May 18, 2014 | by Chris Johnson
Benefits for lesbian widow may signal change in VA policy
Tracy Johnson, gay news, Washington Blade

Tracy Johnson has received survivor benefits upon the death of her spouse. (Photo courtesy of Johnson)

A lesbian military spouse who fought more than a year for survivor annuities announced Saturday she had finally received notice she would receive the entitlement, raising questions about whether the Department of Veterans Affairs has enacted a blanket change in policy for same-sex benefits.

During her speech upon receiving an award at the inaugural dinner in D.C. for the American Military Partners Association, Tracy Johnson said she received a notice in the mail earlier in the month verifying that she would be eligible for survivor benefits. They would be retroactive, she said, to the time of the death of her spouse, Staff Sergeant Donna Johnson, who was killed on patrol in Afghanistan on Oct. 1, 2012.

“This decision from the Department of Veterans Affairs is an important step toward our end goal of achieving equal treatment for all military families,” Tracy said. “This would not have been possible without your support.”

But Tracy also said her work isn’t done and her “biggest goal,” which has yet to be achieved, is to get the Army to change Donna’s death certificate to recognize their marriage.

Speaking with the Washington Blade on Sunday, Johnson said she was stunned when she received the April 23 letter verifying she would receive the benefits earlier this month at her home near Ft. Bragg, N.C.

“It took me a moment to realize exactly what I was reading,” Johnson said. “When I opened it, it really took me a minute. I had to set it down and read it the day after when my emotions cleared and I was able to think, and pretty clearly, it was pretty powerful. It took me off my feet for a few minutes; I just sat there and cried and when I read it.”

Because same-sex marriage isn’t legal in North Carolina, Tracy Johnson married Donna Johnson in D.C. on Feb. 14, 2012. It was not even eight months later on Oct. 1. when Donna Johnson was killed by a suicide bomber in Afghanistan.

In January 2013, Tracy filed for survivors benefits through her local veterans affairs office, then made another filing in July 2013 after the U.S. Supreme Court decision against the Defense of Marriage Act.

She said she was never denied benefits, but was told the administration was evaluating her case and would reach out to her with any questions. Her understanding, she said, was the process for receiving the benefits could take anywhere from two to three months or up to a year if the claim is contested.

Tracy refused to disclose the amount of initial money she received with her final notification, but said the monthly entitlement was $1,233 and the payment start-date is retroactive to Nov. 1, 2012.

The acknowledgement that Tracy will receive veterans benefits could have broad implications. Following the court decision on DOMA, the Department of Veterans Affairs has been affording veteran spousal benefits to married same-sex couples in states that recognize their marriages, but the administration has withheld these benefits — including survivor benefits, disability benefits and joint burial at a veterans cemetery — to same-sex spouses living in states without marriage equality.

Title 38 section 103(c), which governs veterans’ benefits, looks to the state of residency, not the state of celebration, when determining whether a couple is married. That means same-sex spouses have been unable to obtain veterans benefits if they reside in non-marriage states, such as Tracy’s home state of North Carolina.

According to a CNN Money article in March, the VA brought up that portion of the law in response to the media outlet’s inquiry on why Tracy hasn’t received the benefits — even though the only notification she said she had personally received was her request was being processed or was in a holding pattern.

The Department of Veterans Affairs has told the Washington Blade it’s working with the Justice Department to develop guidance to ensure same-sex couples receive veterans benefits to which their opposite-sex comrades are entitled. But LGBT advocates — such as Sen. Mark Udall (D-Colo) and the Human Rights Campaign — have written to Secretary of Veterans Affairs Eric Shinseki urging him to speed up this process to spell out married same-sex couples are entitled to these benefits wherever they live in the country in the aftermath of the Supreme Court decision against DOMA.

Stephen Peters, president of the American Military Partners Association, had been working with Tracy on her case and said he hopes her victory signals a broad change in policy that will allow other veterans to receive similar benefits.

“Tracy’s recognition by the Department of Veterans Affairs is hopefully a major breakthrough for our gay and lesbian veterans and their spouses trying to gain access to their earned benefits,” Peters said. ”Even with the Supreme Court’s decision in Windsor, it was believed that Title 38 section 103(c) was preventing the VA from granting legally married gay and lesbian veterans living in non-marriage equality states access to their earned benefits. There is still a great amount of uncertainty, but for the sake of our families, we hope that this is signaling a change in policy by the VA.”

Peters told the Blade he knows of no other same-sex spouse of a veteran who lives in a non-marriage equality state and has received benefits from the VA at this point.

Whether Tracy was an exception to current policy or a signal of a larger change in policy wasn’t immediately clear. The VA didn’t immediately explain why it had determined it could afford benefits to Tracy.

Tracy said her receipt of benefits is “a step in the right direction for all of us” in a path that she hopes will lead the way for other spouses in her situation to claim benefits they deserve as result of military service.

“I’m hoping that they’re going to use this as maybe a stepping stone to help all the others,” Tracy said. “We’re all in this together; it wasn’t just me getting awarded these benefits, and then just turning my cheek and walking away. This isn’t just about me; it’s about all of us fighting the good fight for the right reason.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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