Family Benefits


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BENEFITS AND FAMILY PROGRAMS

LGB Military Families

Under Don’t Ask, Don’t Tell, many gay and lesbian service members with families chose to keep their home life completely separate from work, and others faced investigation for actions such as listing a dependent child or partner on military paperwork. Marriage to someone of the same sex was grounds for discharge. With the repeal of DADT, gay service members may talk about their home life without losing their jobs and can engage without fear in many of the natural conversations that occur when working closely with others in a tightly knit unit.

But because of the Defense of Marriage Act (DOMA) and some military regulations, LGB families are not treated the same as the families of their straight counterparts.

Marriage and Commitment

After repeal of DADT, service members can get married to a same-sex partner without risking their employment. Several states and countries give legal recognition to same-sex couples. At the time of writing, six states (Massachusetts, Vermont, Connecticut, New Hampshire, Iowa, New York) and the District of Columbia grant marriage licenses to same-sex couples. California granted marriage licenses to same-sex couples for several months in 2008, and those marriages are still valid. Maryland recognizes (but does not perform) gay marriages. Several other states grant civil unions or domestic partnerships that attempt to approximate marriage.

While gay and lesbian service members have the option of getting married in a state that will legally recognize their union, DOMA prevents the Federal Government, and therefore the military, from doing so. This is because DOMA defines marriage for the Federal Government as a union between one man and one woman as husband and wife. From a practical standpoint, this means that many of the benefits that the military extends to “spouses” are not available to the same-sex spouses of service members.

For service members who wish to remain closeted, they should be aware that records of marriage and commitment are publicly available records. The name (and gender) of their spouse could become known to anyone who bothers to look.

Having Children and Adopting

Dependent children of a gay service member are eligible for all of the same benefits as a child of any service member. This is the case for both biological and adopted children. When service members have a child, they must report this new dependent to the military in DEERS.106 In order to enroll the child in TRICARE and other child benefits, the service member must present the child’s birth certificate and adoption papers, if applicable.107 This applies to all legally adopted children and foster children.

In cases where an unmarried service member did not actually give birth to the child, proof of legal adoption should be sufficient to establish parentage for purposes of benefits eligibility. For example, if a service member and his same-sex partner jointly adopt a child, the policies should present no obstacle to recognition of the service member as a parent. If parentage is established through less-traditional means (e.g., a second-parent adoption, presumed by virtue of a same-sex marriage, or through a parenting agreement) or if the service member does not appear on the birth certificate, the service member may encounter problems registering the child as a dependent. If this occurs, please contact SLDN for assistance.

Stepchildren and parents-in-law gained through same-sex marriages are excluded from benefits eligibility by DOMA. Typically, stepchildren are eligible for dependent benefits, and a stepchild must be registered in DEERS just like any other dependent child. However, to register a stepchild, a marriage certificate must be presented along with the child’s birth certificate. If a service member’s stepchild is from a same-sex marriage, the child will not be recognized as a dependent because of the way “marriage” is defined under the federal Defense of Marriage Act. The same goes for dependent parents-in-law.

Family Care Plans

Service members with children must create a Family Care Plan to delineate how their dependents will be cared for when the service member is deployed. Any adult, including a same-sex partner, may be named as the caregiver on the Family Care Plan, giving the caregiver access to benefits such as counseling through Military OneSource and shopping and programs at military installations on behalf of the dependents. See “Family Care Plans & Deployment Support” below for more information.

Moving (PCS) and Housing

When a married service member is assigned to a new duty station, he or she is usually eligible for increased funding to allow his spouse to accompany him. However, DOMA prevents these benefits from being provided for a same-sex spouse. A legal child of a service member will be eligible for the dependent travel allowances to accompany the service member to the new station.

Of course, a same-sex partner could accompany the service member to a new station at his or her own expense, but if the assignment is overseas, the partner might “not be eligible for the special host-nation legal protections that a ‘command sponsored’ individual may receive.” Moreover, the partner could not live in on-base housing (unless local policies allow non-dependents to live on base, such as childcare providers), nor would a partner make the service member eligible for BAH at the “with-dependent” rate.

Marital Status and the UCMJ

Marital status is relevant to several types of misconduct punishable under the UCMJ, such as adultery, spouse abuse and cohabitation. The conduct of service members who are married to a same-sex partner might, technically, not be covered within many of these provisions, but these service members are still expected to behave in accordance with good order and discipline. On the other hand, a same-sex marriage does not “cure” fraternization for gay couples, and gay service members (particularly those engaging in fraternization) can be charged with consensual sodomy. Service members who get married to an opposite-sex partner to hide their sexual orientation can be charged with fraud if they are receiving benefits that they are not sharing with their spouse. For more information, see the UCMJ section of this Guide.

BENEFITS

This section lays out what benefits are now available to LGB service members in light of DADT repeal and which benefits are not.

Benefits for Service Members

In theory, there has never been a discrepancy between the benefits available to single gay service members and single straight service members; the same benefits have always been available to everyone who serves, regardless of sexual orientation. LGB service members, however, have often decided not to take advantage of all their benefits for fear that doing so would lead to a DADT discharge. With repeal, all service members should feel secure in accessing all their well-earned benefits.

Benefits for Same-sex Partners

Service members have always been able to designate a person of their choice for certain benefits. Under DADT, service members lived with the reality that designating someone of the same sex might raise eyebrows and possibly lead to investigation. Now, service members should feel free to designate a same-sex partner for any of the following:

Member-Designated Benefits: Service members may freely designate any person, including a same-sex partner, for the following benefits:

Emergency Notification: Service members must keep DD Form 93 (Record of Emergency Data) updated so that family members may be notified if the service member is killed in action, wounded in action, missing in action or is taken as a prisoner of war. DOMA prevents a same-sex partner from being recognized as the primary next of kin (PNOK), which is determined by the family members listed on DD Form 93. However, same-sex partners may be listed as “Designated Persons,” who are notified, though less quickly than the PNOK. Further, privacy regulations prevent “designated persons” from receiving all the details of the emergency. In the event that a service member is killed in action, any beneficiaries receiving survivor benefits or entitlements will be notified.

A same-sex partner may be notified more quickly if the couple has children, because a child is the next-of-kin for a “single” service member. The child’s other parent or guardian would be notified on the child’s behalf.

The DD 93 also requires the identification of a Person Authorized to Direct Disposition (PADD) of remains. This person must be a blood or adoptive relative, or a “spouse” recognized under DOMA.

In case of emergencies back home (e.g., serious illness, death, and birth of a child or grandchild), the Red Cross provides notification to the service member, and if leave is requested, notification can be provided to his or her command as verification of the emergency. If the service member’s presence is requested, he or she may ask for leave to return home and attend to the situation. Under DADT, the Red Cross handled notifications regarding a same-sex partner as if they were from family, but referred to the same-sex partner as a “close friend” to avoid scrutiny. A service member is less likely to be granted leave to attend to a “close friend” than a recognized family member. Even if the Red Cross begins using the term “same-sex partner” or “same-sex spouse” in light of repeal, there is still no guidance for commanders on granting leave to service members in the event of injury or death of a same-sex partner.

In an Emergency

If the partner or family of a service member needs to contact the service member in an emergency, they should contact their local Red Cross for assistance. The Red Cross will need the following information about the service member:

Hospital Visitation: A patient may consent to receive anyone as a visitor. Federal health regulations stipulate that hospitals participating in Medicare (the vast majority of hospitals in the US) may not restrict or limit visitation privileges on the basis of sexual orientation, and that a patient has the right to allow visitation from any person, including a same-sex partner. Military hospitals that do not accept Medicare are not obligated to follow these regulations, but they normally do.

As a spouse or partner, to protect yourself against discrimination if the patient is unable to give consent or if you are at a non-participating hospital, you may want to consult with a family law attorney to create a “hospital visitation authorization” and if desired, medical powers of attorney giving each other the ability to make medical decisions on behalf of the other person.

Benefits for Children and Same-sex Partners

In general, dependent children of service members (including biological children, legally adopted children, foster children, and stepchildren) are entitled to a great number of benefits, including health care. Parents serving in the military may be eligible for certain additional benefits and allowances. This holds true for gay and lesbian service members with children. The only exception is stepchildren, because the government does not recognize a stepparent relationship created by a same-sex marriage.

Service members have a duty to report any legal dependents, including adopted children. This applies to all active duty, reserve, National Guard, and personnel in the IRR. Same-sex spouses are not considered legal dependents, however, because of DOMA.

Please contact SLDN if you have questions about your family situation, especially if the service member is not the biological parent of the child.

Medical & Dental Care for Children: Children of gay service members are eligible for all of the same benefits as children of straight service members, including healthcare and insurance from TRICARE. Remember, service members must register their children in DEERS. If the child is adopted, the service member must present the birth certificate of the child as well as proof of adoption to show parentage.

Emergency Notification: A service member’s child is considered the default next-of-kin of DD Form 93 for a “single” service member, and a parent or guardian of the child will be notified on behalf of the child in emergencies involving the service member. In other words, the same-sex partner of a service member, who is also the legal parent or guardian of the service member’s child, will likely receive notification more quickly than he or she would as a “designated person” without children.

Housing: DOMA prevents the military from recognizing same-sex spouses as dependents of service members, so military family housing (MFH) and dependent-rate BAH is generally unavailable to same-sex couples unless they have children. If a service member has a dependent child, MFH and dependent-rate BAH is available.

Same-sex partners may qualify under local policies allowing certain non-dependents to live on base, such as child-care providers. For example, the Army allows non-family members to live in military family housing (but not unaccompanied housing) with permission from the Housing Office.

Military ID Cards: Children of service members are eligible for a military ID card after being designated by a service member as dependents in DEERS. Children living with someone other than the service member and all children over age 10 must have ID cards. An ID card gives a child access to Morale, Welfare, and Recreation programming.

Family Care Plans & Deployment Support: When a service member is deployed, he or she must set up a Family Care Plan designating someone to care for his or her minor children and certain other dependents. Same-sex partners may be named as the caregiver on the service member’s Family Care Plan, giving them access to benefits such as counseling through Military OneSource, shopping and programs at military installations on behalf of the dependents.

The caregiver does not receive a military ID card while the service member is deployed, but he or she may buy things for the dependents at a military Commissary and Exchange while the service member is deployed. In order to do this, the service member or caregiver must request a letter of authorization from the commanding officer of the installation with the commissary or exchange through the ID card office at that installation.

In addition, the designated caregiver should be sure to have a comprehensive power of attorney written up as part of the Family Care Plan, so that he or she is able to accompany the dependent to military medical facilities and make decisions on his or her behalf.

In an Emergency

If the partner or family of a service member needs to contact the service member in an emergency, they should contact their local Red Cross for assistance. The Red Cross will need the following information about the service member:

Service members have a duty to report any legal dependents, including adopted children. This applies to all active duty, reserve, National Guard, and personnel in the IRR. Same-sex spouses are not considered legal dependents, however, because of DOMA.

Please contact SLDN if you have questions about your family situation, especially if the service member is not the biological parent of the child.

Medical & Dental Care for Children: Children of gay service members are eligible for all of the same benefits as children of straight service members, including healthcare and insurance from TRICARE. Remember, service members must register their children in DEERS. If the child is adopted, the service member must present the birth certificate of the child as well as proof of adoption to show parentage.

Emergency Notification: A service member’s child is considered the default next-of-kin of DD Form 93 for a “single” service member, and a parent or guardian of the child will be notified on behalf of the child in emergencies involving the service member. In other words, the same-sex partner of a service member, who is also the legal parent or guardian of the service member’s child, will likely receive notification more quickly than he or she would as a “designated person” without children.

Housing: DOMA prevents the military from recognizing same-sex spouses as dependents of service members, so military family housing (MFH) and dependent-rate BAH is generally unavailable to same-sex couples unless they have children. If a service member has a dependent child, MFH and dependent-rate BAH is available.

Same-sex partners may qualify under local policies allowing certain non-dependents to live on base, such as child-care providers. For example, the Army allows non-family members to live in military family housing (but not unaccompanied housing) with permission from the Housing Office.

Military ID Cards: Children of service members are eligible for a military ID card after being designated by a service member as dependents in DEERS. Children living with someone other than the service member and all children over age 10 must have ID cards. An ID card gives a child access to Morale, Welfare, and Recreation programming.

Family Care Plans & Deployment Support: When a service member is deployed, he or she must set up a Family Care Plan designating someone to care for his or her minor children and certain other dependents. Same-sex partners may be named as the caregiver on the service member’s Family Care Plan, giving them access to benefits such as counseling through Military OneSource, shopping and programs at military installations on behalf of the dependents.

The caregiver does not receive a military ID card while the service member is deployed, but he or she may buy things for the dependents at a military Commissary and Exchange while the service member is deployed. In order to do this, the service member or caregiver must request a letter of authorization from the commanding officer of the installation with the commissary or exchange through the ID card office at that installation.

In addition, the designated caregiver should be sure to have a comprehensive power of attorney written up as part of the Family Care Plan, so that he or she is able to accompany the dependent to military medical facilities and make decisions on his or her behalf.

Benefits Unavailable to Families of Gay or Lesbian Service Members

Benefits Unavailable Because of DOMA

Most of the benefits available to veterans, service members and their families are granted directly by Congress. Well over a hundred of these statutory benefits are contingent on marital status. These benefits will remain unavailable to legally married same-sex couples unless the Defense of Marriage Act is repealed or declared unconstitutional by the Supreme Court, or individual statutes are modified by Congress.

For New Recruits

You may be able to enter the military with a same-sex “friend” and guarantee that you will be together at least through basic training. The Navy and Air Force currently have limited “Buddy Programs” for new recruits who want to go to Basic Training together and eventually be stationed together. The Army has a “Buddy Program for chaplains. Ask a recruiter more about these programs.

Basic Allowance for Housing at “with dependent rate”: In order to receive the much-greater Basic Allowance for Housing at the “with dependent rate,” service members must have a qualifying dependent. The meaning of “dependent” for BAH (and many other benefits) is defined by Congress in Title 37 of the US Code, Section 401, to include a spouse, dependent parents and parents-in-law, biological and adopted children, and step-children. Same-sex spouses of service members are excluded from these benefits by the Defense of Marriage Act, as are parents-in-law and step-children from a same-sex marriage.

Medical & Dental Insurance and TRICARE: Statute also governs who can have access to military medical treatment facilities under TRICARE. Those covered include service members and their dependents, including a spouse, dependent children and step-children, and dependent parents and parents-in-law. However, the Defense of Marriage Act prevents recognition of same-sex marriage, so a service member’s same-sex spouse, step-children and parents-in-law are currently ineligible for health benefits.

Morale, Welfare, and Recreation Programs: Generally, spouses of service members, along with dependent parents, parents-in-law, children and step-children, are authorized for unlimited use of all MWR programs because they are eligible for ID cards and registration in DEERS. Eligible members are the same as those eligible for TRICARE benefits,136 and therefore same-sex spouses (as well as parents-in-law and step-children) are excluded by virtue of DOMA.

However, regulations leave open to Installation Commanders the possibility of opening up limited access to certain MWR programs to guests and the general public. These exceptions would be applied regardless of sexual orientation or individual situations; in other words, a same-sex spouse could not receive any more guest privileges than a girlfriend or boyfriend of a straight service member, and would likely be treated as any non-dependent member of the public.

Relocation & Transportation: If a service member with an opposite-sex spouse is assigned to a new base, he or she may be eligible for increased funding and support to allow the spouse to accompany him or her to the new assignment.138 Similarly, an opposite-sex spouse can receive travel assistance to attend the burial ceremonies if the service member dies while on duty. These statutory benefits are not available to legally married same-sex spouses, but children of gay or lesbian service members (not step-children) are entitled to these travel and transportation allowances.

Employment and Education for Spouses: Opposite-sex spouses may be eligible for employment assistance during a permanent change of station, as well as education and training to help them find a “portable” career. Again, DOMA restricts the application of these benefits to those married to a service member of the opposite sex.

Family Separation Allowance: A service member who is on duty or assigned to a new station and whose spouse and children are unable to accompany him is entitled to a monthly allowance. If both spouses are service members and both are assigned to duty away from their (non-spouse) dependents, both are entitled to the allowance. However, these benefits are limited by statute to those that are entitled to transportation allowances (see above), thereby excluding same-sex spouses under DOMA.

Surviving Spouse Benefits: DOMA prevents the military from providing a number of benefits to same-sex spouses of deceased service members, including annuities based on retired or retainer pay. If a gay or lesbian service member was previously married to an opposite-sex partner, these death benefits may go to that person instead.

Family Advocacy & Spouse Abuse Services: Family Advocacy Services, including New Parent Support and assistance for abused or maltreated spouses, are available only to those eligible for treatment in military medical facilities, which does not include same-sex spouses. A legally married same-sex spouse of a service member can receive a basic assessment and safety plan from providers in the military facilities, but will receive care “out-side” the gate. An abused same-sex spouse will not receive military-sponsored protection and emergency shelter and is not afforded the ongoing financial support and benefits provided to opposite-sex spouses of service members discharged from the military for dependent abuse.

SLDN does not provide general legal services, but if you are facing harassment of unequal treatment because of your perceived or actual sexual orientation,
contact our legal team. We may be able to help.

Benefits Unavailable Because of DoD Regulation

Certain family benefits granted by Department of Defense regulations remain unavailable to same-sex partners, even after repeal of DADT. This is because the regulations include the term “spouse” or “marriage” which must be interpreted to mean opposite-sex spouses because of DOMA. At this time, DoD has chosen not to create a new “qualifying relationship” status for same-sex couples.

If the Department of Defense exercises its authority to add new inclusive language for same-sex spouses or committed relationships or to remove reference to “marriage” or “spouse” in the regulations, these benefits may become available to same-sex partners of service members. There is no statutory reason to deny these rights to same-sex couples, and SLDN is advocating for immediate revisions so that families of gay and lesbian service members and veterans are treated equally with respect to these regulatory benefits.

Joint Duty Assignments: Under DoD regulations, dual-career military married couples are generally stationed to the same geographic area. The language of the regulations makes married same-sex military couples ineligible for co-location consideration for duty assignments. Instead, they may make hardship-based requests for accommodation in assignments, like any single service member. Similarly, same-sex military spouses are ineligible for exemption from serving in hostile-fire areas when their spouse is wounded or disabled by hostile fire.

Free Legal Services: The Service secretaries have defined “dependent” in such a way that same-sex spouses are excluded from receiving free legal services from military legal assistance offices. Same-sex partners will have to seek services from private attorneys.

Military Family Housing: Under DoD regulations, Military Family Housing is available only to service members who qualify for housing at the “with-dependent” rate.155 Gay and lesbian service members with children may qualify for MFH, but legally married same-sex couples without children are not eligible for these benefits.156

Shopping at Commissaries, PX, BX & NEX: Exchange and commissary access is restricted to “dependents” of service members. The statute itself does not define “dependent,”157 but DoD Instructions on commissary management define “dependent” to include the service member’s spouse, dependent children and step-children, parents and parents-in-law, and former spouses that meet certain qualifications.158 Same-sex spouses are excluded under this definition of “dependent” because of the Defense of Marriage Act, as are parents-in-law and step-children.

Family Programs: DoD uses a flexible definition of “family” for the purpose of implementing Family Centers and programming, but leaves it up to the individual Service Secretaries to determine eligibility. Thus, each branch of the service (and each installation commander) determines the extent to which same-sex spouses and partners have access to these programs, which include deployment support, marriage and family counseling, relocation assistance and financial management. You can ask your local Family Center or call SLDN for more information.

Spousal Privilege in Courts Martial: The Rules of Evidence in the Manual for Courts-Martial gives spouses the privilege to refuse to testify against their spouse in criminal cases (with a few exceptions).161 Because same-sex marriage is not recognized under DOMA, same-sex spouses can be forced to testify against their loved ones and disclose confidential information shared during the marriage relationship. Please contact SLDN if you are facing criminal charges and your same-sex partner may have to testify against you.

Relocation & Overseas “Command-Sponsored” Status: Relocation support and funding is not available to same-sex partners (see below). If a same-sex partner accompanies a service member overseas at his or her own expense, “in many instances the partner would not be eligible for the special host-nation legal protections that a ‘command sponsored’ individual may receive.”162 A command-sponsored dependent163 is also eligible for greater space-required and space-available travel privileges than non-command-sponsored individuals.164 Notably, the Joint Federal Travel Regulations define “dependent” more broadly for civilian employees, to include domestic partners.

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