Navy veteran discharged over her sexual orientation 33 years ago can't clear her record

Elaine Rodriguez was 23 years old when Navy investigators first confronted her about her sexuality in 1990. She handled it the only way she knew how, by denying it. 

Rodriguez wasn't yet out to her friends and family, much less the military. Back then gay and lesbian military personnel couldn't serve and a mere rumor could spark what was commonly referred to as a "witch hunt." In Rodriguez's case, that's exactly what followed.

"I had a civilian girlfriend at the time. They told me her name. They told me the apartment complex she lived in," Rodriguez told CBS News. "I just threw my hands up in the air, and I just said, 'You know what, yes, it's all true.'"

Rodriguez is one of thousands of gay and lesbian service members who were kicked out of the military with less than honorable discharges — victims of discrimination who have continued to fight to regain their honor, a CBS News investigation has found. 

Leaving the military without an honorable discharge has left more than just an emotional scar. For thousands, it has meant no VA benefits and no GI bill to help pay for college. While there are official channels for veterans to apply for what's called a discharge upgrade, the CBS News investigation has found the process can be difficult and is often not successful. 

U.S. Senator Kirsten E. Gillibrand, a New York Democrat, said the military is not doing enough to address the history of discrimination.

"We should be reaching out to all of those veterans in whatever way we can to make sure they know that if they want the benefits they earned, if they want to be honorably discharged, that there is a path and a process to do it and that we will fight for them," Gillibrand told CBS News. 

Rodriguez's discharge paper, known as a DD-214, lists the reason for her separation as "misconduct commission of a serious offense" — words she says still sting. "It makes me feel like I'm a criminal." 

In the years after leaving the Navy, Rodriguez continued to suffer the consequences of a less than honorable discharge when she was denied admission to the police academy and the possibility of fulfilling a new dream.  

"I can't get a government job, I can't be a police officer like I wanted to because of my DD-214, yeah. They messed up my life," she said. 

There have been drastic changes to the way the military handles sexual orientation since Rodriguez was discharged. A policy known as "don't ask, don't tell" drummed out an estimated 14,000 LGBTQ service members from 1994 to 2010 before being ruled unconstitutional and repealed. 

Leon Panetta, the secretary of defense who oversaw the repeal in 2011, last month acknowledged to CBS News, "there wasn't a lot of thought about the people who'd been discharged, who'd gone through hell on this issue, about: 'What do we do about them?' And in some ways I regret that." 

Gillibrand, a member of the Senate Armed Services Committee, says the number of veterans targeted for their sexuality is significant: some 100,000 since World War II. 

Attorney Christie Bhageloe is the director of a pro bono discharge upgrade program run by the Veterans' Consortium. Her biggest concern is the lack of awareness among these veterans that a discharge upgrade is even possible. Of the 1,200 requests she gets each month, less than 1% are from LGBTQ veterans. "That's what worries me. I know they're out there," she said. 

There are also problems with the discharge upgrade process itself, which Bhageloe and other veterans have said is nearly impossible without the help of a lawyer. While the Pentagon told CBS News veterans can fill out a simple two-page application and legal representation isn't required, Bhageloe says it's not that simple. In her experience, veterans have a less than 1 in 3 success rate when applying without legal counsel. 

Elaine Rodriguez learned that firsthand. In 2017 she applied to have her discharge changed to "honorable" but was only granted partial relief in the form of a "general" discharge. The Board for the Correction of Naval Records wrote in their decision "the members did not want to upgrade the discharge to honorable because the NJP [non-judicial punishment] included the charge of making a false official statement." One member of the board recommended they deny her request entirely. And the language that stings the most — "misconduct commission of a serious offense" — that didn't change either.

"I just don't understand. It just makes me feel like, what did I do so wrong?" Rodriguez said. 

The Navy told CBS News it could not comment on Rodriguez' case, citing privacy reasons. 

Sen. Gillibrand has been trying to force the Pentagon to act for years with a bipartisan bill called The Restore Honor to Service Members Acts. Among its provisions is a mandate to assemble a team that would identify and reach out to all veterans who may have been subjected to these discriminatory policies. 

"They really need to be trying much, much harder. And that's something that this bill could create the will to do," Gillibrand said. "DOD has been fighting us every step of the way. …If they wanted this done, it would be done."

Ultimately though, she says pressure really needs to come from the top.  

"If you have a champion in the White House, it makes a big difference. So if this becomes something that President Biden wants to actually accomplish during his White House, it'll make it that much easier," she said. "And I'm optimistic that with his help, we can get this done."

In an earlier statement to CBS News, the Department of Defense said it "has conducted several outreach campaigns to inform all veterans who believe they have suffered an error or injustice to seek correction to their military records" adding it also launched "an individualized letter campaign, mailing over 2,000 letters to individuals who may have been adversely impacted by the DADT ["don't ask, don't tell"] policy."

Elaine Rodriguez hopes to find a pro bono lawyer to take on her case and try again.