Law School students and faculty, a 91-year-old veteran filed a federal lawsuit earlier this month to change his Air Force discharge status to “honorable” after he was discharged as “undesirable” in 1948 for being gay.
The veteran, Hubert Edward Spires, is being represented by the Veterans Legal Services Clinic at the Law School. The legal team consists of four student interns from the Law School who are supervised by Aaron Wenzloff and Michael Wishnie ’87 LAW ’93, both of whom are Law School professors.
“We think it’s a really important case,” Wenzloff said. “Despite the fact that we now have an open military that allows people to serve despite their sexual orientation, there’s a long history of discrimination against people who are gay and lesbian.”
A veteran’s discharge status affects eligibility for various benefits provided by the U.S. Department of Veteran’s Affairs. With an “undesirable” discharge — today known as “other than honorable”— Spires is unable to receive benefits such as financial assistance for housing, disability and burial.
Erin Baldwin LAW ’17, one of the student interns representing Spires, said the case was filed by Wishnie, but the interns are doing the legal work.
According to the lawsuit, which was filed against the Secretary of the Air Force Deborah Lee James, Spires became eligible for a discharge upgrade in 2011 when the under secretary of defense issued a memorandum implementing Congress’ 2010 repeal of the “Don’t Ask, Don’t Tell” law for the purpose of discharge upgrades and record correction. That law had previously prohibited gays and lesbians from serving openly in the military.
The lawsuit states that since 2011, Spires has submitted two discharge upgrade applications, both of which were denied by the Air Force Board for Corrections of Military Records on the grounds that they could not locate Spires’ records due to a 1973 fire at the National Personnel Records Center.
The lawsuit alleges that the Air Force’s failure to grant Spires a discharge upgrade is a violation of both the Administrative Procedure Act and the due process clause of the Fifth Amendment.
At a press conference on Nov. 18, the day the lawsuit was filed, Sen. Richard Blumenthal LAW ’73, D-Conn., condemned the Air Force’s decision to deny Spires a discharge upgrade.
“Mr. Spires served our country with dignity and distinction and his record should reflect that,” Blumenthal said. “The veterans who served during a period of time when discrimination based on sexual orientation was the most severe also face the obstacle of lost or destroyed records. This is not an excuse for denying them their right to an honorable discharge.”
The lawsuit adds that Spires is in poor health and nearly died “several weeks ago” while receiving intensive care for pneumonia. According to the suit, Spires wishes to be buried with military honors, which is only possible with a discharge upgrade.
Wenzloff added that gay and lesbian service members should be able to upgrade their discharge statuses to show that they honorably served in the military.
“For this population of people who were discharged long before the repeal of ‘Don’t Ask, Don’t Tell,’ it’s not enough to just say that we’ll fix the problem now,” Wenzloff said. “For somebody like Mr. Spires, he hasn’t seen the benefits.”
The role of the Veterans Legal Services Clinic, according to Wenzloff, is to represent veterans on a variety of issues that are both acute and unique to the clients as veterans. He added that the clinic tends to focus on representing particularly vulnerable veteran populations, including gay and elderly veterans.
The clinic’s practice is made possible by a state law that allows law students to represent clients in court as long as the client has consented to the intern’s appearance and a supervising attorney has indicated approval.
“Our view is that working with veterans is a rich experience for law students to gain,” Wenzloff said. “They get the practical experience of working with individuals and groups on really interesting unmet legal needs that affect thousands of members of our community.”
The Yale Law School Veterans Legal Services Clinic was created in 2010.