Author: M-VETS

Written by Spring 2023 M-VETS Student Advisor Connor Brantley.

Background

On December 20, 2019, President Donald Trump signed the National Defense Authorization Act for Fiscal Year 2020 (NDAA) into law. As part of the Act, Congress created a new remedy for DOD Service members separated on or after December 20, 2019 seeking an appeal of their discharge characterization and who have exhausted all available appeals with the appropriate Service Discharge Review Board (DRB) and Board for Correction of Military/Naval Records (BCM/NR).[1] On April 7, 2021, the DOD announced the creation of the Discharge Appeal Review Board (DARB) which would fulfil the function as prescribed by the 2020 NDAA. [3] Decisions issued by the DARB are final, though non-binding. [4] If the DARB recommends that the petitioner’s service characterization be upgraded, the Secretary of the Military Department of the separated service member must approve it. [5] Conversely, if the DARB does not recommend an upgrade, there is no possibility for further administrative appeal or reconsideration of recommendations by the DARB. [6]

One of the key differences between the recently established DARB and other appeal options for petitioners is that the DARB operates independently of the military services and sits at the Office of the Secretary of Defense level, even though it is administered by the Air Force.[7] Furthermore, the DARB is a strict document review board and will only consider records from the BCM/NR case file of the petitioner. A petitioner may not submit new evidence to the DARB unless they submit a reconsideration request to their BCM/NR and receive a decision.[8]

DARB’s Purpose & Congressional Intent

While the DoD has marketed the DARB as “another opportunity” for veterans, it may not be clear to some why Congress has decided to establish another “cog” in the military bureaucracy. [9] It is impossible to pinpoint exact congressional intent, but DARB Chair Phyllis Joyner has provided insight. Joyner stated that the “possibility of different outcomes, as each service has its own regulations for discharge…and some may emphasize certain factors over others,” is a key factor in the DARB’s existence. [10] After all, a February 2023 report issued by the Government Accountability Office found that while separation boards of the military services generally align with DoD policy, disparities do exist—specifically reviewing the Air Force. [11] Joyner also pointed to the disparity in the decision process, saying “the combination of service culture, command discretion, and service characterization being determined by boards or courts composed of different service members leads to individualized outcomes, which may, at times, create unintended disparity.” [12]

DARB’s Current Effectiveness

Due to the DARB’s newness, there is not a great deal of data available on its effectiveness. At present, there is no publicly available data on DARB-issued recommendations and petitioner success rate. Although the DARB is intended to provide service members with a final chance to appeal their discharges, it is still unclear how effective it will be in achieving this goal.

For the DARB to be successful in its goal of serving as a neutral document review board, it must first be transparent and accessible. Anyone with experience attempting to locate DRB records knows the challenging research process associated with the publicly available reading rooms. Often, case law can be difficult to find and read. The DARB should make its recommendations publicly available in a searchable reading room and should allow potential petitioners and the public to sift through its data by date, keyword, and other fields to make it easier to locate.

Furthermore, the DARB should strive for expediency in its review process. Although a petitioner deserves the most thorough review possible, delays and the overall length of time between the time a petitioner submits a DRB petition and the time it takes to receive a response can be quite burdensome and may discourage potential petitioners with strong claims from seeking a review of their discharge. By serving as a strict document review panel, the DARB has the opportunity to more efficiently review cases and provide petitioners with the answers they have likely spent a significant amount of time belaboring over.

While the DARB provides veterans wishing to appeal their discharge a glimmer of hope, a significant more amount of data is needed to determine just how much of an impact its introduction will be and in order to be valuable to veterans, it must abide by principles of fairness, transparency, and expediency.

[1] S.1790 – National Defense Authorization Act for Fiscal Year 2020.

[2] Id.

[3] United States Department of Defense, DOD Announces New Discharge Appeal Review Board Option, https://www.defense.gov/Newsroom/Releases/Release/Article/2564345/dod-announces-new-discharge-appeal-review-board-option/.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] United States Department of Defense, Review Board Gives Vets Another Chance to Upgrade Discharge Characterization, https://www.defense.gov/News/News-Stories/Article/Article/3045028/review-board-gives-vets-another-chance-to-upgrade-discharge-characterization/.

[10] Id.

[11] United States Government Accountability Office, Administrative Separation Boards: Air Force Should Clarify Member Qualifications, https://www.gao.gov/assets/gao-23-105780.pdf.

[12] United States Department of Defense, Review Board Gives Vets Another Chance to Upgrade Discharge Characterization, https://www.defense.gov/News/News-Stories/Article/Article/3045028/review-board-gives-vets-another-chance-to-upgrade-discharge-characterization/.

Written by Spring 2023 M-VETS Student Advisor Megan Jones.

Background

The United States military is experiencing arguably the most challenging recruiting environment since the establishment of the all-volunteer force in 1973.

In 2022, all branches of the U.S. military struggled to reach their active-duty recruitment goals, with the Army, missing its goal entirely. The Army missed its recruiting goal by 15,00 active-duty soldiers, roughly 25 percent of its target.[i]

Although the branches met their recruiting goals, they did so just barely, and had to implement some major changes to pull it off. The Army, Marines, Navy, and Air Force all accelerated their delayed entry applicants at the end of the last fiscal year, leaving them with a far smaller pool to draw from this year.[ii] Even with the delay both the Navy and the Air Force had to offer extensive financial bonuses and take extreme on-time measures – such as the Navy increasing the maximum enlistment age from 39 to 41.[iii]

Despite these changes, it appears recruitment struggles will worsen in 2023. Except for the Marines, every branch expects to fall short by the end of the 2023 fiscal year. Recently, the Air Force announced it expects to miss its recruiting goals across all three of its components. According to the Vice Chief of Naval Operations, the Navy expects to fall about 6,000 short of its goals for 2023.[iv] The Army projects the largest shortfall of all.

Why is this happening now? No doubt the end of the war in Afghanistan partially explains the current state of unwillingness to join up. For the first time in almost 20 years, American troops are no longer fighting abroad against insurgency and terrorism.[v] However, looking at the bigger picture, it’s this and the convergence of several other negative factors that creates the perfect storm of recruiting challenges and results in the current recruitment crisis.

FACTORS CONTRIBUTING TO THE RECRUITING CRISIS

#1 Low Unemployment and a Tight Labor Market

First, recruiting challenges always increase when unemployment is low, but the tight labor mark further compounds the difficulty.[vi] When the labor market is tight companies are forced to increase wages and offer compelling incentives to attract quality workers – such as major corporations offering starting pay over $15 an hour with generous health and education benefits.[vii] In a tight labor mark intense competition for workers ensues, often leaving present military branches unable to match the benefits and earnings offered by private sector actors.

#2 Smaller Pool of Qualified Applicants

Second, the pool of qualified young people to join the military without needing an exception to the standards is rapidly dwindling.[viii] The percentage has dropped from 29 percent in 2016 to 23 percent in 2022.[ix] More and more young people are disqualified for obesity, drug use or criminal records.

However, satisfying the background and physical checks does not guarantee eligibility for service. Those who get over the initial physical and background hurdles cab later be disqualified for failing to meet the educational requirements for service. Declining test scores are in large part an effect of the COVID-19 pandemic.[x] School closures and remote learning caused test scores to decline dramatically throughout the country. Remote schooling has lowered scores on the ASVAB, the military’s standardized test for potential recruits, by as much as 9 percent.[xi]

#3 Lack of Propensity to Serve

Current recruitment challenges are also driven by a generational lack of interest and unwillingness to serve. An internal Defense Department survey found that only 9 percent of young American eligible to serve in the military without a waiver had any inclination to do so, the lowest number since 2007.[xii] Part of this trend is a lack of knowledge about the opportunities the military offers. With diminishing numbers of veterans in society and a receding presence of military representatives in schools and the community the younger generation receives less exposure to military service than in years past.[xiii] Another reason for young people’s diminished interest in serving relates to the lowered confidence in the military which is discussed further later in this blog post.

#4 Declining Trust in the Military

Lastly, there is a trending decline of public trust in the military. The decline can be attributed to a few reasons. The biggest reason is attributed to an increasing perception that U.S. military leaders are becoming too involved in politics. A recent survey conducted by the Reagan Foundation found 62% of respondents said they were losing trust and confidence because the military leadership is becoming overly politicized.[xiv] Presidential campaigns now routinely roll out lists of hundreds of retired flag officers and include uniformed military in campaign ads.

Another reason concerns increased publicity from partisans on both sides highlighting the different problems facing the military. Democrats criticize the small but significant problem of extremists in the military.[xv] Whereas Republicans focus on what they call the increasing “wokeness” in the military, accusing the Biden administration of weakening military strength by promoting critical race theory and LGBTQ+ individuality.[xvi]

The public’s confidence in military officials and leaders is lowered further by recent mishandling of military operations such as the disastrous withdrawal from Afghanistan in 2022.[xvii] Other reasons include skepticism in the performance and competence of presidents as the commander in chief and increased concern over military leadership’s strategy – or its seemingly lack thereof – towards the perceived threat posed by China.[xviii]

SUGGESTED CHANGES TO RESOLVE RECRUITING CHALLENGES

#1 Surpassing the Private Sector

If the military seeks to entice quality recruits for civilian and non-civilian jobs, then it must focus on tailoring competitive compensation and benefit programs to the unique needs of the targeted generation. Recently, President Biden signed the 2023 National Defense Act (NDAA) into law, ensuring military members will receive a 4.6 percent pay increase in 2023.[xix] This is the largest military pay raise in 20 years but may not be enough alone to incentivize enlistment. To truly compete with the private sector, recruitment efforts should highlight the opportunities that are unique to service such as career diversity, travel, and education.

#2 Improving Eligibility

With a shrinking pool of volunteers, the military needs to consider adjusting some outdated entry standards. Specifically, those policies relating to cannabis use, academic performance, and physical and mental health.

Although the military has prided itself on being a relatively drug-free force, societal attitudes towards certain recreational drugs like Marijuana has rapidly changed and led 21 states to legalize its use.[xx] Current military entry standards mean 22 percent of the 19–29-year-old population will require a waiver for drug use alone.[xxi] And while waivers do exist, the waiver process carries a lengthy wait time and viability depends on the amount of use, whether it was for medical or recreational purposes, and the logistical needs of the military branch in question. Consequently, a major chunk of otherwise eligible applicants often are disqualified from service for past drug use. Thus, it may be time for the military to reevaluate its blanket prohibition against the use of Marijuana while continuing drug testing during the recruiting process.

Funding for educational and nutrition programs. For example, a pilot program at Fort Jackson called the Future Soldier Preparatory Course has been successful in helping selected Army recruits overcome obstacles to military duty related to academic performance and physical health barriers.[xxii] For recruits barred due body weight issues, implementing a program through a national fitness chain using in-person or virtual coaching could be a more cost-efficient alternative. The services should also reconsider its practice of immediately disqualifying individuals who admit to seeking mental health treatment. With a growing awareness of how common and treatable most mental health issues are, the military does itself a disservice in denying otherwise eligible individuals.[xxiii] Further, its current mental health policies have the negative consequences of forcing a potential recruit to either deny himself or herself help or lie.

#3 Increasing Propensity to Serve

Increasing propensity to serve starts with community outreach and building up the awareness and attraction of service. Military services can expand Americans’ personal connections with those in uniform by making more of an effort to get servicemembers out in the public. In addition, the services should emphasize the unique nature of service that matter to the younger generation such as opportunities for diverse experiences and career paths within the stable employment offered.[xxiv]

Another way to increase young people’s exposure to the value of military service is by increasing the number of Junior Reserve Officer Corps (JROTC) programs in middle and high schools across the country. JROTC programs are disproportionately concentrated in the South and is underrepresented in almost two-thirds of U.S. states.[xxv] Increasing the number and location of JROTC programs provides more students leadership and citizenship instruction and exposes them to the U.S. military without obliging them to join. Other options include exploring new programs designed to incentivize and motivate young people – such as a program to forgive student debt for recruits who successfully complete their initial tour of training.[xxvi]

#4 Building Back Trust Through Apoliticism

Lastly, military officials need to make a concerted effort to stay out of politics. First, the military needs to do more to resist civilian leaders’ efforts to involve it in partisan politics. Beyond intimating disagreement, military leaders must make their opposition clear through decisive acts such as declining to passively stand behind a political leader at rallies or press conferences when he or she is making inflammatory statements about political issues or opponents.[xxvii] Second, military forces should not be deployed in politically charged, domestic situations unless absolutely necessary. Managing protests is a task for law enforcement, not active troops. Finally, all attempts by political leaders to politicize the military must be called out and publicly admonished – by media, other politicians, and military leaders – for compromising the military’s nonpartisan ethic.

[i] David Barno and Nora Bensahel, Addressing the U.S. Military Recruiting Crisis, War on the Rocks (Mar. 10, 2023), https://warontherocks.com/2023/03/addressing-the-u-s-military-recruiting-crisis/.

[ii] Id.

[iii] See id.

[iv] Meghann Myers, Army, Navy, and Air Force Predict Recruiting Shortfalls This Year, Military Times (Apr. 19, 2023), https://www.militarytimes.com/news/your-military/2023/04/19/army-navy-and-air-force-predict-recruiting-shortfalls-this-year/.

[v] See Barno and Bensahel.

[vi] Heather Mongillo, Tough Military Recruiting Environment is About More than Low Unemployment, Experts Say, USNI News (Dec. 1, 2022), https://news.usni.org/2022/12/01/tough-military-recruiting-environment-is-about-much-more-than-low-unemployment-experts-say.

[vii] Thomas W. Spoehr, The Administration and Congress Must Act Now to Counter the Worsening Military Recruiting Crisis, The Heritage Foundation (Jul. 28, 2022), https://www.heritage.org/defense/report/the-administration-and-congress-must-act-now-counter-the-worsening-military.

[viii] Thomas Novelly, New Study Finds Even More Young Americans Are Unfit to Serve, Military Officers Association of America (Sep. 30, 2022), https://www.moaa.org/content/publications-and-media/news-articles/2022-news-articles/new-study-finds-even-more-young-americans-are-unfit-to-serve/.

[ix] See Thomas W. Spoehr, The Administration and Congress Must Act Now to Counter the Worsening Military Recruiting Crisis, The Heritage Foundation (Jul. 28, 2022), https://www.heritage.org/defense/report/the-administration-and-congress-must-act-now-counter-the-worsening-military.

[x] See Barno and Bensahel.

[xi] See id.

[xii] Courtney Kube and Molly Boigon, Every Branch of the Military is Struggling to Make its 2022 Recruiting Goals, Officials Say, NBC News (Jun. 27, 2022), https://www.nbcnews.com/news/military/every-branch-us-military-struggling-meet-2022-recruiting-goals-officia-rcna35078.

[xiii] Hope H. Seck, Facing a ‘Perfect Storm’: The Military Recruiting Crisis, Military Officers Association of America (Dec. 14, 2022), https://www.moaa.org/content/publications-and-media/news-articles/2022-news-articles/facing-a-perfect-storm-the-military-recruiting-crisis/.

[xiv] Kori Schake, Don’t Drag the Military into Politics, War on the Rocks (Dec. 13, 2022), https://warontherocks.com/2022/12/dont-drag-the-military-into-politics/.

[xv] Id.

[xvi] See id.

[xvii] Thomas W. Spoehr, Drop in Public Trust in Military Officers Portends Danger, The Heritage Foundation (Jan. 25, 2022), https://www.heritage.org/defense/commentary/drop-public-trust-military-officers-portends-danger.

[xviii] The 2022 Reagan National Defense Survey, Reagan Institute Summary, (November 2022), https://www.reaganfoundation.org/reagan-institute/centers/peace-through-strength/reagan-institute-national-defense-survey/.

[xix] Brittany Crocker and Ryan Guina, 2023 Military Pay Charts, The Military Wallet (Jan. 24, 2023), https://themilitarywallet.com/2023-military-pay-charts/#:~:text=President%20Biden%20has%20signed%20the,Advertising%20Disclosure.

[xx] Schyler Peck, Refer Recruits: Why the US Must Change its Stance on Marijuana, Task & Purpose (Sept. 8, 2022), https://taskandpurpose.com/opinion/us-military-change-marijuana-policy/.

[xxi] See id.

[xxii] See Barno and Bensahel.

[xxiii] See id.

[xxiv] Center for Strategic International Studies, Bad Idea: Relying on the Same Old Solutions to Meet the Military Recruitment Challenge, CSIS – Commentary (Mar. 10, 2023) https://www.csis.org/analysis/bad-idea-relying-same-old-solutions-meet-military-recruitment-challenge.

[xxv] See Barno and Bensahel.

[xxvi] See Thomas W. Spoehr, The Administration and Congress Must Act Now to Counter the Worsening Military Recruiting Crisis, The Heritage Foundation (Jul. 28, 2022), https://www.heritage.org/defense/report/the-administration-and-congress-must-act-now-counter-the-worsening-military.

[xxvii] Risa Brooks, What Can Military and Civilians do to Prevent the Military’s Polarization, War on the Rocks (Apr. 27, 2020), https://warontherocks.com/2020/04/what-can-military-and-civilian-leaders-do-to-prevent-the-militarys-politicization/.

Written by Spring 2023 M-VETS Student Advisor Kyle Elzey.

Background

On August 24^th, 2021, following the approval of the Pfizer BioNTech vaccine by the Food and Drug Administration (FDA), the Secretary of Defense (SECDEF) issued the Mandatory Coronavirus Disease 2019 (COVID-19) Vaccination of Department of Defense (DoD) Service Members memorandum, to ensure the health and operational readiness of the Force.[1] To effectuate this intent, the memorandum directed the “Secretaries of the Military Departments to immediately begin full vaccination of all members of the Armed Forces under DoD authority on active duty or in the Ready Reserve, including the National Guard, who are not fully vaccinated against COVID-19.”[2] While the memorandum unequivocally directs the vaccination of all service members, it instructs the Military Departments to implement the requirements of the COVID-19 mandate in line with existing DoD policies and procedures, to include pre-established medical and administrative exemptions.[3] However, unlike the other 17 vaccinations administered by the DoD,[4] thousands of servicemembers would apply for religious and medical exemptions to the COVID-19 vaccination.[5] In total, 8,400 service members would outright decline the vaccination and subsequently be discharged, for failure to obey a lawful order.[6] As of December 20^th, 2022, the DoD reported that 2,000,195 service members have been vaccinated against COVID-19,[7] accounting for roughly 96 percent of the Active and Reserve Forces.[8]

Recission of the COVID-19 Mandate

Unlike other vaccinations, the COVID-19 vaccine has been highly politicized due to partisan divisions, misinformation, and concerns over personal liberties.[9] Due in part to the political contention and concerns that the vaccine mandate has harmed military recruitment and retention,[10] Congress directed the DoD to repeal the COVID-19 mandate in the National Defense Authorization Act (NDAA) for Fiscal Year 2023.[11] In response, on January 10^th, 2023, the SECDEF rescinded the COVID-19 mandate by memorandum, and directed that no service members currently serving in the Armed Forces should be separated based on a refusal to receive the COVID-19 vaccination if they sought accommodation on religious, administrative, or medical grounds.[12] The memo further directed that for current service members who requested such exemptions, the Military Departments should update the service member’s records to remove adverse action solely associated with the denial of the COVID-19 vaccination to include letters of reprimand.[13]

Recourse Options for Previously Discharged Service Members

While the recession provides relief to current service members pending separation for non-compliance with the mandate, it does not extend new relief to the 8,400 service members previously discharged. For service members discharged between August 24^th, 2021, and August 24^th, 2023, Congress precluded the DoD from awarding any characterization less than a General, Under Honorable Conditions discharge for failure to obey a lawful order to receive the COVID-19 vaccine.[14] However, service members who believe they should have received an Honorable characterization rather than a General, Under Honorable Conditions discharge can still petition their respective Discharge Review Board (DRB) for a discharge upgrade.

To have a discharge characterization upgraded by a DRB from General, Under Honorable Conditions to Honorable, the service member would need to demonstrate that the discharge was either improper or inequitable.[15] For a discharge to be found improper there must be “an error of fact, law, procedure, or discretion associated with the discharge that was prejudicial to the veteran’s rights, or (B) where a retroactive “change in policy . . . requires a change in the discharge.”[16] Based on this standard a DRB is unlikely to grant a discharge upgrade on the basis of impropriety as a refusal to obey a lawful order is a flagrant violation of military discipline and regulations, and therefore unlikely to be found in error of fact, law, procedure or discretion. Subsequently, unless further action is taken by Congress or by the DoD to retroactively extend relief to those previously discharged for refusal to comply with the vaccine mandate, a discharge upgrade request on the basis of impropriety is unlikely to result in a discharge upgrade.

However, due to inconsistencies in how discharge characterizations have been assigned for vaccine mandate non-compliance, service members may argue for a discharge upgrade on the basis of inequity. Under this standard, a discharge is considered equitable unless (A) the current discharge policies and procedures are materially different than those that led to the veteran’s discharge, (B) the discharge was inconsistent with disciplinary standards at the time of discharge, or (C) the veteran’s service record shows that relief is warranted after considering the applicant’s quality of service and capability to serve.^[17] Based on this service members may claim that the disparities in discharge characterizations between the services demonstrates inconsistent disciplinary standards. For example, the Navy has to date given all its personnel who refused the vaccination an Honorable discharge characterization, whereas the Marine Corps has separated 78% of its personnel for the same offense with a General, Under Honorable Conditions characterization.[18] Therefore, service members may have a valid basis to request a discharge upgrade on the grounds of inequity, if they can demonstrate a disparity in discharge characterizations across the services, and appeal to the need for consistent application of disciplinary standards across the DoD.

[1] See Lloyd J. Austin, Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members, at 1 (Aug. 24, 2021).

[2] Id.

[3] See id.

[4] See Khaleda Rahman, Full List of Vaccines Mandated by the U.S. Military, Newsweek (Oct. 21, 2021) (identifying the 17 different vaccines the DoD already administers to service members) https://www.newsweek.com/list-vaccines-mandated-us-military-covid-1641228.

[5] See Lolita C. Baldor, Pentagon Drops COVID-19 vaccine requirements for troops. Associate Press (Jan. 10, 2023) https://www.pbs.org/newshour/politics/pentagon-drops-covid-19-vaccine-requirement-for-troops; Meghann Myers, Troops opposed to the COVID-19 vax can get a waiver, but they’re rare (Oct. 18 2021) (describing how prior to COVID-19 vaccinations, request for religious and administrative exemptions to vaccines were rare, and nascently tracked by the Services) https://www.militarytimes.com/news/your-military/2021/10/18/troops-opposed-to-the-covid-19-vax-can-get-a-waiver-but-theyre-rare/.

[6] See Lolita C. Baldor, Pentagon Drops COVID-19 vaccine requirements for troops. Associate Press (Jan. 10, 2023) https://www.pbs.org/newshour/politics/pentagon-drops-covid-19-vaccine-requirement-for-troops;

[7] See U.S. Department of Defense, Coronavirus: DoD Response (last accessed May 15, 2023) https://www.defense.gov/Spotlights/Coronavirus-DOD-Response/.

[8] See Lloyd J. Austin, Recission of August 24, 2021 and November 30, 2021 Coronavirus Disease 2019 Vaccination Requirements for Members of the Armed Forces, at 1 (Jan. 10, 2023).

[9] See Hart, P.S., Chinn, S., & Soroka, S. “Politicization and Polarization in COVID-19 News Coverage”, Sci. Comm. 42, 679–697 (Oct. 2020).

[10] See Lolita C. Baldor, Pentagon Drops COVID-19 vaccine requirements for troops. Associate Press (Jan. 10, 2023) https://www.pbs.org/newshour/politics/pentagon-drops-covid-19-vaccine-requirement-for-troops.

[11] See National Defense Authorization Act for Fiscal Year 2023, H.R.7900, 117th Cong. § 525 (2022).

[12] See Lloyd J. Austin, Recission of August 24, 2021 and November 30, 2021 Coronavirus Disease 2019 Vaccination Requirements for Members of the Armed Forces, at 1 (Jan. 10, 2023).

[13] See id.

[14] See National Defense Authorization Act for Fiscal Year 2022, S.1605, 117th Cong. § 736 (2021).

[15] See 32 C.F.R. § 70.9.

[16] See id.

[17] See id.

[18] See Greg Hadley, Nearly All Airmen Discharged Over COVID-19 Vaccine Get General Discharges, Air & Space Forces Magazine (Apr. 29, 2022) https://www.airandspaceforces.com/nearly-all-airmen-discharged-over-covid-19-vaccine-get-general-discharges/.

 

Written by Spring 2023 M-VETS Student Advisor Hanna-Elizabeth B. Montgomery.

The Veterans Auto and Education Improvement Act of 2022 was signed into law on January 5, 2023.[1] This Act makes two major changes to the Service Members Civil Relief Act, specifically concerning military families. The first change allows military spouses to receive reciprocity for their professional licenses when they move to a new state under Permanent Change of Station (PCS) orders. The second change allows military families flexibility in where they file state taxes.

1. PORTABILITY OF PROFESSIONAL LICENSES

Under PCS Orders, the Department of Defense (DOD) moves more than 400,000 service members and their families annually.[2] Every year, 14.5% of the military spouse population moves across state lines compared to the 1.1% of civilians that move across state lines.[3] Military OneSource, the Department of Defense’s (DOD) information portal for military families, estimates that “up to 34% of military spouses in the labor force are required to be fully licensed; and of those spouses, 19% experience challenges maintaining their licenses.”[4] The current Secretary of Defense, Secretary Austin, has identified this challenge as a top concern and describes the DOD’s commitment to military members and their families as “a sacred obligation … Our military families provide the strong foundation for our Force, and we owe them our full support.”[5]

The Veterans Auto and Education Improvement Act aims to alleviate this burden by ensuring that military spouses and servicemembers can transport their professional license from state to state. Specifically, when a servicemember or spouse of a servicemember relocated due to military orders, their license from the previous state must be considered valid at a “similar scope of practice” in the new state. The servicemember or spouse must (1) provide a copy of the military orders to the licensing authority in the new state; (2) remain in good standing with all licensing authorities that have issued licenses to the servicemember or spouse; and (3) submit to the authority of the new licensing jurisdiction for the purposes of “standards of practice, discipline, and fulfillment of any continuing education requirements.”[6] Law licenses are the only professional license specifically exempt under this statute.[7]

As of May 2023, there is still not a uniform process for military spouses or servicemembers to transfer their license from one state to another. In the wake of this act, multiple states, like Pennsylvania, Arkansas, and Massachusetts, have signed interstate compacts which create a uniform and relatively simple process for transferring licenses between states.[8] If there is an interstate compact agreement in a state, that process will govern.[9] The interstate compact agreements vary by profession and not all states have one. In states that lack interstate compacts, military families should check with the licensing authority in their new state. Military OneSource estimates that 66% of state licensing boards allow military spouses to begin working within 30 days.[10] Further, Secretary Austin, directed the DOD to “accelerate the development of seven additional occupational licensure interstate compacts with organizations representing multiple professions” in September of 2022.[11]

In addition to advocating for interstate compacts and reciprocity, the military provides financial support for transferring professional licenses. The Spouse License Reimbursement Program allows military spouses to be reimbursed for their licensing costs associated with a PCS move.[12] While each branch of the military has its own requirements for how to apply for the reimbursement, all can grant reimbursements of up to $1,000.[13]

2. RESIDENCE FOR TAX PURPOSES.

Filing taxes for military families is typically complicated. State taxes are usually filed based on someone’s state of residency. A residence is relatively transient. Often residency is determined by physical presence in a state. Most states have statutes defining how much of the year a person must be physically present in the state to be taxed in that state. For Virginia, a person needs to have a residence in Virginia for 183 days of the taxable year to be taxed in Virginia.[14] Other states, like California, requires taxes to be paid based off domicile as well as residency.[15]

Legally, a residence and a domicile are different, though the difference is nuanced. Someone’s domicile is his or her “true, fixed, and permanent home,” to which he or she has the “intention of returning whenever he is absent therefrom.”[16] Domicile is sticky and is difficult to remove.[17] One can change his or her domicile by moving to a different domicile (state) and intending to remain in the new domicile.[18] Servicemembers typically move from state to state under Permanent Change of Station orders. The servicemember is living in the new state for so long as their orders allow, and then they will move to another state. Although servicemembers are moving to and residing in a new state, they have no intent to remain in the new state.

Because servicemembers do not have intent to remain in the state they move to, their domicile often remains with the state in which they entered in the military. To accommodate servicemembers unique situation, Congress passed the servicemembers civil relief act in 2003. This act allowed servicemembers to file taxes in either their place of residence or their domicile. Subsequent to the SCRA, Congress passed the Military Spouses Residency Relief Act (MSRRA).[19] Since military spouses and their servicemembers often file joint taxes, the MSRRA aims to simplify the burden military families faced in becoming required to file taxes for differing states due to a PCS. The MSRRA allowed military spouses to declare the same state of residency and domicile as their servicemember spouse.[20]

Now the Veterans Auto and Education Improvement Act provides multiple options for military families to file taxes. The law states that “for any taxable year of the marriage, a servicemember and the spouse of such servicemember may elect to use for purposes of taxation, regardless of the date on which the marriage of the servicemember and the spouse occurred, any of the following: (A) The residence or domicile of the servicemember. (B) The residence or domicile of the spouse. (C) The permanent duty station of the servicemember.” [21] This means that servicemembers and spouses can choose between which state they file income taxes in. Certain states, like Florida and Texas, are well known in the military community for having no state income tax.

This Act can give servicemembers and their families up to four different states to file their taxes in. Servicemembers domicile is typically the place he or she entered in the military. Spouses may have a separate domicile from before the marriage if he or she lived in a state and had intent to remain there before marrying the servicemember. If the servicemember and his or her spouse are living apart, then the spouse and servicemember may have a different residence. The law allows servicemember and their spouse to elect the residence of either the servicemember or the spouse. Finally, the servicemember can file at his or her permanent duty station. In the National Capital Region, a servicemember may reside in a state that is not where he or she is stationed. For example, a servicemember may live in Maryland, but work at the Pentagon, in Virginia.

Conclusion

These changes are expected to help military families navigate the geographic instability of military life. The military spouse licensing relict should greatly dimmish the waiting time and costs associated with obtaining a new license. As Secretary Austin explained, “military spouses provide the strong foundation upon which their loved ones in uniform stand – and our communities and our Nation rely on their resilience. We owe them our energetic, unwavering support.”[22]

[1] P.L. 117-333, Veterans Auto and Education Improvement Act of 2022.

[2] PCS: The Basics of Permanent Change of Station, Military OneSource, Jul. 8, 2022, https://www.militaryonesource.mil/moving-housing/moving/planning-your-move/pcs-the-basics-about-permanent-change-of-station/

[3] Enhanced Military Spouse Licensure Portability, 2022,  https://statepolicy.militaryonesource.mil/key-issue/enhanced-military-spouse-licensure-portability/2022

[4] Id.

[5] Llyod Austin, Secretary of Defense, Taking Care of Our Service Members and Families Memorandum, Sept 22, 2022,  https://media.defense.gov/2022/Sep/22/2003083398/-1/-1/0/TAKING-CARE-OF-OUR-SERVICE-MEMBERS-AND-FAMILIES.PDF (hereinafter “Austin”).

[6] P.L. 117-333, SEC. 705A(a).

[7] The Military Spouse J.D. Network advocates for licensing accommodations for military spouse attorneys. Currently, 44 states have licensing accommodations for military spouse attorneys, and MSJDN has efforts underway in four other states. Rule Change, MSJDN, https://msjdn.org/rule-change/.

[8] Gross, Natalie, It’s Getting Easier For Military Spouses to Transfer Professional Licenses, Mar. 18, 2023, https://thespouseangle.com/news/its-getting-easier-for-military-spouses-to-transfer-professional-licenses

[9] Smith, Dawn, What to Know About the 2023 Military Spouse Licensing Relief Act, Feb. 3, 2023, https://blog.militarybyowner.com/what-to-know-about-the-2023-military-spouse-licensing-relief-act

[10] Military Spouse Licensure Reports, 2021 Report, https://www.militaryonesource.mil/data-research-and-statistics/reports/military-spouse-licensure-reports/.

[11] Austin, supra n.5.

[12] See License and Certification Reimbursement for Spouses, May 26, 2022, https://www.dcms.uscg.mil/Our-Organization/Assistant-Commandant-for-Human-Resources-CG-1/Director-of-Military-Personnel-CG-13/Military-Personnel-Policy-CG-133-/Spouse-License-Reimbursement/

[13] Transferring Your Professional License; What’s Involved, Military OneSource, Mar. 25, 2022, https://www.militaryonesource.mil/education-employment/seco/transferring-your-professional-license-what-s-involved/

[14] 23 VAC10-110-30. Definitions.

[15] See Residents, State of California Franchise Tax Board, https://www.ftb.ca.gov/file/personal/residency-status/index.html.

[16] Stine v. Moore, 213 F.2d 446, 448 (1954).

[17] See McDonald v. Mabee, 243 U.S. 90 (1917).

[18] Mitchell v. United States, 88 U.S. 350 (1875).

[19] The Military Spouses Residency Relief Act, Military OneSource, Nov. 8, 2021, https://www.militaryonesource.mil/financial-legal/legal/military-spouses-residency-relief-act/

[20] 111 P.L. 97, Military Spouses Residency Relief Act.

[21] P.L. 117-333, Veterans Auto and Education Improvement Act, Section 18.

[22] Austin, supra n. 5.

Written by Fall 2022 M-VETS Student Advisor Grace Roman.

Introduction

On December 27, 2021, President Biden signed the National Defense Authorization Act for Fiscal Year 2022 (NDAA 22).[1]  NDAA 22 includes many notable changes to the Uniform Code of Military Justice (UCMJ) that must be fully implemented by December 27, 2023.

The most sweeping changes to the UCMJ occurred in the wake of the murder of Army Specialist Vanessa Guillen.  SPC Guillen disappeared from Fort Hood on April 22, 2020.[2]  Her remains were found on June 30, 2020 after being murdered by another soldier.[3]  Before her death, SPC Guillen reported to friends and family members that she was being sexually harassed.[4] Following SPC Guillen’s murder, many across the country were outraged, and calls began for reform to military command policy governing many offenses.  The UCMJ reforms in NDAA 22 are the culmination of these calls, marking “historic changes to how the Armed Services will prosecute certain victim-centric offenses, including sexual assault. . . .”[5]

Victim-Centric Changes

            Special Trial Counsel

Before NDAA 22, military commanders were responsible for deciding to refer all cases to court-martial. This structure had been the subject of reform efforts for nearly two decades, with even retired generals speaking out.  Retired Army Major General Dennis Laich is one such retired high-ranking officer, who said, “We have relied on the chain of command to deal with this issue, and the chain of command has failed for decades.  America gives us their sons and daughters, and we’ve failed to discharge the responsibility to take care of them.”  SPC Guillen’s death was the force that finally moved the needle to change this structure.  Accordingly, Section 531 of NDAA 22 shifts the referral responsibility to a newly created Special Trial Counsel (STC), giving the STC “exclusive authority” regarding the decision to dismiss, refer, or offer a plea bargain for certain violations of the UCMJ.[6]  These specific crimes include:

• Article 117a (Wrongful Broadcast or Distribution of Intimate Visual Images);
• Article 118 (Murder);
• Article 119 (Manslaughter);
• Article 120 (Rape and Sexual Assault Generally);
• Article 120b (Rape and Sexual Assault of a Child);
• Article 120c (Other Sexual Misconduct);
• Article 125 (Kidnapping);
• Article 128b (Domestic Violence);
• Article 130 (Stalking);
• Article 132 (Retaliation);
• Article 134 (Child Pornography)
• Article 82 (Solicitation to commit one of the foregoing offenses);
• Article 81 (Conspiracy to commit one of the foregoing offenses; and
• Article 80 (Attempt to commit one of the foregoing offenses.[7]

The aim of the implementation of the STC is to eliminate a command’s discretion in charging decision making, instead placing the decision-making authority into the hands of a neutral third party.  Following this change, “‘[u]nit leaders will still be responsible for setting a proper command climate and still must play a role in preventing and addressing sexual assault, harassment, and other problems . . .’ [but will] no longer be at the forefront of prosecuting sexual assault and other serious crimes for fear that these acts often go unprosecuted by convening authorities.”[8]

Many have openly criticized NDAA 22’s creation of the STC and its removal of command authority over charging decisions in many UCMJ crimes.  Chairman of the Joint Chiefs of Staff General Mark Milley wrote to the Senate Armed Services Committee expressing his view that “removing commanders from prosecution decisions, process and accountability may have an adverse effect on readiness, mission accomplishment, good order and discipline, justice, unit cohesion, trust, and loyalty between commanders and those they lead.”[9] Many are confused by the fact that commanders are entrusted with the authority to risk their troops’ lives in combat but not with the military justice charging decisions.[10] Some feel the STC procedures constitute “[p]lauging the justice process with bureaucracy. . . .”[11] Others still are concerned that the lead SEC is still a commissioned officer (an O-7 or higher), leaving doubt whether the STC is sufficiently independent.[12] Because the STC-related changes will not be fully implemented until late 2023, it is too soon to tell whether these concerns will actualize.

Codification of Sexual Harassment

In addition to the implementation of the STC to oversee charging decisions in victim-centric crimes, NDAA 22 also required the codification of sexual harassment as a UCMJ crime. Section 539D(b) of NDAA set out the crime’s elements as follows:

• that the accused knowingly made sexual advances, demands or requests for sexual favors, or knowingly engaged in other conduct of a sexual nature;
• that such conduct was unwelcome;
• that, under the circumstances, such conduct—
• would cause a reasonable person to believe, and a certain person did believe, that submission to such conduct would be made either explicitly or implicitly, a term or condition of that person’s job, pay, career, benefits, or entitlements;
• would cause a reasonable person to believe, and a certain person did believe, that submission to, or rejection of, such conduct would be used as a basis for decisions affecting that person’s job, pay, career, benefits, or entitlements; or
• was so severe, repetitive, or pervasive that a reasonable person would perceive, and a certain person did perceive, an intimidating, hostile, or offensive working environment; and
• that, under the circumstances, the conduct of the accused was—
• to the prejudice of good order and discipline in the armed forces;
• of a nature to bring discredit upon the armed forces; or
• to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.”

The codification of sexual harassment in the UCMJ marks a monumental step toward addressing sexual violence in the military, but there are still potential problems with its implementation.  First, the STC does not have charging authority in sexual harassment cases, as it is not one of the enumerated offenses under the STC’s control.  This was a required concession to congressional opponents of the military justice changes in NDAA 22 in order to garner enough votes.[13] This concession is particularly alarming when SPC Guillen’s murderer had been previously credibly accused of sexual harassment, which his command declined to charge.[14] Though Army investigators concluded that the murderer’s prior sexual harassment allegations were unrelated to SPC Guillen’s murder, had the allegations been properly handled by his command, SPC Guillen’s death could have been avoided. SPC Guillen’s case stands alone as an argument for the newly-created STC to have purview over charging sexual harassment.

Additionally, commands often still opt to charge sexual harassment cases under Article 92 for Failure to Obey a Lawful Regulation, as sexual harassment was previously governed by Army Command Policy in Army Regulation (AR) 600-20, part 7-7.

Conclusion

Major institutions like the military that have a culture of permissiveness regarding sexual assault and harassment cannot be changed overnight. The aforementioned victim-centric changes mark a step forward in challenging that culture.  Though there are potential problems with a piecemeal approach, as seen in the failure to include sexual harassment under the STC’s authority, incremental steps forward mark progress.  Senator Kirsten Gillibrand (D-NY) has outwardly expressed her view that these changes do not go far enough and has vowed to fight for more.  The next few years following the full implementation of NDAA 22’s measures will be highly instructive for the additional changes necessary to reform military culture around victim-centric crimes.

 

[1] Pub. L. No. 117-81, 135 Stat. 1551 (2021).

[2] Johnny Diaz et al., What to Know About the Death of Vanessa Guillen, N.Y. Times, (Nov. 30, 2022), https://www.nytimes.com/article/vanessa-guillen-fort-hood.html.

[3] Id.

[4] Id.

[5] Col. Michael Lewis, Major Changes in the Uniform Code of Military Justice, American Bar Association, (Oct. 7, 2022), https://www.americanbar.org/groups/judicial/publications/judicial_

division_record_home/2022/vol26-1/major-changes-in-uniform-code-of-military-justice/.

[6] 10 U.S.C. § 824a.

[7] David A Schlueter & Lisa Schenck, Recent Legislative Developments: The 2022 National Defense Authorization Act, 2022 Continuing Legal Education and Training Program of the United States Court of Appeals for the Armed Forces, (July 2022), https://www.armfor.uscourts.gov/ConfHandout/2022ConfHandout/SchenckSchlueterRecentLegisDevelopmentsRR.pdf.

[8] Emma K. Hildebrand, Encroaching on Command Authority: How History Informs the “Military Justice Improvement and Increasing Prevention Act,”48 J. Legis. 390, 405 (2022).

[9] Scott Maucione, Military Leaders Push Back on Taking Crimes Out of Chain of Command, Fed. News Network (June 22, 2021), https://federalnewsnetwork.com/defense-main/2021/06/military-leaders-pushback-on-taking-nonmilitary-crimes-out-of-chain-of-command/.

[10] Cristopher W. Behan, Don’t Tug on Superman’s Cape: In Defense of Convening Authority Selection and Appointment of Court-Martial Panel Members, 176 Mil. L. Rev. 190, 193 (2003).

[11] Hildebrand, supra note 8 at 411.

[12] Kristen M. Stone, The Betrayal of the Red, White, & Blue: The Failures of Institutional Self-Regulation & the Military’s #MeToo Movement, 70 Buff. L. Rev 1183, 1199 (May 2022).

[13] Jennifer Steinhauer, Lawmakers Reach Deal to Overhaul How Military Handles Sexual Assault Cases, N.Y. Times, (Dec. 7, 2021), https://www.nytimes.com/2021/12/07/us/politics/military-sexual-assault-congress.html.

[14] Diaz et al., supra.

Written by Fall 2022 M-VETS Student Advisor Liz Faris.

Transgender rights have become a divisive political issue, as some lawmakers attempt to restrict access to bathrooms and medical care. Trump swung the spotlight onto transgender servicemembers in 2017 with a series of tweets.[1] Via tweet, the former president banned transgender people from serving in the military.[2] These statements, which were a surprise to his top military advisors, caused widespread outrage.[3] Biden issued an executive order upon taking office to halt the discharge of any transgender servicemembers,[4] but the military has a long way to go to create equality for transgender servicemembers and veterans.

Historically, transgender individuals were banned from military service because “transsexualism” and “change of sex” disqualified applicants from enlisting.[5] Any prior gender-affirming medical history was also disqualifying.[6] Servicemembers that were discovered to have hidden gender-affirming treatment in order to enlist or who displayed gender dysphoria were involuntarily separated.[7] Moreover, servicemembers that did not dress according to their sex at birth, even while off duty, risked criminal charges.[8]

In 2015, the Secretary of Defense prohibited discharging servicemembers for being transgender and, subsequently, allowed open transgender service in 2016.[9] However, in 2017, Trump tweeted that transgender individuals were not permitted to “serve in any capacity in the U.S. military,” attributing the decision to high medical costs.[10] After lawsuits, Trump modified the ban to prevent transgender people from serving except in limited circumstances.[11] This ban included anyone who was currently taking hormones or had already transitioned.[12] Additionally, anyone with untreated gender dysphoria was required to serve in their sex assigned at birth and was denied gender-affirming treatment during service.[13]

In 2021, President Biden revoked this ban and allowed transgender servicemembers to serve openly.[14] Current Department of Defense instructions provide that transgender servicemembers and veterans who receive a diagnosis of gender dysphoria will receive treatment.[15] These treatments include psychological care and hormone therapy, but notably excludes gender-affirming surgeries.[16] In 2021, the Army and Veteran’s Affairs (VA) health services both reported that they would begin to provide these surgeries to transgender individuals.[17] Despite these reports, these changes have not been implemented and TRICARE insurance does not provide gender affirming surgery for veterans, active duty servicemembers, or their family members.[18] Active duty servicemembers may be eligible for gender-affirming surgery only if they are granted a waiver demonstrating that it is medically necessary.[19]

How many people do these policies impact? A 2015 survey indicates that 18% of transgender respondents had served in the military, nearly twice the rate of that U.S. population.[20] Another study from 2014 reported that there were over 15,000 active duty transgender service members and 134,300 transgender veterans.[21] Both of these surveys likely underreport the number of transgender servicemembers, as transgender people were not permitted to serve openly at the time the surveys were conducted. Since transgender visibility has increased and open service has been permitted since 2015, these numbers would probably be even higher today.

Even though the military now allows open service for the thousands of transgender servicemembers, these soldiers continue to face significant discrimination. A 2015 study showed alarming statistics about issues faced by transgender servicemembers and veterans.[22] Almost 20% of transgender veterans separated from the military specifically to avoid discrimination as a transgender person, with higher rates for Black and Latinx transgender veterans.[23] Additionally, 19% of the veteran respondents believed that being trans was either partially or solely the reason for their discharge.[24] These veterans were also less likely to receive honorable discharges.[25] Moreover, transgender veterans also demonstrated highly concerning rates of homelessness (34%), unemployment (10% compared with 4% among other veterans), serious, recent psychological distress (17% compared with 5% in the general population), and suicide attempts (33% of transgender veterans reported attempting suicide in their lifetime and 4% attempted in the past year, compared with 4.6% and .6% in the general population, respectively).[26] A recent study found that 80% of LGBT servicemembers experienced sexual harassment.[27] Although the military policy regarding transgender servicemembers has changed, this policy doesn’t include initiatives to combat discrimination against transgender servicemembers and veterans and the corresponding mental health issues that this discrimination causes.

One key area that transgender rights advocates are concerned about is discrimination in medical care. Trump cited high medical costs as a primary reason for banning transgender servicemembers.[28] Veterans and active duty servicemembers are still denied gender-affirming surgery as part of their covered treatments,[29] likely in part due to concerns about costs. However, the allegedly “high” cost of transgender medical treatment is unsupported by the data. A 2016 report indicated that gender-affirming medical care would likely cost the military an estimated $2.4 million to $8.4 million each year.[30] Even in the most extreme scenario, this would result in an estimated .13% increase in medical costs.[31] To put this into perspective, the military spends 10 times that amount, $84 million annually, solely on erectile dysfunction medication.[32] The cost of providing transgender servicemembers with medical care is “negligible” and amounts to “a thousandth of 1 percent of the Defense Department’s annual budget.”[33] These reports demonstrate that high costs are not a valid reason for denying transgender servicemembers and veterans gender-affirming treatment.

Another erroneous argument for denying gender-affirming surgeries is that it could result in soldiers being unfit for military service for months following the surgery.[34] However, a study found that fewer than .1% of servicemembers “would seek treatments that could delay deployments.”[35] Additionally, as trans-rights advocates argue, gender-affirming surgeries are not cosmetic or “elective” surgeries, but instead are life-saving surgeries that significantly decrease psychological distress and suicidal ideation in many transgender individuals.[36] The military would not prohibit other life-saving surgeries to servicemembers, even if it made them unfit for service, and should not prohibit gender-affirming surgeries.

Some advocates fear that, even though some gender-affirming treatments are available, discrimination will continue to cause transgender servicemembers to be forced out of the military.[37] For example, all servicemembers are required to meet fitness standards.[38] For transgender servicemembers, this fitness standard presents a complication.[39] Once a servicemember changes their gender marker in the system, which allows them to serve in their chosen gender, they are then held to the fitness standards for that gender.[40] One study found that this can present difficulties for transgender males who are taking testosterone, as they perform significantly worse than their cisgender male counterparts for up to three years after starting hormone treatment.[41] The military has yet to allow for variability in these physical fitness standards based on a servicemember’s changing physiology, unless an exception is approved.[42]

Allowing transgender servicemembers to serve openly is a step in the right direction, but it is just that – one step. The military should implement additional measures to ensure that transgender servicemembers and veterans are treated equally to their cisgender counterparts. Namely, they should be provided with a full range of gender-affirming treatments, including surgery, there should be proactive initiatives to combat discrimination, and accommodations should be considered for transgender service members in the process of transitioning. Transgender servicemembers risk their lives, just like any other servicemember. They should not be at a disadvantage because of their gender or because they require medically-necessary treatment. As Navy Chief Petty Officer Melody Stachour stated, “The biggest myth is that we’re something other than an ordinary sailor who is just here to do a job . . . . Trans people in the military are here to do a job. They want to do it well.”[43]

[1] A Brief History of Gay Military Policy and Improving Acceptance, Integration and Health among LGBT Service Members, USC Soc. Work (Aug. 28, 2018), https://dworakpeck.usc.edu/news/brief-history-of-lgbt-military-policy-and-improving-acceptance-integration-and-health-among (hereinafter “A Brief History of Gay Military Policy”).

[2] Id.

[3] Jacob R. Eleazer et al., “We’ve Been Here All Along:” The Collective Resilience of Transgender and Gender Diverse U.S. Service Members, Psych. serv., Nov. 10, 2022, at 2.

[4] Id.

[5] M. Joycelyn Elders et al., Medical Aspects of Transgender Military Service, Armed Forces & Soc’y, March 2014, at 3.

[6] Id.

[7] Id.; Eleazer et al., supra note 3, at 2.

[8] Eleazer et al., supra note 3, at 2.

[9] Id.

[10]A Brief History of Gay Military Policy, supra note 1.

[11] Melissa Gomez, Timeline: Transgender Service Members and the Military, L.A. Times (May 28, 2019, 3:00 AM), https://www.latimes.com/politics/la-na-col1-transgender-military-timeline-20190528-story.html.

[12] Id.

[13] Id.

[14] Eleazer et al., supra note 3, at 2.

[15] U.S. Dep’t of Def., Off. of the Under Sec’y of Def. for Pers.and Readiness, DOD Instruction 1300.28: In-Service Transition For Transgender Service Members (Apr. 30, 2021).

[16] Id.

[17] Steve Beynon, Army to Provide Gender Transition Care, Surgeries for Transgender Soldiers, Military.com (Jun. 28, 2021), https://www.military.com/daily-news/2021/06/28/army-provide-gender-transition-care-surgeries-transgender-soldiers.html; Leo Shane III, VA to Offer Gender Surgery to Transgender Vets for the First Time, Mil. Times (Jun. 19, 2021), https://www.militarytimes.com/veterans/2021/06/19/va-to-offer-gender-surgery-to-transgender-vets-for-the-first-time/.

[18] Leo Shane III, Transgender Veterans Still Waiting On VA’s Promise of Surgery Options, Mil. Times (Jun. 17, 2022), https://www.militarytimes.com/veterans/2022/06/17/transgender-veterans-still-waiting-on-vas-promise-of-surgery-options/; Transgender Health Services, Health.mil, https://www.health.mil/Military-Health-Topics/Health-Readiness/Public-Health/Transgender (last visited Jan. 4, 2022).

[19] Transgender Health Services, supra note 18.

[20] Military Service by Transgender People: Data from the 2015 Transgender Survey, 2015 U.S. Transgender Surv., https://transequality.org/sites/default/files/docs/usts/USTS-VeteransDayReport.pdf (hereinafter “Military Service by Transgender People”).

[21] Transgender Military Service in the United States, UCLA Sch. of L. Williams Inst., https://williamsinstitute.law.ucla.edu/publications/trans-military-service-us/.

[22] Military Service by Transgender People, supra note 20.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Devin Dwyer, ‘I’m Still Here’: Transgender Troops Begin New Era of Open Military Service, ABC News (Feb. 23, 2021, 11:28 PM), https://abcnews.go.com/Politics/im-transgender-troops-begin-era-open-military-service/story?id=76046328.

[28] A Brief History of Gay Military Policy, supra note 1.

[29] Transgender Health Services, supra note 18.

[30] Christopher Ingraham, The Military Spends Five Times as Much on Viagra as it Would on Transgender Troops’ Medical Care, Wash. Post (July 26, 2017, 11:19 AM), https://www.washingtonpost.com/news/wonk/wp/2017/07/26/the-military-spends-five-times-as-much-on-viagra-as-it-would-on-transgender-troops-medical-care/.

[31] Id.

[32] Id.

[33] Id.

[34] Andrew Joseph, Cost of Medical Care for Transgender Service Members Would be Minimal, Studies Show, Sci. Am., https://www.scientificamerican.com/article/cost-of-medical-care-for-transgender-service-members-would-be-minimal-studies-show/ (Jul. 26, 2017).

[35] Id.

[36] Andréa Becker, It’s Time to Stop Describing Lifesaving Health Care as “Elective,” Vox (Sep. 20, 2021, 10:00 AM), https://www.vox.com/22678393/elective-surgery-nonessential-trans-gender-affirming-hysterectomy; Finn Grice, ‘Elective Surgery’: Linguistic Issues with Trans and Non-Binary Care, Nat’l Voices (Dec. 3, 2021), https://www.nationalvoices.org.uk/blogs/%E2%80%98elective-surgery%E2%80%99-linguistic-issues-trans-and-non-binary-care.

[37] Davis Winkie, Army Releases New Transgender Policy, But Can it Prevent Discrimination?, ArmyTimes (Jun. 25, 2021), https://www.armytimes.com/news/pentagon-congress/2021/06/25/army-releases-new-transgender-policy-but-can-it-prevent-discrimination/.

[38] Elvira Chiccarelli, Fit Transitions: When Can Transgender Airmen Fitness Test in Their Affirmed Gender?, Mil. Med. (Oct. 22, 2022), https://academic.oup.com/milmed/advance-article/doi/10.1093/milmed/usac320/6769999.

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43] Dwyer, supra note 27.

Written By Summer 2022 M-VETS Student Advisor Greg Pelletier.

Approximately 3.6 million people in the United States currently have a security clearance.[1] Many of these individuals with security clearances are active-duty service members in the military. Other clearance holders include civilians with national security related jobs or defense contractors. As these active-duty service members transition from the military into civilian jobs, many of them wonder if their security clearances will transition with them.

What Are Security Clearances and Why Are They Required?

Security clearances are the federal government’s method of safeguarding sensitive national security information.[2] The concept of security clearances was first initiated in 1979 by Department of Defense (DoD) regulations and the creation of the Personnel Security Program.[3] Since then, the DoD and federal government has amended the program through additional regulations and executive orders.[4] Pursuant to Executive Order 12968, “the national interest requires that certain information be maintained in confidence through a system of classification” because “the unauthorized disclosure of information classified in the national interest can cause irreparable damage to the national security and loss of human life.”[5] The current security clearance program stresses uniformity, efficiency, and cost-effectiveness.[6]

Not all federal government jobs or military positions require security clearances, but the greater an individual’s superiority or rank, the greater the need to access classified information. Accordingly, it is very common for active-duty military members to have security clearances when they separate from the military and transition into the civilian workforce.

Types of Security Clearance

There are three types, or levels, of security clearance.[7] Ranked in order from lowest to highest, the clearance levels are “Confidential,” “Secret,” and “Top Secret.”[8] Each clearance level allows the clearance holder in a specific position to access a different level of sensitive national security information. Various executive agencies including the Department of State, the DoD, and the Department of Homeland Security have the ability to issue security clearances.[9]

Why Do Security Clearances Matter in the Civilian Workforce?

The most common security clearance jobs for military veterans transitioning to the civilian workforce are in the defense contracting industry.[10] Major defense contracting companies, such as Northrup Grumman, focus on recruiting post-military employees.[11] Veterans make up twenty percent of Northrup Grumman’s workforce, and many of these positions require a security clearance.[12] In fact, nearly 85% of all personnel security investigations for security clearances are conducted on DoD employees and contractors.[13]

As the defense industry expands, these veteran-filled security clearance jobs will also expand. The DoD reported that its contracts and investments with defense contracting firms increased by $43 billion in 2020.[14] In Virginia alone, the DoD spent $64.3 billion in defense contracts.[15] The DoD’s massive investment in defense contracting has spiked the demand for security-clearance employees, and if the trend continues, many of these employees will be veterans.

Can I Keep my Security Clearance After Separating from the Military?

Security clearance reciprocity between jobs and employers is possible but not always practical. Security clearances are provided to individuals, but the clearances are also attached to specific positions based on specific duties and responsibilities.[16] Federal agencies will ordinarily transition a security clearance between agencies so long as the individual’s last security clearance investigation occurred within the past five years for a Top-Secret clearance and ten years for a Secret clearance.[17] Agencies also take into account other factors such as serious life changes and job differences.[18] Overall, this means that security clearance reciprocity is possible, primarily for veterans transitioning into civilian jobs posted by other federal agencies.

Transitioning a security clearance to a private civilian job is more complicated. Private jobs entail significantly different duties, responsibilities, and access to sensitive information. This means that private companies must often sponsor their new employees during further background investigations and security clearance screenings. The optimal strategy for transitioning a security clearance from the military to a private civilian job is to renew your clearance and keep it as up to date as possible prior to military separation. The Department of State notes that it takes an average of 120 days to obtain a security clearance.[19] A longer timeline also involves more costs as the applicant must wait for a decision before finalizing their employment. Having an up-to-date and renewed clearance at the time of military separation can expedite further background investigations if they are necessary.

Conclusion

Defense contracting and jobs requiring security-clearances are expanding, and veterans who already possess security clearances have an advantage over other applicants seeking these same jobs. The security clearance application and screening process can be long and costly. As a result, this process can pose a significant roadblock for recently separated veterans looking to quickly transition to the civilian workforce. If a veteran finds themselves in this situation, they should focus on renewing and keeping their security clearance up to date. Security clearance reciprocity is not always practical depending on the individual and the position they are seeking. The security clearance process may be challenging to navigate, but service members or veterans already in possession of a clearance have a unique advantage when transitioning into and competing for defense contracting or civilian jobs.

[1] Vergun, Department of Defense, “All DOD Personnel Now Receiving Continuous Security Vetting” (Oct. 5, 2021).

[2] U.S. Department of State, Bureau of Diplomatic Security, “Security Clearances.”

[3] U.S. Department of Defense, Regulation 5200.2-R (Dec. 1979).

[4] Clearance Jobs, “The Brief History of the Security Clearance Process” (2022).

[5] Executive Order 12968, F. Reg. 60, 151 (Aug. 7, 1995).

[6] Id.

[7] U.S. Department of State, Bureau of Diplomatic Security, “Security Clearances.”

[8] Id.

[9] Id.

[10] Kness, Clearance Jobs, “Veteran Employment in the Defense Contracting Sector” (Nov. 11, 2021).

[11] Id.

[12] Id.

[13] Clearance Jobs, “The Brief History of the Security Clearance Process” (2022).

[14] U.S. Department of Defense, Defense Spending Report by State 2020 (Oct. 22, 2021).

[15] Id.

[16] U.S. Department of State, Bureau of Diplomatic Security, “Security Clearance FAQs.”

[17] Id.

[18] Id.

[19] Id.

Written by Summer 2022 M-VETS Student Advisor Olivia Sznaza.

The Camp Lejeune Justice Act of 2022 (“Camp Lejeune Justice Act”) was introduced to Congress in January, 2022 as a component of a broader piece of legislation called the Honoring our PACT Act of 2022 (“PACT Act”).[1] In its entirety, the PACT Act is designed to address a series of legal matters “pertaining to toxic exposures related to military service.”[2] Within that, the Camp Lejeune Justice Act is specifically designed to address toxic exposure to contaminated water at Camp Lejeune in North Carolina.[3] The goal of the Camp Lejeune Justice Act is to provide impacted service members and their families a means of restitution for exposure to the Camp’s harmful drinking water.[4]

Lawmakers have moved rather quickly to usher this legislative package through the voting and approval process. On August 10, 2022, the President signed the PACT Act, inclusive of the Camp Lejeune Justice Act into law.[5] Given the official debut of the Act, this article provides a brief historical backdrop for the Camp Lejeune Justice Act, followed by a guide to staking a claim under its provisions.

HISTORICAL CONTEXT FOR THE CAMP LEJEUNE JUSTICE ACT

In the early 1980s, water testing was conducted on-site at Camp Lejeune’s water treatment plants and distribution systems.[6] This testing revealed water at the Camp, particularly in the Hadnot Point, Tarawa Terrace, and Holcomb Boulevard systems, contained a series of volatile organic compounds (VOCs).[7] VOCs are considered dangerous contaminants and when found in drinking water, the substances can cause cancer and other serious illnesses if ingested or absorbed into the body.[8] Additional testing tracked the presence of VOCs back to subpar waste removal and storage practices as well as chemical dumping by nearby, non-military businesses.[9]

While Camp Lejeune does not currently experience issues with toxic water, an estimated one million people were exposed to these VOCs for several years before and after the water testing was conducted at the base.[10] As more information about the contamination has come to light regarding illnesses and deaths, it has become evident that there is a deeper and growing need to provide a means of recovery from this situation.

MAKING A CLAIM

Question 1: Who is allowed to bring a claim under the Camp Lejeune Justice Act?

Answer: Veterans, their family members, civilian contractors, and estates of the foregoing individuals who:

• Stayed at Camp Lejeune for at least a 30-day period between August 1, 1953, and December 31, 1987; AND
• Can show a relationship between exposure to the toxic water at Camp Lejeune and the harm suffered.[11]

Question 2: How can I establish a relationship between my exposure to the toxic water and the harm I have suffered?

Answer: There is a two-step process to show a relationship between exposure to toxic water at Camp Lejeune and the harm you have suffered.

Step 1: Have one or more verified conditions. While list may continue to grow, the current list of verified conditions is as follows:[12]

Bladder Cancer

Breast Cancer

Esophageal Cancer

Female Infertility

Hepatic Steatosis

Kidney Cancer

Leukemia

Lung Cancer

Miscarriage

Multiple Myeloma

Myelodysplastic Syndromes

Neurobehavioral Effects

Non-Hodgkin’s Lymphoma

Renal Toxicity

Scleroderma

Step 2: Show evidence (i.e., paperwork, records, etc.) that either is:

• Sufficient to show that a causal relationship exists; or
• Sufficient to show that a causal relationship is at least as likely as not.[13]

Question 3: If I meet all of the requirements described in Questions 1 and 2, can I start the process for filing a claim?

Answer: Yes. Since the Camp Lejeune Justice Act was enacted on August 10, 2022 claimants who meet the required criteria may now proceed with making a claim. While a prospective claimant need not file a claim immediately, the Act does has a finite window within which one can raise a claim.[14] The Act stipulates that a claim must be filed within two years of the date of enactment, or within 180 days of the claim being denied under 28 U.S.C. § 2675.[15]

Question 4: What is 28 U.S.C. § 2675 and how to does it factor into my ability to make a claim?

Answer: 28 U.S.C. § 2675 is a law that requires any individual seeking to bring a claim against the U.S. Government to first present a claim to the relevant Federal Agency.[16] From the date of submission to the Federal Agency, the Agency will have six months to make a final determination of your claim. If the individual receives a final denial for his or her claim from the Agency, he or she has 180 days from the denial date to then file a claim in court. [17] As of right now, it appears that an individual will have the full 180 days to file a claim in court even if the two year time period from the date of enactment of the Act has elapsed.[18]

Question 5: Where can I file my claim in court if I receive a final denial from the relevant Federal Agency?

Answer: Court claims can only be filed in the United States District Court (“USDC”) for the Eastern District of North Carolina.[19]

Question 6: What if I previously submitted a claim to the relevant Federal Agency regarding toxic water at Camp Lejeune? Can I use that claim to skip the Agency process and file directly in the USDC for the Eastern District of North Carolina?

Answer: No. Even if you have previously filed a claim pertaining to toxic water at Camp Lejeune, that claim must be refiled to be considered under the Camp Lejeune Justice Act of 2022, and further in the USDC for the Eastern District of North Carolina.[20]

Question 7: Overall, what are the available options for relief?

Answer: Claimants can recover monetary damages for relief.[21] While it also seems to be the case that other applicable damages may be recoverable, punitive damages will not be awarded in any action.[22]

Question 8: Are there limitations to the monetary damages that may be provided to me?

Answer: If an individual is the recipient of any award, payment, or benefit under a below-listed program, monetary damages awarded under the Camp Lejeune Justice Act will be offset.

• Any program administered by the Secretary of Veterans Affairs;
• The Medicare program under title XVIII of the Social Security Act; OR
• The Medicaid program under title XIX of the Social Security Act; AND
• In connection with health care or a disability relating to exposure to the water at Camp Lejeune.[23]

[1] See H.R. 3967 § 804.

[2] See H.R. 3967 § 102-103.

[3] H.R. 6482.

[4] Id.

[5] “A Guide to the Camp Lejeune Justice Act of 2022.” FH+H. August 18, 2022.

[6] “The Timeline of the Camp Lejeune Contaminated Water Lawsuits.” JDSupra. July 11, 2022.

[7] “Camp Lejeune, North Carolina Background.” Agency for Toxic Substances and Disease Registry. January 16, 2014.

[8] “Camp Lejeune Water Contamination – The Science.” Parker Waichman LLP. March 23, 2022.

[9] “New Law Looks to Help Compensate Water Contamination Victims.” ClassAction.org. August 10, 2022.

[10] “Camp Lejeune Water Contamination – The Science.” Parker Waichman LLP. March 23, 2022.

[11] H.R. 6482 § 2(b).

[12] “Our North Carolina Lawyers are Prepared to File a Camp Lejeune Water Contamination Lawsuit on Behalf of the Affected Veterans and Families Now that the Camp Lejeune Justice Act of 2022 Has Become Law.” Martin & Jones, PLLC.

[13] H.R. 6482 § 2(b)(2)(A)-(B).

[14] See id. at § 2(i).

[15] See id.

[16] See 28 U.S.C. § 2675(a).

[17] See “Our North Carolina Lawyers are Prepared to File a Camp Lejeune Water Contamination Lawsuit on Behalf of the Affected Veterans and Families Now that the Camp Lejeune Justice Act of 2022 Has Become Law.” Martin & Jones, PLLC.

[18] See id.

[19] H.R. 6482 § 2(c).

[20] See “A Guide to the Camp Lejeune Justice Act of 2022.” FH+H. August 18, 2022; see also “Filing Claims Under the Camp Lejeune Justice Act of 2022,” U.S. Navy Judge Advocate General’s Corps.

[21] See “Honoring Our PACT Act Signed into Law: Camp Lejeune Water Contamination Lawsuits Move Forward.” The National Law Review. August 10, 2022.

[22] See id.; H.R. 6482 § 2(f).

[23] H.R. 6482 § 2(d).