A 91-year-old veteran who sued the Air Force to upgrade his 1948 discharge for being gay from undesirable to “honorable” was granted his request, his attorneys learned last week.
The six-page notice from the Air Force Review Board Agency informs H. Edward Spires, who lives with his spouse David Rosenberg in New Haven, Conn., that his records “should be corrected” after review of his case.
“Don’t Ask, Don’t Tell” repeal authorized the Defense Department to upgrade the discharge papers for gay service members to “honorable” provided the Pentagon can ascertain sexual orientation was the only reason for the separation.
Although the Air Force says Spires’ paperwork was heavily damaged during a fire in 1973 and therefore the service can’t verify being gay was the only reason he was discharged, the service concludes his discharge “more likely than not” meets the conditions for an upgrade and thus grants it to him.
“In this respect, we note the applicant was discharged under Army Regulation 615-368, which includes provisions for the discharge of personnel for homosexual conduct or traits where there were no aggravating factors (other misconduct) during a member’s service,” the memo says. “While this regulation does include other bases for discharge not related to homosexuality, we believe it is more likely than not the applicant was discharged for his sexual orientation and there were no aggravating factors in the record that could, in and of themselves, form the basis of an adverse discharge.”
In November, Yale Law School Veterans Legal Services Clinic filed a lawsuit against the Air Force seeking to upgrade Spires’ discharge petition to honorable, contending the service’s refusal to change the “undesirable” designation violated the Administrative Procedure Act and the right to due process under the 5th Amendment of the U.S. Constitution.
Spires, who wanted the “honorable” discharge so he could be buried with military honors, had sought the upgrade through the administrative process in 2014 and 2016, but was denied both times. Although the Air Force indicated it would reconsider the 2016 request, the service didn’t indicate when it completed the process and the lawsuit was filed.
Erin Baldwin, one of the law student interns representing Spires at the Yale Law School Veterans Legal Services Clinic, said her team hasn’t yet filed a motion to dismiss the case and couldn’t yet comment on whether the litigation would continue.