November 19, 2016 at 3:35 pm EDT | by Chris Johnson
91-year-old gay veteran sues to update discharge to ‘honorable’
H. Ed Spires, on left. (Photo courtesy Yale Law School Veterans Legal Services Clinic)

H. Ed Spires, on left. (Photo courtesy Yale Law School Veterans Legal Services Clinic)

A 91-year-old veteran discharged from the Air Force in 1948 for being gay has filed a federal lawsuit to upgrade his discharge status from “undesirable” to honorable.

The lawsuit, filed Friday on behalf of H. Edward Spires by law student interns at the New Haven, Conn., based Yale Law School Veterans Legal Services Clinic, contends the service’s refusal to change the “undesirable” designation violates the Administrative Procedure Act and the right to due process under the 5th Amendment of the U.S. Constitution.

“For nearly seventy years, the United States Air Force has denied Plaintiff H. Edward Spires the dignity of an honorable discharge because he is gay,” the complaint says. “At age 91, Mr. Spires asks the military to upgrade his discharge from ‘Undesirable’ for reason of ‘homosexuality’ to ‘Honorable,’ to reflect his faithful service to his country and his equality in the eyes of the country he served.”

“Don’t Ask, Don’t Tell,” which was enacted in 1993, prohibited openly gay, lesbian and bisexual people from serving in the armed forces, but Congress repealed the law under the Obama administration. Spires was discharged prior to “Don’t Ask, Don’t Tell” under the military’s administrative ban against gay people in the armed forces, which allowed investigations into a service member’s sexual orientation.

Upon enlisting in 1946, H. Edward Spires served as a chaplain’s assistant at Lackland Air Force Base and, among other things, helped the chaplain write letters home to distressed parents and set up the chapel for services.

But in 1948, after being seen by other service members at an off-base Halloween party, Spires’ command accused him of being gay. They allegedly subjected him to days of interrogation, pressured him to out other members of his unit and threatened to put him in jail. After refusing to cooperate, Spires was discharged from the Air Force with an “undesirable” discharge for homosexuality.

David Rosenberg, Spires’ spouse David Rosenberg and a U.S. Army veteran, said in a statement the current record doesn’t reflect his spouse’s contribution to the country.

“After being cast out of the Air Force for being a gay man, Ed rarely spoke of his military service or his discharge, humiliated by the Air Force’s labeling of his service as undesirable,” Rosenberg said. “For the past decades he has been made to feel ashamed, despite the fact that he served his country honorably.”

According to the lawsuit, Spires is in bad health and almost died weeks ago while in the intensive care unit for pneumonia. Upon his death, Spires wants to be buried with military honors, but that can only happen with a discharge upgrade.

Erin Baldwin, one of the law student interns representing Mr. Spires at the Yale Law School Veterans Legal Services Clinic, said in a statement the time has come for the Air Force to make the change for her client.

“By granting Mr. Spires justice, the Air Force will finally send the message to Mr. Spires and all veterans who received undesirable discharges for homosexuality, despite their faithful service to our country, that the honor of their service does not depend upon their sexual orientation,” Baldwin said.

Under “Don’t Ask, Don’t Tell,” upgrade of discharges for homosexuality was prohibited, but after the law was changed, the Pentagon initiated a process to upgrade the discharges. Since that time, the lawsuit says, Spires has submitted two discharge upgrade applications to the Air Force board — one in 2014 and another in 2016.

But the Air Force denied both applications, the complaint says, on the grounds it cannot locate his records due to a 1973 fire. In fall 2016, the Air Force apparently elected to reconsider its most recent denial, the complaint says, but the service hasn’t indicated by when it will complete that process.

Sen. Richard Blumenthal (D-Conn.) said in a statement he has urged the Pentagon to expedite the review of the case because the record should reflect Spires “served our country with dignity and distinction.”

“While Mr. Spires is receiving expert help with his case, there may be thousands of others across the country who are encountering the same difficulties,” 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 no excuse for denying them their right to an honorable discharge, and the Department of Defense needs to ensure they receive fair consideration for their service to our nation.”

Hillary Clinton made a campaign promise of upgrading the paperwork for gay, lesbian and bisexual service members discharged because of their sexual orientation from designations “other than honorable” to “honorable.” Donald Trump didn’t speak on the issue.

Current policy at the Defense Department is to evaluate requests for upgrades for discharges for being gay on a case-by-case basis and to grant upgrades provided a discharge was based solely on “Don’t Ask, Don’t Tell” or a similar policy and there were no aggravating factors in the record, such as misconduct.

In a letter dated Sept. 20, acting Under Secretary of Defense for Personnel & Readiness Peter Levine assured service members and veterans discharged under the military’s gay ban the Defense Department would assist them.

“Whether you seek to have a document revised, a discharge updated, or seek something else you believe was wrongly denied you, we have skilled, caring people and fair and effective policies to assist,” Levine writes. “If you received a discharge under less than honorable conditions and believe this is unjust, file a petition, providing whatever you can in support of the request. The Department has a demonstrably strong record of addressing these matters, and I assure you that we will continue this tradition. I know that we cannot promise an outcome, but we do guarantee a fair and effective process.”

The Air Force declined to comment on the lawsuit and deferred to the Justice Department, which also declined to comment.

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

  • MichaelBedwell

    CLARIFICATION: Ed Spires is not just a victim of his government’s homophobia but also of chance. In this case, the chance of the branch in which he served, his name alphabetically, and his date of discharge. For had he served in any branch other than the Air Force or Army, or had his name been “Hubbard, James E.” or any Air Force veteran with a name alphabetically before that discharged between September 25, 1947, and January 1, 1964, his service records would likely still be at the National Personnel Records Center in St. Louis rather than among those 16-18 MILLION destroyed in the 1973 fire.

    FIRE IS THE HISTORIAN’S GREATEST FEAR. While earlier fires in American history destroyed important documents, the Center describes their 1973 fire as “an unparalleled disaster in terms of loss to the cultural heritage of our nation.” In terms of the number of people directly affected, it was the worst fire in the history of the world. It burned out of control for 22 hours, two days passed before firefighters were able to enter the building, and nearly four and a half days before it was declared officially out. Ninety-thousand cubic feet of records were also water damaged but much of those were eventually saved by a lengthy process of vacuum drying.

    BECAUSE, SADLY, there is a long history of people of all kinds who never served a day claiming they are veterans, the first step in qualifying for eligibility for a military funeral is proving that the person actually did. The Center is sometimes able to do that by consulting induction records from Selective Service or pay records from the General Accounting Office. Confirming that, the second requirement is proof that the veteran was HONORABLY discharged through a copy of his/her separation papers; since January 1, 1950, a DD214 form but in Spires’ time one of various WD AGO forms. Proof of that second requirement for him went up in smoke in 1973.

    WHILE THERE IS A GENERAL ATTITUDE today among the branches, as the article notes, that veterans given a less than honorable discharge solely for being gay should be granted an upgrade (though the process is tedious and time consuming), the concern, not without reason, is that they need to verify that that was the only reason. If there were additional reasons in the records that would, on their own, resulted in less than honorable discharge, e.g., evidence of drug use as in the case of at least one gay veteran I know of, they will not upgrade. But, yes, it’s no less reasonable for them to make an exception in the case of victims of the 1973 fire who are requesting nothing more than a funeral with military honors vs., e.g., burial in Arlington National Cemetery which is literally running out of space.

    EVEN WERE THE BILL currently in Congress meant to expedite the upgrade process not totally worthless as written because it includes no recourse should any branch fail to comply, and contains no provision for situations like Spires’ when discharge documents can’t be found, the homophobic Republican majority has blocked its passage, and will continue to until the balance of power in Congress changes; impossible, of course, until after the 2018 midterms.

    WE HOPE that Mr. Spires and other veterans like him live long enough to see Justice served.

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