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A San Diego military member returns to service after being kicked out under "Don't ask, don't tell".

December 13, 2011 1:43 p.m.

GUEST

David McKean, co-counsel, legal director, Servicemembers Legal Defense Network

Related Story: San Diego Navy Man Reinstated After 'Don't Ask, Don't Tell'

Transcript:

This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

CAVANAUGH: This is KPBS Midday Edition. I'm Maureen Cavanaugh, it's Tuesday December 13th. Our top story on Midday Edition, more than 13,000 members of the U.S. military were discharged during the 17 years of Don't Ask, Don't Tell. Now we hear that one of those discharged for being gay has been accepted back for active duty in the Navy. At almost his same rink and almost the same job. The story of petty officer Jase Daniels is a complicated one. Joining us to talk about it is Daniel's attorney, David McKean. Welcome to the show.

MCKEAN: Thank you so much for having us.

CAVANAUGH: We invite our listeners to join the conversation. Do you have a question or a comment about Don't Ask, Don't Tell dismissed service members returning to active duty? Give us a call at 1-888-895-5727. David, what is Jase Daniels' rank now in the military?

MCKEAN: He'll be returning as a petty officer first class, which is a pay grade E4. And he's going to be retrained from a Hebrew linguist which is what he was when discharged to a farcy linguist.

CAVANAUGH: Now, that isn't exactly what his rank was when he was discharged no, right and.

MCKEAN: No, when he was separated the second time, he was a petty officer second class. He'll go back in as a third class partly because when he was in the first time, he didn't quite have enough time in that rank in order to keep it when he went back in. So he'll be able to regain his petty officer second class status in a couple of months.

CAVANAUGH: I see. So is it accurate to call this a reinstatement?

MCKEAN: Yes, yes. He's going back in at essentially the same rank, and at essentially the same job as he had when he was discharged.

CAVANAUGH: And is this -- is Jase Daniel's story the first instance of this after Don't Ask, Don't Tell?

MCKEAN: As far as we know, and we would likely know, this is the first instance of somebody who's been discharged under Don't Ask, Don't Tell returning to active duty service.

CAVANAUGH: Tell us about the circumstances that led him to be discharged. As I say, they are a bit complicated. He was discharged under Don't Ask, Don't Tell not once but twice.

MCKEAN: Yes. It's really an unusual story. He enlisted in the Navy in April of 2001. And he served for two years as a member of the Navy ceremonial guard. And then in 2003, he trained to be a linguist, are a Hebrew linguist at the defense language institute in Monterey, California, before being stationed around the country and around the world to serve as a linguist. But in 2005, he had a conversation with his commanding officer about concerns he was having about having to -- you know, to basically lie and cover up part of who he was, and he wanted to know whether or not that was consistent with the Navy's values of honor and integrity. And as a result of having that conversation, it was considered that he had made the statement of his sexual orientation so he was discharged. But he had a fluke with his paperwork. And so in --

CAVANAUGH: Oh.

MCKEAN: July of 2006, the Navy sent him a letter rollering him back to active duty so they could can deploy him to Kuwait. So he happily deployed on September 11th, 2006, and served completely openly fair full year in Kuwait. And did very, very well there. And then when he was finished with his tour in May of 2007, he was separated again.

CAVANAUGH: Now, that's an amazing story. I know that there are, as I said, you know, about 13,000 gay men and women who have been discharged from the military because of Don't Ask, Don't Tell. They are now being allowed to, if they want to, to reenlist. But Jase is the first to be reinstated. Can you explain the difference to our listeners?

MCKEAN: Sure. Reenlistment is basically if you were discharged or you served previously, you can go to your local recruiting station and apply to reenter, just like anybody else who has served before. And that will mean that you are -- your job and your position and those types of things will be filled -- -- based on the needs of the service. But for Jase, he's going back into his exact same position, essentially. Different language but the same position at essentially his same rank. Where that might not be the case, if you go to your local recruiting station and try to rejoin the Navy or the Marine Corps or the army, what have you.

CAVANAUGH: Does that have something to do with his special skills as a linguist?

MCKEAN: It has more to do with the lawsuit that he along with two other service members who were discharged under Don't Ask, Don't Tell filed this suit in order to challenge the constitutionality of their discharge or in Jase's case, his discharges. And seek as a remedy, a full reinstatement back to their old positions.

CAVANAUGH: Is this, do you think, going to be the push now for people who were discharged under Don't Ask, Don't Tell to sue or to request reinstatement?

MCKEAN: Well, I think for most people, they'll go and apply to reenter through their local recruiting station. It's unusual circumstances that led to the need to file a lawsuit challenging the constitutionality of their discharges. But I think that there are many people who were discharged under Don't Ask, Don't Tell who are very, very eager to restart their military careers and finish their military service to their country.

CAVANAUGH: I'm speaking with David MCKEAN, he's cocounsel and legal director of the service members' legal defense network. We're talking about the case of San Diego sailor Jase Daniels who was the first service member dismissed under Don't Ask, Don't Tell that we know of who is now been reinstated to active duty in the Navy. And we are taking your calls with your questions and comments. Our number is 1-888-895-5727. David, what has Jase's reaction been to the fact that he's reinstated?

MCKEAN: Oh, he's absolutely thrilled. He's thrilled to be able to rejoin the Navy, to continue with his military career, to contribute his skills as a linguist to our common defense. And he's thrilled that he'll be able to do it openly and honestly about his sexual orientation without having to be afraid that he'll be discharged yet again.

CAVANAUGH: Now, he sued the Navy, the military, the defense department because of the Don't Ask, Don't Tell policy, did he receive any monetary compensation as well as the reinstatement?

MCKEAN: No, and he didn't and for any. That was specifically not part of the suit. He wasn't interested in it any. And either are the other two plaintiffs. This was purely about the ability to serve in their old jobs again which they loved and missed and wanted to return to. It really didn't have anything to do with complication or reparations or anything like that. It was purely about a desire to serve.

CAVANAUGH: Now, Jase Daniels posted a YouTube video where he talks about being excited to return to the Navy. We do have a clip from that YouTube individual where he talks about what's next. There's background music that can be heard in the video.

NEW SPEAKER: I've been asked several times, you know, are you nervous? And I think the thing that I'm most nervous about is the position that I'm put in. The part that I'm going to play in seeing that the transition of our military post Don't Ask, Don't Tell goes as smoothly as possible. And I'm humbled to be in that position and to really do what I can to insure that happens.

CAVANAUGH: That's the voice of Jase Daniels in a YouTube video talking about his reinstatement to active duty in the Navy before a dismissal for Don't Ask, Don't Tell. Now, David, do you think -- you heard how Jase is saying he feels basically like he's the first guy, he's the first reinstated person. Do you think that he does shoulder a burden of responsibility there?

MCKEAN: I think he probably shoulders some. But don't forget, he's not the first or only gay or lesbian service member serving.

CAVANAUGH: Certainly.

MCKEAN: He's joining approximately 66 other LGBT service members in the military today, all of whom can come out or not come out if they so choose without fear of losing their jobs. So there's some attention being paid to him as the first 1 to be reinstated back to active duty. But he's not alone as the first LGBT service member to join the military after Don't Ask, Don't Tell.

CAVANAUGH: Now, you were cocounsel on this lawsuit. And I'm interested. What was the Navy -- did the Navy fight this? Were they resistant to his request for readmission?

MCKEAN: Well, the defense department and DOL did defend this case, but ultimately we were able to work out a resolution, short of going to court and having to fully litigate that would allow Jase to return to actsive duty at conditions that were good for him, and that he was happy with, and that were good for the defense department and they were happy with. Ultimately, they didn't 50 his return to active service. And we were able to reach a resolution.

CAVANAUGH: Do you think this settlement is going to help other service members in a similar situation?

MCKEAN: Well, because it's a settlement, it doesn't set any sort of legal precedent in the case. But I think it does stand as a wonderful example of the defense department regaining many of the skills that they lost under Don't Ask, Don't Tell from people who were kicked out who would like to return to military service and really who have something important to offer. And so I think that it's a great example of people who will be willing to go back in and who are excited to go back in. And the defense department is excited to have them.

CAVANAUGH: What about the other two former service members who were plaintiffs in this case? What's their status now?

MCKEAN: They're still involved in the suit. The negotiations and discussions about how they will return to service and exactly when are still ongoing, so I'm not going to comment too specifically.

CAVANAUGH: Sure, okay.

MCKEAN: We expect that the issues for those two plaintiffs will be resolved shortly as well.

MAUREEN CAVANAUGH: One of the big headlines about the military in San Diego and across the country lately has been the fact that it's down-sizing. The Navy has been sending some layoff notices to career Navy personnel because there are too many in some categories, and so forth. Doesn't this work against gays dismissed under Don't Ask, Don't Tell who want to be readmitted or reinstated?

MCKEAN: I think it works against everybody who wants to rejoin the military or join the military for the first time. It's a much more competitive and smaller service than it historically has been at least in recent years as we were engaged in two conflicts abroad. Those are circumstances that are a reality for people who want to join the military. But I think if you're eligible and qualified, and you have a skill that the military needs and can use, the important part is that your sexual orientation won't be the determinative factor as to whether or not you can rejoin.

CAVANAUGH: Now, we have had the mile stone this year of Don't Ask, Don't Tell being returned, now we have the milestone of the first person being reinstated to active duty. Moving you forward, now that gays and lesbians are allowed to openly serve, what's next? Is there more the military needs to do for the HGBT community?

MCKEAN: Well, there's quite a bit, actually. There's serving openly,s and that is an enormous historic stop forward. But it doesn't result in equality of service. We've seen that for those service members who are legally married to someone of the same sex, their spouses are not cared for. They don't receive the same spousal and benefits that other spouses get because of the defense of marriage act. We filed a suit in Massachusetts on behalf of eight active duty and retired servicemen and women and their spouses to challenge that. There's not a policy of nondiscrimination specifically hovering sexual orientation the way there is for sexual orientation in the civilian side of government and in many statements and employers. Then there's the fallout of Don't Ask, Don't Tell on people's paperwork when they were kicked out, over 13,000 of them. There's a big stamp on their discharge paperwork that says they were kicked out for being gay, and that's a problem when they apply for civilian positions in the work force.

CAVANAUGH: I see. So you have more work to do?

MCKEAN: Yes, we do.

CAVANAUGH: Thank you very much. I've been speaking with David McKean, co-counsel, legal director of the Servicemembers Legal Defense Network. Thank you for being with us today.

MCKEAN: Thank you very much for having me.