Editor’s note: This article first appeared on The War Horse, an award-winning nonprofit news organization that educates the public about military service. Subscribe to our newsletter.
Andrew Espinosa was in his Boulder, Colorado, office when the Air Force veteran’s first message came on his cell phone: “Andy, is this the solution you’ve been looking for all this time?”
President Biden had just announced that he would “right a historic wrong” by granting pardons to gay veterans convicted of consensual sex acts, but Espinosa said the text messages didn’t stop for hours.
“I’m shaking,” Army veteran Mona Maguire told War Horse on the morning of June 26, celebrating the news at her suburban Milwaukee home in between interviews with CNN and the BBC. “It’s a relief.”
More than 25 years ago, both Maguire and Espinosa were discharged from the military for being gay. It seemed as though they might finally get a long-awaited reprieve, an apology, and access to the health care and other veterans benefits that had been denied them because of “incorrect discharge papers.”
Then reality hit. In the weeks since the president’s historic action, Messrs. Maguire and Espinosa have digged into the details and learned that they and thousands of other veterans are unlikely to fall within Biden’s narrow scope of pardons. The emotional upheaval has renewed the pain of exclusion that has haunted them for decades since their military service was cut short.
It’s “another punch to the gut,” Espinosa said.
The two are among roughly 100,000 World War II veterans who were removed from the military because of their sexual orientation following the repeal of the “Don’t Ask, Don’t Tell” policy in 2011. Thirteen years after that repeal, Biden’s pardons have energized advocacy groups and LGBTQ veterans who continue to work to reverse the harm suffered by gay veterans, including the incarcerations and convictions that still blemish their records today.
But there turned out to be a catch: The pardon was only available to those convicted of non-forcible sex in a military tribunal, and neither the White House nor the Pentagon could tell War Horse exactly how many veterans were included in the pardon, or why so many others were left out.
That doesn’t include Maguire, who became a symbol of the injustices stemming from the military’s discriminatory past after sharing her story with War Horse magazine just days before Biden’s announcement. The Milwaukee mother avoided a court-martial by admitting to a lesbian relationship and accepting a wrongful discharge, so she was never convicted in a military tribunal. A pardon would do nothing to improve her record.
What worries advocates even more is that with the presidential election just four months away, a return of Donald Trump to the White House could bring the processing of pardon applications to a halt altogether, experts say.
Amid jubilation over Biden’s announcement, the White House estimated that thousands of veterans would benefit from the pardon, upgrading their discharges and receiving VA benefits that they previously weren’t eligible for. But Michael Wishnie, a professor at Yale Law School and an expert on veterans law, is cautious.
“There’s a real danger that nobody will benefit,” he says.
‘Mass’ amnesties rare
By the time the text messages stopped and Espinosa began focusing on his real estate job, he had already concluded that the pardon did not apply to him.
He joined the Air Force in the late 1980s with dreams of becoming an astronaut. In 1993, the Air Force captain was court-martialed on charges of “lewd conduct.”
“The incident happened in the early hours of the morning after a party while he was stationed in Turkey, Mr. Espinosa said. He is accused of touching a fellow airman’s leg and kissing him on the cheek while watching the playoffs. Mr. Espinosa maintains his innocence and believes he was targeted because of homophobia in the military and a desire by his superiors to get rid of him.”
Espinosa, who first spoke about his story to CBS News last year, received a letter from military officials to his mother explaining that “homosexuality was a factor in this case,” but that the main factor was harassment of another airman. Espinosa said he has largely recovered since being discharged from the military, but his conviction has prevented him from taking a government job as a census taker, and he tried unsuccessfully to get promoted after his discharge when “don’t ask, don’t tell” laws were repealed. Until 1993, the military banned gays from serving, but under President Clinton, “don’t ask, don’t tell” laws allowed gays to serve as long as they kept their sexual orientation secret.
After reading the pardon fine print, Espinosa responded to every congratulatory text message from childhood friends and military friends, thanking them for their support but saying he would not accept any of Biden’s goodwill.
“If it helps one person, that’s a good thing,” Espinosa said. “I wish there was more explanation.”
Adding to the confusion, Biden’s pardons were given to unnamed groups, rather than to named individuals. Such “mass” pardons are rare but not unprecedented. For example, in 1977, President Jimmy Carter pardoned hundreds of thousands of Vietnam War draft evaders.
Wishney said advocates and veterans should be proud that their persistence likely prompted Biden to grant clemency. Still, he said, “We’re very disappointed that the pardon was so limited.”
Biden could have expanded the pardon to more veterans, including those convicted of crimes such as “lewd conduct” because of their sexual orientation, he said. A pardon could have helped veterans like Maguire.
In 1988, while stationed in West Germany, Maguire was given the choice between being court-martialed and imprisoned, or receiving a dishonorable discharge “in lieu of court-martial,” if she admitted to a same-sex relationship. She chose the latter.
Her discharge meant she was unable to receive veterans benefits, and although she tried to extend her discharge last year, an Army review board denied her request after she pleaded guilty to sexual intercourse and lewd conduct during questioning at age 20.
McGuire thought a pardon might make her confession obsolete, given Biden’s recognition of the criminalization of gay military personnel, but she said, “I’m just in the same place, in the same position, that I’ve been for the last 37 years.”
“These things are not foolproof.”
When Steve Marlowe heard the president’s announcement, he thought it was “amazing” — justice had finally been served. He acted quickly, and the Air Force veteran who lives in Seattle filed his pardon application last week.
In 1990, Marrows joined his father as a second lieutenant in the Air Force. He says he was a proud officer and good at his job. But he cohabited with another airman for several months and was ultimately convicted of three counts of consensual sex. He spent two years in federal prison at Fort Leavenworth. But Marrows was also convicted of moral turpitude, a charge that was not included in the pardon.
“I’ve always tried to be optimistic,” he said, “but these things are never certain.”
A White House spokesman did not respond to a request from The War Horse for information about why so many LGBTQ veterans were excluded from the pardon program.
There is another avenue for those who don’t qualify, a Defense Department spokesman said: LGBTQ veterans can submit a standard Justice Department pardon application to the chief of the military branch where they were convicted, but a decision could take years.
Wishney and other veterans’ advocacy groups say the Defense Department didn’t need to create confusion for LGBTQ veterans over the scope of amnesty.
“For years, people have been asking the Department of Defense to take it upon itself to identify veterans who have been discharged for homosexuality, with or without a court-martial,” Wishney said, “and for years, the Department of Defense has steadfastly resisted.”
As the amnesty system currently stands, veterans who believe they qualify, like Mallows, must apply, wait for a response (which could take months), and then go through a separate process to receive a dishonorable discharge or upgrade their dishonorable discharge.
“They’re putting the onus on veterans,” Wishney said, adding that such a multi-step process is likely to deter many veterans who could benefit from amnesty.
What just happened?
If Maroz’s application is approved before the November election, it will remain in place no matter who wins the White House. But if Donald Trump wins, Wishney said, the new administration could slow or stop the process of issuing pardon certificates that allow veterans to receive benefits. No one from the Trump campaign responded to War Horse’s questions about whether the Trump White House would follow through on Biden’s pledge.
Graham Dodds, an expert on US politics at Montreal’s Concordia University, said presidents often grant pardons at the end of their terms, so it’s unclear why Biden decided to act on this particular matter now.
Dodds says this could be an act of reconciliation — much like Canada’s 2017 apology for past discrimination against LGBTQ people — but he says the politics can’t be ignored.
“The LGBTQ community is not a monolith, but they make up about 7 percent of the electorate,” Dodds said. “In a close election, every vote can matter.”
Still, the military hasn’t treated all gay veterans uniformly: Policies have changed over the years, and commanders have had the power to choose whether to quietly discharge LGBTQ service members with an honorable discharge, prosecute them, or threaten them with an unfair discharge to avoid a court-martial, which makes the pardon somewhat “troublesome,” Dodds says.
In McGuire’s case, she was not convicted or jailed, but she said it felt that way.
After her arrest in May 1988, she waited three months for her discharge papers. She was stripped of her security clearance and forced to clean the men’s restroom. Soldiers whispered about her and three other women who had been kicked out for being gay. They “weren’t even treated like second-class people,” she said.
McGuire never walked around alone for fear of being beaten.
In August 1988, she finally received her discharge orders. Her dreams of serving in the Army were shattered, and her heart nearly broke right then and there. “I was crying, I was having trouble breathing and I couldn’t speak,” she says. “I was devastated.”
Years ago, as a 20-year-old soldier, Maguire said he believed taking responsibility and leaving the Army would pay off in the long run.
“It’s ironic that this is going to be targeted at people who may have actually been convicted and served time in prison,” she said, “but I can’t do it.”
This War Horse investigation was reported by Ann Marshall Chalmers, edited by Mike Frankel, fact-checked by Jess Rohan and proofread by Mitchell Hansen Dewar. Headlined by Abbie Bennett. Coverage on veterans’ health is made possible in part by a grant from the A-Mark Foundation.
