Category: Blog

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).

Written by Spring 2022 M-VETS Student Advisor Blake Pendleton.

In early May 2022, a draft opinion of Dobbs v. Jackson Women’s Health Organization et al. was leaked to the public.[1] According to the draft, the Supreme Court appears set to overturn Roe v. Wade later this summer, effectively eliminating federal constitutional protections of abortion rights.[2] Thus, individual states will be able to set varying standards and restrictions surrounding abortions, or ban them altogether. Of course, the vote is not definitive and the leaked document was only a draft of the final opinion, but it has already sparked efforts around the country to restrict or ban abortions. With the real possibility that Roe is overturned in the near future, many are preparing for the end of nationwide abortion rights. In this respect, there is sincere apprehension about the future of women’s access to reproductive health measures and abortions, including what effect this may have on the substantial number of women in the U.S. military.

The U.S. military consists of 1.3 million active-duty personnel, spanning all fifty states in approximately 450-500 bases.[3] Within this, women represent sixteen percent of the enlisted forces and nineteen percent of all officers.[4] Studies have also shown that women in the military are more likely than other American women to have an unplanned pregnancy.[5] Military women have a fifty percent higher rate of unplanned pregnancy than the general population.[6] And as of 2011, they had 72 unintended pregnancies per 1,000 women under the age of 44, as opposed to 45 per 1,000 in the general female population.[7] Further, nearly one in four military women report experiencing sexual assault in the military.[8] Nonetheless, significant numbers of female service members could soon be stationed in parts of the country with extreme limitations or outright bans on abortions. Essentially, “[i]f each state has the freedom to ban or allow abortions, the reproductive rights of women in the military would depend on where the Defense Department stations them, a decision in which they have little say.”[9]

In turn, woman service members in these areas may face tremendous hardship, and maybe even punishment, should they seek such procedures. For instance, thirteen states have “trigger laws” in effect which would ban abortions almost immediately upon Roe being overturned. Those states include Arkansas, Texas, Missouri, Kentucky, Louisiana, and Oklahoma, all of which have multiple military bases and house hundreds of thousands of troops. Similarly, twenty-six states have laws in place that lead many to presume that they are likely to ban abortions following overturning Roe.[10] Moreover, approximately seventeen states have limitations on abortions already in effect that can be enforced with or without Roe.[11] In all, according to one study, the restrictions that would follow Roe being struck down would mean almost thirty percent of women would be more than two hundred miles away from an abortion provider.[12]

Irrespective of Roe, women in the military already face more restrictions than civilian women when it comes to abortion. According to the Hyde Amendment of 1976, “No funds authorized or appropriated by Federal law…shall be expended for any abortion.”[13] Similarly, federal funds cannot be used for health benefits coverage that includes coverage of abortion.[14] In other words, the costs of the procedures in private facilities are not covered by service members’ Tricare health insurance, so they must pay out of pocket.[15] Additionally, 10 U.S.C. § 1093(b), military medical treatment facilities cannot be used to perform an abortion.[16] The only exception to these limitations is when the pregnancy is the result of a rape or incest, or when the life of the mother is endangered from the pregnancy.[17] For both exceptions, however, physicians must certify that they believe the pregnancy was the result of rape or incest, or an abortion was performed to protect the mother’s life – both often high bars to overcome.[18]

Thus, doctors on military bases are banned from performing abortions on female service members.[19] Women in the military are therefore forced to seek treatment at private facilities, which is also unlikely to be covered by their insurance. This also means that female spouses and dependents of service members must seek procedures at private facilities.[20] And adding another complication, spouses and dependents also on the same Tricare health insurance plan cannot have these procedures covered by insurance in most instances.[21] In fact, Tricare insurance also decides for service members and dependents who their military or civilian providers will be.[22]

With an overturn of Roe, this issue becomes magnified. Military women are unable to choose where they are stationed, and military facilities cannot provide elective abortions outside of extreme circumstances. As a result, the only options available are to go to a private facility off base or travel out of state. And either way, the procedure must be paid for out of pocket because it will not be covered by their military insurance. Even further, if a woman is stationed in a state with severe restrictions or complete bans on abortions, travelling out of state for a procedure could prove incredibly burdensome. To get an abortion out of state, military women would likely need to request leave from their commanders. And if deployed overseas in places where abortions are banned, requesting leave will be even more difficult or perhaps impossible. In some instances, this may also require disclosing the reason for requesting leave before it is approved. If the reason for the request is revealed, it could lead to negative comments, harassment, hostile work environments, and other negative behavior from dissenting colleagues.[23] Similarly, if a woman is known to be pregnant, but seeks an abortion privately, it may lead to questions and murmurs from those who notice that she is no longer pregnant. In all, women in such a position will face significant invasions of privacy or otherwise feel the need to “justify” their decisions to those around them to avoid scrutiny. Furthermore, some research suggests that many military women are unaware of the current military abortion policies, which could cause delays in treatment as they attempt to secure care from facilities that would not provide it.[24]

Even concealing the procedure carries negative medical implications. For instance, a woman may have to follow strict post-op instructions that do not align with military policies or the nature of her work.[25] As a result, she may have difficulty healing or experience adverse side-effects that would be avoided under proper care. Even more concerning, with restrictions or bans on abortions expected across the country, women stationed in such states may be forced to seek a procedure that is merely available to them at the expense of seeking the safest care.[26] In either instance, the concerns for the safety of military women in this regard are substantial.

A hypothetical example provides an illustrative summary of the positions military women may be in without the protections of Roe. Consider a woman in the military who becomes unexpectedly pregnant, a situation that statistics reveal is common. What are her options and their implications? For one, she can decide to go through with the pregnancy. Nothing may come of this, and she may not experience any negative outcomes whatsoever. However, there is a chance that it still negatively affects the trajectory of her career, as some jobs in the military are not available to pregnant women.[27] Second, she can also ask for a discharge from the military because of her pregnancy.[28] In fact, a 2020 report from the Government Accountability Office (GAO) found that despite increases in the number of women in the military over the past fifteen years, military women are twenty-eight percent more likely to separate from service than military men.[29] Among the common reasons influencing women’s decisions to separate were family planning, sexual assault, and dependent care.[30]

On the other hand, let’s assume she believes an abortion is the best, or maybe the only, option for a host of reasons – she does not want to have a child or go through the process of pregnancy and childbirth, she cannot financially afford to have a child, there are medical reasons why carrying a pregnancy to term may be medically detrimental (but not life threatening) to her, or the pregnancy is the result of a rape. Under the Hyde Amendment and 10 U.S.C. § 1093, federal funds could not be used for an abortion, nor can it be performed at a military medical facility unless she has sufficient evidence for a doctor to certify that the pregnancy was the result of a rape, or that the pregnancy will be life threatening. In all other circumstances, she is forced to go to a private facility and pay for the procedure on her own. Furthermore, if she is stationed in a state with trigger laws or one that is expected to ban abortion following an overturn of Roe (such as Texas, Oklahoma, Georgia, Utah, or Wyoming), she must travel out of state for a procedure. For some regions of the U.S., this may demand travelling hundreds of miles before reaching a state that allows abortion, which would certainly require requesting a leave of absence.[31] And underlying it all, with creations of criminal punishment in some states for women who obtain abortions, it also begs the question whether a military woman would be subject to criminal punishment through the civilian justice system or even under the Uniform Code of Military Justice.

So, what can be done? In lieu of the expected overturn of Roe, some branches of the military have begun considering options to provide protections for military women. For instance, the Army has reported that new policies have been drafted to provide protections should it become necessary.[32] Likewise, the Air Force recently passed laws following state restrictions on LGBTQ rights to provide medical aid, legal help, or relocation of families that may be expanded for service members living in states prohibiting abortions.[33] Some have also called on the federal government to amend or change internal military policies limiting the restrictions on abortions for service members.[34] In any respect, it may be time to take a second look at the considerable struggles pregnant military women currently face, and their magnification without the protections of Roe.

[1] Josh Gerstein and Alexander Ward, Supreme Court has voted to overturn abortion rights, draft opinion shows, POLITICO (May 3, 2022), https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473.

[2] Id.

[3] Demographics of the U.S. Military, Council on Foreign Relations (July 13, 2020), https://www.cfr.org/backgrounder/demographics-us-military.

[4] Id.

[5] Id.

[6] Id.

[7] Camila Domonoske, ‘You’re on your own’: Servicewomen Describe Impact of Military’s Abortion Policy, NPR (Nov. 15, 2017), https://www.npr.org/sections/thetwo-way/2017/11/15/564336406/-you-re-on-your-own-study-describes-impact-of-militarys-abortion-policy.

[8] Melinda Wenner Moyer, ‘A Poison in the System’: The Epidemic of Military Sexual Assault, New York Times (Aug. 3, 2021), https://www.nytimes.com/2021/08/03/magazine/military-sexual-assault.html#:~:text=Of%20the%20more%20than%206%2C200,many%20convictions%20as%20in%202019.

[9] Jacqueline Feldscher, Reversing Roe Would Harm Military Readiness, Abortion-Rights Advocates Warn, Defense One (May 3, 2022), https://www.defenseone.com/policy/2022/05/reversing-roe-would-harm-military-readiness-abortion-rights-advocates-warn/366458/.

[10] Elizabeth Wolfe, 13 States Have Passed So-Called ‘Trigger Laws,’ Bans Designed To Go Into Effect If Roe V. Wade Is Overturned, CNN (May 3, 2022), https://www.cnn.com/2022/05/03/us/state-abortion-trigger-laws-roe-v-wade-overturned/index.html. See also Feldscher, supra note 9.

[11] Id.

[12] Oriana Gonzalez, Sara Wise, and Thomas Oide, Abortion could require 200-mile trips if Roe is overturned, Axios (Dec. 1, 2021), https://www.axios.com/2021/12/01/distance-abortion-roe-supreme-court-texas?utm_source=twitter&utm_medium=social&utm_campaign=editorial&utm_content=politics-abortion.

[13] Hyde Amendment Codification Act, S. 1488, 112th Cong. (2011).

[14] Hyde Amendment Codification Act, S. 1488, 112th Cong. (2011).

[15] Roxana Tiron, US Military Risks a Decline in Female Troops Under Roe Rollback, Military.com (May 7, 2022), https://www.military.com/daily-news/2022/05/07/us-military-risks-decline-female-troops-under-roe-rollback.html.

[16] 10 U.S.C. § 1093(b).

[17] Hyde Amendment Codification Act, S. 1488, 112th Cong. (2011).

[18]  Haley Britzky and Jeff Schogol, What Overturning Roe v. Wade could mean for the U.S. military, Task & Purpose (May 3, 2022), https://taskandpurpose.com/analysis/military-abortion-rights-supreme-court-roe-v-wade/.

[19] Tiron, supra note 15.

[20] Id.

[21] Id.

[22] Britzky and Schogol, supra note 18.

[23] Tiron, supra note 15.

[24] Domonoske, supra note 7.

[25] See id.

[26] Id.

[27] Id.

[28] Tiron, supra note 15.

[29] Id.

[30] Id.

[31] See Wolfe, supra note 10 (providing a map of current and potential future abortion laws across U.S. states).

[32] Rebecca Kheel, The Army Is Preparing for the End of Nationwide Abortion Rights as Senators Press to Keep Access, Military.com (May 12, 2022), https://www.military.com/daily-news/2022/05/12/army-preparing-end-of-nationwide-abortion-rights-senators-press-keep-access.html.

[33] See Feldscher, supra note 9.

[34] See Tiron, supra note 15.

 

Written By Spring 2022 M-VETS Student Advisor Stephanie Whiteley.

The Army National Guard is unique from the other military branches. Unlike the active-duty Army or the Army Reserves, Army National Guard Servicemembers (“SMs”) play a dual role. They support both state and federal missions. Whether a SM responds to a state or federal mission determines which part of the United States Code applies.

State Missions

Primarily, SMs support their state though training and response to specific missions. These activities fall under Title 32 U.S.C. (“Title 32”)[1] Each year, SMs maintain their training and readiness requirements through inactive duty for training (“IDT”) and annual training.[2] As needed, SMs are placed on Full-Time National Guard Duty (“FTNGD”) to support specific missions.[3] Under 32 U.S.C. § 502(f), SMs have provided support to border security missions and “COVID-19 response efforts,” as well as other missions.[4]

SMs also conduct state active duty. SMs on state active duty have been used to protect critical infrastructure, to provide disaster response, and to respond to civil disorders.[5] Unlike Title 32 status, where SMs are “under state control but [have] pay and benefits provided by the federal government,” SMs on state active duty are treated like state employees.[6] In state active duty missions, pay and benefits are provided according to state law.[7]

In both Title 32 status and state active duty missions, SMs return home to their civilian jobs and part-time National Guard duties as soon as domestic emergency or mission has ended.

Issues Encountered in State Missions

SMs deployed on state missions encounter several issues. First, SMs on state active duty are treated as state employees. Meaning, they “receive pay, benefits, and retirement credit according to [the] state’s employment laws.”[8] This can be especially problematic if SMs are sent on multiple state active duty missions because SMs must have a minimum of twenty “good years” of federal service credit to retire from the National Guard with federal service benefits.[9] To obtain twenty “good years” SMs must receive a minimum of fifty service points a year.[10] State active duty does not provide service points that count towards a “good year” for federal service retirement.[11] Also, SMs do not receive Basic Allowance for Housing, Tricare health insurance, or accrual for GI Bill benefits.[12] Unlike other missions, where SMs have appropriate support for their families while on orders, the lack of these benefits makes it more difficult for SMs families to handle affairs in their absence. Especially for SMs that receive a pay-cut when responding to state activity duty missions.[13]

Second, SMs on state active duty can experience uncertainty regarding deployment. In other missions, the length of the orders is clear – often nine months to a year, depending on the mission. Also, SMs often receive notice, which gives SMs time to settle their affairs.[14] In state active duty missions, the length of the orders can change based on the state’s need. For the most part, state active duty is only for a short period of time.[15] However, there are instances where the state’s need has resulted in long-term deployments.

Operation Lone Star, Texas National Guard’s response to the border crisis, was initially intended to be a short-term deployment of three to six months.[16] However, SMs deployed under Operation Lone Star “are [now] mobilized on year-long orders.”[17] Additionally, SMs only received days’ notice of the deployment, rather than the months or years’ notice SMs received on other missions.[18] Lack of proper planning on the part of the Texas National Guard also caused pay issues for soldiers, as the appropriate administrative steps often were not completed prior to the Operation Lone Star deployments.[19]

Federal Missions

Additionally, SMs deploy for the federal government. These deployments fall under Title 10 U.S.C. (“Title 10”). Unlike Title 32 deployments, which are limited to stateside deployments, SMs can deploy overseas or to the Continental United States (“CONUS” or “stateside). When SMs are deployed under Title 10 “control passes from the governor of the affected units and personnel to the President of the United States.”[20] SMs on Title 10 orders over thirty days then receive benefits similar to active duty SMs.[21]

SMs have the ability to volunteer for Title 10 orders based on location, tour length, Military Occupational Specialty, and mission.[22] SMs can volunteer for Active Duty for Operational Support-Reserve Component (“ADOS-RC”) tours. ADOS-RC tours are often “used in situations where the Active Army has a mission requirement for which no Active Army soldiers with the requisite skills and experience are reasonably available.”[23] SMs can also volunteer for Contingency Operation for Active Duty Operational Support (“CO-ADOS”) tours. “CO-ADOS is used when the active duty (support) mission requirement is the result of a wartime contingency situation.”[24] Common CO-ADOS tours include support to Operation Inherent Resolve[25] and Operation Enduring Freedom.[26]

These voluntary mobilizations provide SMs the ability to strengthen their skillsets at a time and place of their choosing. However, SMs generally experience a variety of issues when “deployed” stateside under Title 10 orders.

Issues Encountered in Federal Stateside Missions

First, SMs have been asked to concurrently fulfill both Title 32 and Title 10 duties by their home unit. This problem occurs because SMs are still attached to their home unit in their state, while assigned to the Title 10 unit. Because the SM is still attached to the home unit, the home unit requires the SM to meet certain readiness and training requirements.

For a SM unfamiliar with the United States Code (effectively, most SMs) home units that wish to meet readiness and training requirements may attempt to task SMs to fulfill Title 32 (state) duties while assigned to a unit under Title 10 orders. Per 32 U.S.C. § 325, a SM cannot fulfill Title 32 duties while on Title 10 orders unless: (1) the President of the United States authorizes service in both Title 32 and Title 10 status; and (2) the Governor of the State consents to service in both duty statues.[27]

Although this is in the United States Code, this is not a well-known rule amongst the Army National Guard (“ARNG”). As a result, SMs unaware of this rule can be pressured into completing state duties – typically IDT, because their home unit has requested it. When SMs adhere to this request, they are not only violating the United States Code, but they are also violating Army Regulations, and, likely, the requirements of their Title 10 units.[28]

Second, SMs often experience delays in processing when they attempt to renew their Title 10 orders. For SMs to volunteer for stateside Title 10 mobilizations, The Adjutant General (“TAG”) of their state must release the SM from state duties.[29] This process is cumbersome and is often delayed because SMs must wait for a series of approvals before the SM can be released from state duties.[30]

To ensure the state meets the Army readiness requirements, the TAG will typically release a SM for 365 days. As a result, SMs experience this cumbersome process for a significant portion of every year they wish to remain on orders. If the state is encumbered by a state mission, this process is delayed even further, as the SM requesting a stateside Title 10 mission is moved to the bottom of the queue. SMs that fail to plan for delays in processing, can end up with a break in service (i.e., can end up without pay) while waiting for orders to process.

Conclusion

Overall, the Army National Guard is a unique part of the military. However, it comes with unique problems that SMs (and sometimes the units) are often unaware of until the problem occurs to them. Although SMs are, for the most part, unaware – efforts by the states to educate SMs and to streamline processes may prevent some issues associated with state active duty or with federal missions from occurring in the first place.

[1] 32 U.S.C. §§ 301-506.

[2] IDT is a monthly requirement. SMs report to their unit one weekend a month to maintain readiness requirements and conduct any necessary training. Annual training is two weeks long and often occurs in the summer. Guard FAQS, Army Nat’l Guard (last accessed May 15, 2022), https://www.nationalguard.com/guard-faqs.

[3] Congressional Research Service, Reserve Component Personnel Issues: Questions and Answers, 20 (Nov. 2, 2021), https://sgp.fas.org/crs/natsec/RL30802.pdf.

[4] Id.

[5] “[S]hortly after September 11, 2001, some governors called up…the National Guard to protect critical infrastructure in their states, such as nuclear power plants, water treatment facilities, and bridges, from potential terrorist attacks.” Id.

[6] Id. at 19-20.

[7] Id. at 19.

[8] Shane Ostrom, Your Benefits: Title 10 vs. Title 32 vs. the State, MOAA (Mar. 23, 2020), https://www.moaa.org/ content/publications-and-media/moaa-blog/your-benefits-title-10-vs.title-32-vs.-the-state/.

[9] Id.

[10]Id.

[11] Id.

[12] Steve Beynon, State Orders are a Con-Federalizing the National Guard Should be the go-to for Most Missions Moving Forward, Mil. Times (May 22, 2020), https://www.militarytimes.com/opinion/commentary/2020/05/22/ state-orders-are-a-con-federalizing-the-national-guard-should-be-the-go-to-for-most-missions-moving-forward/

[13] Davis Winkie & James Barragan, Deplorable Conditions, Unclear Mission: Texas National Guard Troops Call Abbott’s Rushed Border Operation a Disaster, The Tex. Trib. (Feb. 1, 2022), https://www.texastribune.org/ 2022/02/01/texas-national-guard-border-operation-lone-star-abbott/

[14] Id.

[15] Guard FAQS, supra note 2.

[16] “Operation Lone Star ballooned from a lean 1,000-volunteer [mobilization] to a mandatory mobilization of up to 10,000 members of the Texas Military Department.” Id.

[17] Davis Winkie, Guard Troops can Unionize on State Active Duty, DOJ Says, Army Times (Jan. 25, 2022), https:// www.armytimes.com/news/your-army/2022/01/25/guard-troops-can-unionize-on-state-active-duty-doj-says/

[18] Davis Winkie & James Barragan, supra note 13.

[19] Id.

[20] Congressional Research Service, supra note 3, at 19.

[21] Id.

[22] Guard Tours, Nat’l Guard (last accessed May 15, 2022), https://www.nationalguard.mil/About-the-Guard/Army-National-Guard/Resources/Soldier-Resources/Guard-Tours/.

[23] Id.

[24] Id.

[25] Operation Inherent Resolve address the threat posed by Islamic State of Iraq and al Sham (“ISIS”) in Iraq and Syria. As the threat posed by ISIS has declined, Operation Inherent Resolve has focused on long-term regional stability. About CJTF-OIR, Operation Inherent Resolve (last accessed May 15, 2022), https://www.inherentresolve.mil/About-CJTF-OIR/.

[26] Operation Enduring Freedom primarily refers to the efforts in Afghanistan to combat Taliban forces. DoD News Defense Media Activity, After 13 Years, Operation Enduring Freedom Concludes in Afghanistan, Nat’l Guard (Dec. 29, 2014), https://www.nationalguard.mil/News/Article-View/Article/576922/after-13-years-operation-enduring-freedom-concludes-in-afghanistan/

[27] 32 U.S.C. § 325.

[28] Most commands require SMs stay within three hours (or 120 miles) of their unit while on Title 10 status in case an emergency requires SMs to report to duty on short-notice. SMs that attempt to fulfill Title 32 duties while on Title 10 status often have to travel outside of the three hour (or 120 mile) limit. Leaves and Passes, AR 600-8-10 (2020) (stating commanders may establish a distance or commuting time for SMs based on safety and established recall requirements).

[29] Active Duty for Missions, Projects, and Training for Reserve Component Soldiers, AR 135-200 (2020), https://armypubs.army.mil/epubs/DR_pubs/DR_a/ARN30084-AR_135-200-000-WEB-1.pdf.

[30] Id.

Written By Spring 2022 M-VETS Student Advisor Stuart Cerutti.

For many United States Servicemembers, their commitment to this this nation does not stop at the end of their military career. Many service members continue their commitment to the United States by acting in different role within the United States Federal Government.[1] The transition from the military to the federal sector can be difficult in terms of financial planning for retirement. Thankfully, there are programs in place to help former servicemembers connect their eligible military time to their federal employment time for retirement purposes. This article provides information about the military buyback program (“MBP”), provides recommendations on submitting a successful buyback application to the Defense Finance and Accounting Service for the U.S. Department of Defense (“DFAS”), and highlights common misunderstandings among former servicemembers applying for this benefit.

What is “buying back” military time through DFAS?

The process of buying back military time starts with the concept of a military service deposit (“MSD”).[2] A MSD is a “payment made to the civilian retirement fund to allow creditable military service to be used toward retirement eligibility and in annuity computations.”[3] Essentially, this means the MBP exists to allow former active duty military, reservists, and guardsmen, under certain circumstances, to use their military time to increase their government service time.[4] This in theory can increase a former servicemembers retirement pay.[5] However, in order to receive this benefit, the applicant must pay the deposit to DFAS prior to the date of retirement.[6] To be completely clear, this means that payment cannot be made to the Office of Personnel Management (“OPM”) or to DFAS after the date of retirement.

Understanding the buyback process.  

As a preface, the process of buying back military can be complex depending on your history in the military. This means that an applicant should plan accordingly if they wish to buy back military time in order to avoid missing the opportunity. While the time to process applications can vary, the amount of time needed to gather supporting documents can take even more time.

Therefore, step zero in the process is for an applicant to determine if buying back their military time is worth it financially. There are a couple of benefits that come with buying back military time, but it comes at a cost. First, let’s start with the benefits. In general, buying back military time can let an applicant do two things: first, it can allow the applicant to retire earlier than expected and second it can increase an applicant’s federal pension based on the number of years of service.[7] This sounds great on paper, but every applicant’s financial situation is different. Buying back time will cost an applicant based on a varying percentage of an applicant’s military base pay plus interest calculated over time.[8]

In order to apply an applicant must first display proof of an Honorable Discharge from the military.[9] This is just the preliminary step as OPM cannot calculate your estimated earnings during the time of service without proof of military service.[10] Therefore, an applicant should plan ahead and obtain a copy of a DD form 214 that displays their Honorable Discharge.[11] If you do not have a copy of your DD form 214, it can be requested through the National Personnel Records Center using a Standard Form 180 (“SF-180”).[12] According to OPM, there are other ways to verify your service but all documents used to verify service must include five pieces of information: your rank, type of service under Title 10, your character of discharge, your amount of lost time (non-active duty time), and the beginning/end dates of your service.[13]

Once you have obtained proof of service, make sure to gather documents relating to your pay and any promotions that you received. These documents will be used to complete an Estimated Earnings During Military Service Request Form, (“RI 20-97”).[14] This form requires proof of service, as mentioned above, to be attached as supporting documentation.[15] The information in the form is used by DFAS and OPM to assist in calculating an estimate of your earnings or base pay.[16] OPM has made it clear that their calculation is based on information submitted to them.[17] This means that OPM will only provide an estimate on the earnings during eligible service periods that are visible to them.[18]

If an applicant wants to receive an actual dollar amount of base pay earnings during an eligible time period, then the applicant must provide all leave and earning statements for each month and year requested.[19] Please note that an applicant must submit a separate RI 20-97 form for each branch of service if the applicant has served under multiple branches.[20] Once this information is received, an applicant’s estimated military earnings computation will be sent from the DFAS through the mail back to the applicant.[21]

The next step in the application process requires cooperation with human resource officers to complete an application based on the employment and the retirement system the applicant is paying into.[22] Again, be proactive and plan ahead to ensure your human resource officer can assist you in completing the Application to Make Service Credit Payment (“SF 3108”) if you are paying into the Federal Employees Retirement System (“FERS”).[23] If you are paying into the Civil Service Retirement System (“CSRS”) as an employee, fill out the Application to Make Deposit or Redeposit (“SF 2803”).[24]

After consultation with your human resources officer, be sure to send your estimated earnings statement (mailed back to you from DFAS), DD 214 (proof of service), and SF 2803 or SF 3108 to your human resources office.[25] Based on these forms and supporting documents, your human resources office will contact your payroll office and give their estimate of the deposit amount due.[26] This also certifies that your application information is correct.[27]

Next the payroll office will finalize the amount owed, send an invoice to you by mail detailing the amount owed, and send you instructions to make the payment.[28] This payment can be made at pay.gov, and yes, payments made through an amazon account are considered an accepted payment method.[29]  If this sounds too complicated, don’t worry, many other traditional payment methods are accepted including PayPal, debit, credit, or check.[30]

Common areas of confusion and important limitations.

To begin, all applicants must understand that reservist or guardsmen time does not count toward the MBP unless the applicant was called to active duty.[31] This means drill weekends for individuals in the reserves do not count towards the program.[32] This is where proof of service is essential. Therefore, an applicant should provide copies of orders calling them to active duty or a DD form 214 that reflects Honorable Service and active-duty time to demonstrate eligibility.

Sometimes estimates of base pay earnings can differ and an applicant might have differing calculations for the same time period. According to OPM if “both estimates are signed by an authorized individual and processed according to local guidance at the time, you may choose the earnings that are most beneficial to the member.”[33] OPM also tells applicants if they are unsure about which estimate to use to take the most recent estimate.[34] This will not always be the most beneficial you, so be sure to talk with your human resource office to understand the benefits or each estimate.

As previously mentioned, many individuals need to decide whether or not the purchase of their military time this is smart financial decision. Fortunately, DFAS has a military service earnings/buyback estimator tool.[35] This tool is incredibly useful as an official estimate of earnings can take upwards of 12 weeks.[36]

As a general tip, during any period of active duty or military service be sure to document payment and service dates especially if you are a reservist who receives orders for active duty. If you are planning on buying back your military time, having access to dates of service readily available is a great head start in order to accurately calculate the periods of service required by SF 2803 and SF 3108 forms.[37]

Next, as soon as you make the decision to buy back your military time, do it as quickly as possible. This is because interest rates continually add up the longer you wait to buy back your military time.[38] Furthermore, there is a grace period of two years from the day an individual starts as federal job to buy back military time without any interest.[39] Additionally, interest isn’t calculated until after the grace period is over, so practically speaking most individuals will have a three-year grace period of no interest to buy back their time.[40]

Finally, some applicants buying back their military time might already be receiving compensation in the form of a military retirement. Be aware that current policy does not allow a person to receive their military retirement and buy back their military time.[41] What this means is an applicant must pick between adding their military time to their federal employment time for the purposes of retirement or continue to receive military retirement payments.

Conclusion

In conclusion, the choice to buy back military time will vary based on an individual’s financial situation. The administrative process to buyback time will not happen overnight so plan ahead. Use the tools provided to you by DFAS to make the decision as early as possible which will help you avoid missing out on the opportunity to receive this benefit and can potentially lower your cost based on interest rates. Further, take advantage of grace periods without interest to buy back time. Next, gather supporting documentation for your military service as soon as possible to streamline your application. If there is an issue with the characterization of your discharge, make sure you attempt to correct this as soon as possible to avoid delays. Finally, make sure you do not inadvertently loose your military retirement in favor of combining your military service with federal retirement plans. This is a decision that will require a personalized examination of your finances, be proactive and make the choice that can afford you the greatest benefits.

[1] See, https://hawsfederaladvisors.com/buying-back-military-time-the-ultimate-guide/ (finding that 30% of federal employees have some type of military time).

[2] https://www.usgs.gov/human-capital/military-service-deposits

[3] Id.

[4] Id.

[5] See, https://hawsfederaladvisors.com/buying-back-military-time-the-ultimate-guide/

[6] See, https://www.dfas.mil/CivilianEmployees/militaryservice/militaryservicedeposits/

[7] https://hawsfederaladvisors.com/buying-back-military-time-the-ultimate-guide/

[8] Id.

[9] https://www.dfas.mil/civilianemployees/militaryservice/militaryservicedeposits/

[10] https://www.opm.gov/forms/pdf_fill/RI20-97.pdf

[11] See, https://www.dfas.mil/civilianemployees/militaryservice/militaryservicedeposits/

[12] Id. (National Personnel Records Center, Military Personnel Records, 9700 Page Avenue, St. Louis, MO 63132-5100).

[13] https://www.dfas.mil/civilianemployees/militaryservice/militaryservicedeposits/accepteddocuments/

[14] https://www.dfas.mil/civilianemployees/militaryservice/militaryservicedeposits/

[15] https://www.opm.gov/forms/pdf_fill/RI20-97.pdf

[16] Id.

[17] Id.

[18] Id.

[19] See, https://d9-wret.s3.us-west-2.amazonaws.com/assets/palladium/production/s3fs-public/atoms/files/EstimatedEarningsInstructions_0.pdf

[20] https://www.opm.gov/forms/pdf_fill/RI20-97.pdf

[21] https://www.dfas.mil/civilianemployees/militaryservice/militaryservicedeposits/

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] https://www.pay.gov/public/form/start/60658196

[30] Id.

[31] https://d9-wret.s3.us-west-2.amazonaws.com/assets/palladium/production/s3fs-public/atoms/files/EstimatedEarningsInstructions_0.pdf

[32] Id.

[33] Id.

[34] Id.

[35] https://www.dfas.mil/CivilianEmployees/militaryservice/militaryservicedeposits/estimator/

[36] Id.

[37] See, https://www.dfas.mil/Portals/98/SF3108%20-%20FERS.pdf

[38] https://hawsfederaladvisors.com/buying-back-military-time-the-ultimate-guide/

[39] Id.

[40] Id.

[41] https://www.vaforvets.va.gov/vaforvets/docs/FAQs-Military-Buy-Back-Program_9_24_20v2.pdf

 

Written By Spring 2022 M-VETS Student Advisor Hannah Petruzzi.

**Military Crisis Line: 800-273-8255, then press 1; or text 838255 to access online chat[1]**

Awareness of mental health issues, especially those pervasive throughout the armed services, has grown substantially over the last decade.[2] Prior research found high rates of mental health problems among United States servicemembers and Veterans, including post-traumatic stress disorder (PTSD), depression, substance use, and suicide.[3] Unfortunately, servicemembers are often hesitant to obtain assistance due to the stigma surrounding mental health conditions and (often well-founded) concerns about reporting requirements and potential negative effects on career advancement. Military servicemembers report barriers to seeking care, primarily the fear of negative consequences for using mental health services and lack of clarity surrounding confidentiality.[4]

QUESTION 1: How many servicemembers experience a mental health issue?

As of 2014, twenty-five percent of U.S. military members had some sort of mental disorder, including panic disorder, ADHD, or depression.[5] Despite a long-list of mental health conditions which are disqualifying for military service, two-thirds of those individuals had their condition prior to enlisting.[6] Mental health issues persist once the individual completes a term of service as well. During the period from 2008 to 2017, more Veterans committed suicide “than the total number of US service members who died during the entire Vietnam War.[7]” As of 2018, Veterans were more than twice as likely as civilians to commit suicide.[8] Strikingly, nearly one third of the service members who returned from Iraq or Afghanistan reported developing a mental health condition or experiencing a traumatic brain injury during deployment.[9] Roughly eighteen percent of them returned with PTSD or depression, and others experienced a range of issues including anxiety, suicidal thoughts, alcoholism, and drug addiction.[10]

QUESTION 2: If I obtain counseling, will my sessions be confidential?

Generally, yes. The majority of counseling treatments and services create protected information and are kept confidential.[11] However, there are several exceptions servicemembers should consider prior to obtaining counseling. Individuals should review privacy limitations with their provider from the outset. Specifically, servicemembers should have an open discussion with their psychologist or counselor and ask about the counselor’s note taking practices. All psychologists are mandated to break confidentiality to report suspected child abuse or dependent-adult abuse, protect clients from self-harm, and warn identified third parties of imminent harm.[12] Military psychologists may also be required to disclose confidential information to assist in lawful military investigations, conduct suitability screenings or command-directed mental health evaluations, and report spousal abuse or other criminal behavior.[13]

Servicemembers can be assured that the Health Insurance Portability and Accountability Act of 1996 (HIPPA) does apply to the Department of Defense (DoD). However, HIPAA itself includes an armed forces exception.[14] There are nine categories which fall under the HIPAA armed services exception. These are the primary avenues through which information may be made accessible to command once counseling is provided to a servicemember.

HIPPA’s armed forces exception provides that “a covered entity, including a covered entity not part of or affiliated with the DoD may use and disclose protected health information of individuals who are armed forces personnel for activities deemed necessary by appropriate military command authorities to assure the proper execution of the military mission.[15]” However, in 2011 the DoD issued an instruction entitled “Command Notification Requirements to Dispel Stigma in Providing Mental Health Care to Servicemembers.[16]” That instruction requires healthcare providers to follow a presumption of NOT notifying a servicemember’s commander when that service member obtains mental healthcare or substance abuse educational services unless that presumption is overcome by one of the nine enumerated standards. Furthermore, in making such permitted disclosures the provider must provide the minimum amount of information to the commander concerned as required to satisfy the purpose of the disclosure. The nine enumeration notification standards are detailed below. Note that while the DoD instruction (DoDI) requires disclosure on these nine criteria, the DoDI does not mandate blanket disclosure of violations of the Uniform Military Justice Code (UCMJ) or the law of international armed conflict if such information does not otherwise fall under one of these categories.

1. Harm to Self. This applies where the provider perceives a serious risk that the servicemember will cause harm to themselves either as a result of the condition or as result of medical treatment of the condition.

2. Harm to Others. This applies where the provider believes the servicemember poses a serious risk of harm to others as a result of the condition or resulting from medical treatment of the condition, including child abuse or domestic violence.

3. Harm to Mission. This applies only where the provider perceives a serious risk of harm to a specific military operational mission, generally including disorders that significantly affect impulsivity, insight, reliability, and judgment.

4. Special Personnel. This exception applies where the individual is in the Personnel Reliability Program (DoDI 5210.42), Nuclear Weapons Personnel Reliability Program, or a position that has been pre-identified by service regulation or command as having responsibilities of such sensitivity or urgency that normal notification standards would risk mission accomplishment.

5. Inpatient Care. This applies when the service member is admitted or discharged from any inpatient mental health or substance abuse treatment facility.

6. Acute Medical Conditions Interfering with Duty. This applies when the individual is experiencing an acute mental health condition or engaging in treatment that impairs his or her ability to perform assigned duties.

7. Substance Abuse Treatment Program. This applies where the individual has entered or is discharged from a formal outpatient or inpatient treatment program for rehabilitation for alcohol and drug abuse for the treatment of substance abuse or dependence.

8. Command Directed Mental Health Evaluation. This applies when the mental health service is obtained pursuant to a command-directed mental health evaluation consistent with the DoD Directive on mental health evaluation.

9. Other Special Circumstances. This applies where the import of executing the military mission outweighs the interests served by avoiding notification and is determined on a case-by-case basis by a healthcare provider at the O-6 or equivalent level or above or a commanding officer at the O-6 level or above.

QUESTION 3: Once I feel comfortable obtaining counseling, what are my options within the military?

 There are counseling options within the DoD system. Military OneSource counselors are available for free, short-term, confidential non-medical counseling services for a wide range of issues from marital conflict to stress management to coping with loss and deployment.[17] These sessions are available in person at military installations worldwide, over the phone, or via secure video or online chat.[18] All active-duty service personnel are eligible for OneSource counseling, including members of the Army, Marine Corps, Navy, Air Force, and Space Force.[19] Visit https://www.militaryonesource.mil/ for additional information on scheduling an appointment.

Military and Family Life Counseling (MFLC) is another DoD program providing free non-medical counseling for service members and their families. Also provided by OneSource, this program provides support for family challenges unique to military life in sessions one-on-one, to couples, or in groups.[20] Assistance can cover deployment adjustments, stress management, moving preparations, relationship building, problems at work, the grieving process following the death of a loved one or colleague, and much more. Services obtained through this program are confidential, not reported to the command, and do not impact a servicemember’s security clearance.[21]

 QUESTION 4: Are there counseling options outside of the military?

 Yes, if you have a mental health diagnosis or are able to pay out-of-pocket. You may wish to seek counseling outside of available military resources. Civilian psychologists, especially in private-practice settings, “typically have greater control over client records and [may be able to] limit access to therapy notes.[22]” The major difference with these psychologists is they have a professional duty “solely to the service member seeking treatment,” as opposed to military counselors and therapists who may have conflicted interests because of their own duties to command.[23] However, servicemembers should consider potential drawbacks, such as whether the particular civilian psychologist has sufficient experience working with the military population to understand the military culture and relevant stressors.

Servicemembers should also consider the cost of obtaining medical or mental health counseling outside of military resources. Some providers may accept TRICARE directly and other organizations have established a network of therapists who provide TRICARE-covered mental health services via secure video chat.[24] For example, Telemynd is a “nationally recognized partner for Tele-behavioral Health under TRICARE.[25]” However, TRICARE only covers services that “fall under the definition of medical counseling, or counseling for the purpose of treating one or more diagnosed mental health conditions.[26]” Thus, a servicemember wishing to obtain counseling outside of the military network will likely have to pay the entire cost of service and should discuss the price and budgetary restrictions with each provider to make an informed decision.

QUESTION 5: Are there alternatives to therapy or medical counseling?

Yes. Active-duty personnel may also consider meeting with a military chaplain. While chaplains are not licensed medical professionals, they are “bound by absolute confidentiality.[27]” They are also trained in counseling servicemembers and often have a solid foundation of experience helping individuals with a broad array of issues including combat stress, deployment, marriage and family, substance abuse, grief, and finances.[28] Relevant contact information for your installation’s chaplain is readily accessible on your installation’s website.

QUESTION 6: Are there alternatives if I think I have an alcohol or substance abuse problem?  

 Absolutely. Alcoholics Anonymous (AA) meetings are widely available on military installations and in civilian communities.[29] AA and Narcotics Anonymous (NA) provide a useful alternative to counseling services and other substance abuse treatment programs which may lead to command notification. These follow 12-step models which involve: “[admitting] that you cannot control your addiction or compulsion, [recognizing] a higher power (as you understand) that can give you strength, [examining] past mistakes with the help of a sponsor (experienced members), [making] amends for these mistakes, [learning] to live a new life free from old, unhealthy habits and behaviors, [and helping] others who suffer from the same addiction or compulsions.[30]”

Many active-duty servicemembers participate in AA or NA. Stories of Alcoholics Anonymous actively involved in or retired from the armed forces can be found here: https://www.aa.org/aa-and-armed-services. One Veteran with experience in the programs stated, “Alcoholics Anonymous provided a practical program of action that was SIMPLE. It wasn’t affiliated with the military in any way and most importantly it was discreet . . . [so] my command wasn’t kept in the loop. I was surprised to see support available in every country I’ve been stationed, either in person or online.[31]”

CONCLUSION

Servicemembers can be assured information obtained in counseling sessions will only be shared with command in dire circumstances. In the majority of situations, obtaining counseling through OneSource or a private therapist, or speaking with your installation’s chaplain, can provide guidance on managing the challenges of military life without involving command. Alternatively, where alcohol or substance use is causing concern, an anonymous twelve-step group can provide a lifeline for recovery without risking one’s career.

[1] https://www.militaryonesource.mil/confidential-help/non-medical-counseling/military-onesource/military-counseling-for-stress/?gclid=Cj0KCQjw4PKTBhD8ARIsAHChzRKuS2lq1MZ-YYGNmgf2HSja6VML9XDuy4iHAtN3VYERKx67KZ090QwaAkt2EALw_wcB.

[2] https://www.rand.org/pubs/research_briefs/RB9336.html.

[3] https://www.tandfonline.com/doi/full/10.1080/21635781.2016.1153541.

[4] https://www.rand.org/pubs/research_briefs/RB9336.html

[5] https://pubmed.ncbi.nlm.nih.gov/24590120/.

[6] Id.

[7]  https://www.atlanticcouncil.org/blogs/new-atlanticist/mental-health-care-in-the-military-an-opportunity-for-progress/

[8] Id.

[9] Id.

[10] Id.

[11] https://www.militaryonesource.mil/confidential-help/non-medical-counseling/military-and-family-life-counseling/7-counseling-options-for-service-members-and-their-families/

[12]  https://www.findapsychologist.org/confidentiality-for-service-members-seeking-therapy-by-dr-titus-hamlett/.

[13] Id.

[14] Title 45 C.F.R. § 164.512(k).

[15] Id.

[16] https://ckapfwstor001.blob.core.usgovcloudapi.net/pfw-images/dbimages/Forensic%20Psych%20Ch%2002.pdf.

[17] https://www.militaryonesource.mil/confidential-help/non-medical-counseling/.

[18] Id.

[19] Id.

[20] https://www.militaryonesource.mil/confidential-help/non-medical-counseling/military-and-family-life-counseling/the-military-and-family-life-counseling-program/.

[21] Id.

[22] https://www.findapsychologist.org/confidentiality-for-service-members-seeking-therapy-by-dr-titus-hamlett

[23] Id.

[24] https://www.telemynd.com/military.

[25] Id.

[26] https://www.tricare.mil/CoveredServices/Mental/GettingMHCare/ADSM_Appts.

[27] https://www.militaryonesource.mil/family-relationships/spouse/getting-married-in-the-military/the-unit-chaplain-roles-and-responsibilities/#:~:text=The%20chaplain’s%20responsibilities%20include%20performing,military%20members%2C%20including%20combat%20environments.

[28] Id.

[29] https://www.militaryonesource.mil/health-wellness/mental-health/substance-abuse-and-addiction/recovering-from-a-drug-or-alcohol-use-problem/.

[30] Id.

[31] https://alcoholics-anonymous.eu/new-to-aa/armed-services/.

 

 

 

Written by Spring 2022 M-VETS Student Advisor Carl Chandler.

Most soldiers, sailors, airmen, marines, and guardians are aware that in order to be eligible for retirement at their current rank, they must serve for a set amount of time in that rank before applying for retirement.  However, recent changes wrought in military personnel law have changed the time in grade requirements for officers, and servicemembers should be aware of the ramifications of not meeting these requirements—even if they aren’t aware of them when they apply for retirement.

This change applies specifically to officers applying for retirement.

The William M. (Mac) Thornberry National Defense Authorization Act for the Fiscal Year 2021 (“NDAA”) became public law on 1 January 2021.[1]  This law made several changes to military personnel statutes, specifically 10 U.S.C.A. § 1370(b)(1), changing the time-in-grade (“TIG”) requirement for any officer applying for voluntary retirement in a grade above Captain from six months to three years:[2]

(b) Retirement of officers retiring voluntarily.—

(1) Service-in-grade requirement.–In order to be eligible for voluntary retirement under any provision of this title in a grade above the grade of captain in the Army, Air Force, or Marine Corps, lieutenant in the Navy, or the equivalent grade in the Space Force, a commissioned officer of the Army, Navy, Air Force, Marine Corps, or Space Force must have served on active duty in that grade for a period of not less than three years, except that–

(A) subject to subsection (c), the Secretary of Defense may reduce such period to a period of not less than two years for any officer; and

(B) in the case of an officer to be retired in a grade at or below the grade of major general in the Army, Air Force, or Marine Corps, rear admiral in the Navy, or an equivalent grade in the Space Force, the Secretary of Defense may authorize the Secretary of the military department concerned to reduce such period to a period of not less than two years.

10 U.S.C.A. § 1370(b) [emphasis added]

This means that if you are an officer applying to retire above the rank of Captain, you need to have at least three years of service from the date you pinned on your rank to be eligible to retire at that rank.

Imagine thinking you had successfully retired at a given rank only to receive a letter from your service’s personnel center informing you that you are actually retired at a lower rank.  It does not matter if you were made aware of the change by your local personnel section or not—the law applies to you.

What avenues of recourse are available to an officer who was impacted by this change and retired thinking they met the TIG requirements but actually did not?  Truthfully—not many.  Jurisdiction to review and modify military records, including retirement rank, is given to the Boards of Correction for Military Records (“BCMRs”): “The Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice.”.[3]  This would involve submitting a DD Form 149 to the retired officer’s service BCMR.  However, the statutory change to the TIG requirement also outlines the waiver requirements to waive the TIG requirement, and they are very difficult to meet.

10 U.S.C.A. § 1370(b)(3) provides the statutory grounds and authority for waiver of the TIG requirement, stating, “Subject to subsection (c), the President may waive the application of the service-in-grade requirement in paragraph (1) to officers covered by that paragraph in individual cases involving extreme hardship or exceptional or unusual circumstance.  The authority of the President under this paragraph may not be delegated.”[4]

This means that the waiver authority to waive the TIG requirement is the President of the United States (“POTUS”), and POTUS may only grant a waiver in the case of extreme hardship or unusual circumstance.  The problem arises in trying to prove extreme hardship or unusual circumstance.  One might think that the change could affect retirement pay, and that the reduction in pay would constitute an extreme hardship for the retired servicemember, however, this is not the case.  Retirement pay for most officers currently of retirement age is calculated using the High-36 rule, which applies to military members with an initial date of entry on or after September 8, 1980, but before January 1, 2018.[5]  This means that retirement pay is calculated using an average of a servicemember’s highest 36 months of base pay, meaning that the actual retirement rank on your DD 214 is largely irrelevant in calculating retirement pay.  For example, if you served as a Lieutenant Colonel for one year before applying for retirement, your highest 36 months of pay would be an average of your two years of Major pay and your one year of Lieutenant Colonel pay, even though you would be retired as a Major because you had not met the TIG requirement of three years to be retired as a Lieutenant Colonel.  Thus, your retirement as a Major, even if you thought you would be retired as a Lieutenant Colonel, is not affecting your retirement pay, and a reduction of your retirement rank is likely not an “extreme hardship” for financial reasons for you.

Unusual circumstance is also difficult to prove.  How can you prove that the statutory change to TIG requirements affects you differently than any other officer?  The author of this post cannot imagine a scenario where any one officer would be impacted by this change in a manner significantly dissimilar to other officers.

For a servicemember caught of guard by these changes, what seems like a demotion in retirement can be stressful and upsetting, no matter how a service attempts to console you by telling you that your service was appreciated.  The rules, however, are the rules, and servicemembers should make sure they educate themselves on their retirement eligibility before applying for retirement.

As always, if you are an officer considering retirement—confirm with your base personnel section and service personnel center that you meet the requirements for retirement at your current rank.  If you don’t meet the requirements and submit a retirement application, you may be retired at a lower rank than you anticipated.  As discussed earlier, a waiver to rectify this situation is extremely difficult to obtain—know the rules before you push the button.

[1] See William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283, 2021 (codified at 10 U.S.C.A. § 1370 (2021)).

[2] 10 U.S.C.A. § 1370(b)

[3] 10 U.S.C. § 1552.

[4] 10 U.S.C.A. § 1370(b)(3)

[5] Military Compensation, Department of Defense, https://militarypay.defense.gov/Pay/Retirement/.

By Spring 2022 M-VETS Student Advisor Besa Bucaj.

MST

What is it?

Military Sexual Trauma or “MST” refers to sexual assault or sexual harassment experienced during military service.[1] Sadly, MST is somewhat common in the military, as 1 in 3 women and 1 in 50 men have stated they experienced MST.[2] While the rate of MST is higher for women than for men, the numbers of those who experience MST are significant, as there are so many more men than women in the military.[3]

MST can take the form of disturbing memories or nightmares, feelings of depression, numbness, isolation from others, self-doubt, self-blame, decreased self-esteem, anger, irritability, and difficulty with feeling safe.[4] MST can also manifest with physical health problems, like trouble with sleep.[5] Some who experience MST use alcohol or other drugs to numb or escape the negative feelings resulting from this trauma.[6]

When filing for claims at the VA, service members often hesitate to include incidents of MST.[7] Some of these reasons for hesitation include not wanting to collect the necessary evidence or statements or attending a mental health exam while still in service, in addition to the fear of not being believed, retribution from fellow service members, and poor reflection on their service.[8] The Department of Defense has reported that 2 out of every 3 sexual assaults that occur in the military go unreported, which can lead to challenges in gathering evidence to support a veteran’s MST claim.[9]

How the VA can help?

The VA does offer different avenues of treatment for those with MST. This free treatment does not require any documentation of the MST experience or a VA disability compensation rating.[10] In fact, every VA health care facility has an MST Coordinator who serves as a contact person for MST-related issues and who can assist veterans with accessing care.[11]

For individuals who have mental health diagnoses such as PTSD or depression related to MST, evidence-based therapies have proved to be the most effective treatments.[12] Some of the evidence-based therapies used in response to MST include prolonged exposure (PE), cognitive processing therapy (CPT), cognitive behavioral therapy (CBE), interpersonal therapy (IPT), acceptance and commitment therapy (ACT), motivational enhancement therapy (MET), and dialectical behavioral therapy (DBT).[13]

How the military has changed?

While the military has changed and grown in its response to MST, there is still much room for improvement. An August 2018 report by the VA Office of Inspector General revealed that the VA had erroneously adjudicated 49 percent of PTSD claims for MST in 2017.[14] In response to these unfortunate numbers, the VBA updated its training courses for MST claims, and, in November 2018, made it a requirement that only personnel who had taken this training could process the MST claims.[15]

In the DOD Annual Report on Sexual Assault in the Military, Secretary of Defense Lloyd Austin committed to addressing sexual assault and harassment in the military and directed new initiatives to counter sexual assault and sexual harassment in the military.[16] Some of his main initiatives included establishing a 90-day independent review commission to improve how the department addresses sexual assault and sexual harassment, assessing compliance with sexual assault and harassment policies and prevention efforts, conducting evaluations at high-risk installations, and establishing a violence prevention workforce.[17]

In particular, the CATCH a Serial Offender Program received special note in the DOD Report. CATCH was launched in 2019 and the program allowed service members making restricted reports to confidentially provide this information about alleged offenders and incidents.[18] If investigators discover a potential match to other reported incidents through the CATCH program, the victims are notified and provided an opportunity to convert their report from restricted to unrestricted and participate in the military justice process.[19] During 2019, CATCH received 444 submissions from victims who had previously filed a restricted report and 11 of these submissions resulted in matches.[20] Secretary Austin’s efforts also included the continued implementation of recommendations from previous reports.[21]

Overall, the DOD documents and the direction of Secretary Austin display an understanding that there is always more the government can do for its veterans, and especially for the victims of sexual assault. While great strides have been made in treating MST and protecting servicemembers from sexual assault, we can do more.

[1] See Effects of Military Sexual Trauma | Mental Health | Overview, U.S. Dept. of Vet. Affairs, available at https://www.me ntalhealth.va.gov/msthome/index.asp.

[2] See Military Sexual Trauma, U.S. Dept. of Vet. Affairs (May 2021), available at https://www.mentalhealth.v a.gov/docs/mst_general_factsheet.pdf

[3] See Id.

[4] See Effects of Military Sexual Trauma | Mental Health, U.S. Dept. of Vet. Affairs, available at https://www.me ntalhealth.va.gov/msthome/index.asp.

[5] See Id.

[6] See Id.

[7] See Supporting Survivors: Assessing VA’s Military Sexual Programs, Veterans of Foreign Wars (November 17, 2021), available at https://www.vfw.org/advocacy/national-legislative-service/congressional-testimony/2021/11/supporting-survivors-assessing-vas-military-sexual-trauma-programs.

[8] See Id.

[9] See Id.

[10] See Mental Health | Military Sexual Trauma | Treatment, U.S. Dept. of Vet Affairs, available at https://www.mentalhealth.va.gov/msthome/treatment.asp.

[11] See Mental Health | Military Sexual Trauma | Treatment, U.S. Dept. of Vet Affairs, available at https://www.mentalhealth.va.gov/msthome/treatment.asp.

[12] See Id.

[13] See Id.

[14] See Supporting Survivors: Assessing VA’s Military Sexual Programs, Veterans of Foreign Wars (November 17, 2021), available at https://www.vfw.org/advocacy/national-legislative-service/congressional-testimony/2021/11/supporting-survivors-assessing-vas-military-sexual-trauma-programs.

[15] See Id.

[16] See generally Annual Report on Sexual Assault in the Military, Dept. of Defense (March 15, 2021), available at https://www.sapr.mil/sites/default/files/DOD_Annual_Report_on_Sexual_Assault_in_the_ Military_FY2020.pdf

[17] See Id. at 4.

[18] See Id. at 6.

[19] See Annual Report on Sexual Assault in the Military, Dept. of Defense (March 15, 2021), available at https://www.sapr.mil/sites/default/files/DOD_Annual_Report_on_Sexual_Assault_in_the_ Military_FY2020.pdf

[20] See Id. at 6.

[21] See Id. at 6.

 

Written by Spring 2022 M-VETS Student Advisor Doug Boyle.

1. Introduction/Proposed Reforms

Sexual assault in the military has been a major public issue, particularly over the past decade. The issue was prominently highlighted by the tragic circumstances surrounding the death of Specialist (“SPC”) Vanessa Guillen. In April 2020, SPC Guillen was stationed at Fort Hood, Texas when she disappeared. Her remains were found in June 2020, and the suspect in her murder committed suicide after escaping the base during the investigation.[1] Then-Secretary of the Army Ryan McCarthy created an independent review panel to study the command climate at Fort Hood. The panel identified major flaws with the sexual harassment and assault response prevention (“SHARP”) program at Fort Hood, and a command climate that was permissive of sexual harassment and sexual assault.[2] And an Army investigation into the handling of SPC Guillen’s case found that she had been sexually harassed by a supervisor and leadership in her unit failed to take the proper actions. While the investigation did not connect the harassment to SPC Guillen’s murder, it did result in the firing of 21 Army personnel.[3]

During Fiscal Year 2020, the Department of Defense (“DoD”) identified a total of 6,290 reports of sexual assault by service members for incidents occurring during military service.[4] But of those 6,290 reports, only 50 led to sex-offense convictions under the Uniform Code of Military Justice (“UCMJ”). Women make up 16.5% of the armed services. But according to some studies almost one-quarter of female servicemembers have reported experiencing sexual assault while more than half have reported experiencing sexual harassment.[5] As it stands now, military commanders have the authority to decide whether a servicemember accused of sexual assault (and any other crime for that matter) is subject to a court martial[6]—regardless of the evidence against that servicemember. Advocates and some politicians saw this aspect of the UCMJ as a reason why “troops who are assaulted rarely see justice. . . .”[7]

As a result, the past decade has seen three major proposals aimed at reforming sexual assault prosecutions under the UCMJ. First, Senator Kirsten Gillibrand (D-NY) introduced the Military Justice Improvement Act (“MJIA”) in 2013. After several unsuccessful attempts to get the MJIA passed, Senator Gillibrand introduced a revised bill, the Military Justice Improvement and Increasing Prevention Act (“MJIIPA”) in 2021.[8] Under MJIIPA, the authority to convene a court martial after an alleged “covered offense” would be transferred from commanding officers to Judge Advocate General Corps’ (“JAG”) officers at an O-6 (Navy commanders and Army/Air Force/Marine Corps colonels) ranking or higher. Furthermore, that JAG must “have significant experience” with court martial trials and must be “outside the chain of command of the [servicemember] subject to such charges.”[9]

The UCMJ’s punitive articles (i.e., criminal offenses) are found in articles 77 through 134. These articles cover offenses ranging from breach of medical quarantine and “malingering,” to rape and murder.[10] Under MJIIPA, more than thirty of the UCMJ’s offenses would constitute “covered offenses,” meaning the court martial convening authority for these offenses would be divested from commanding officers and vested in qualified JAG officers.[11] Unsurprisingly, “covered offenses” include wrongful broadcast or distribution of intimate visual images (article 117a), rape (article 120), and other sexual misconduct (article 120c). But perhaps surprisingly, “covered offenses” also include larceny and wrongful appropriation (article 121) and fraudulent use of credit cards, debit cards, and other access devices (article 121a).[12] Finally, to constitute a “covered offense,” the maximum punishment authorized by the UCMJ must include “confinement for more than one year,” that is, the offense must be felonious.[13]

The second major proposal regarding sexual assault prosecutions in the military was the I Am Vanessa Guillén Act (the “Guillén Act”) which was introduced by a bipartisan group of more than 100 congressmen and congresswomen in 2020.[14] Under the Guillén Act, each military branch would be required to create a position of chief prosecutor, filled by “a commissioned officer in the grade of O-6 or above who has significant experience prosecuting sexual assault trials by court martial.”[15] If a servicemember were charged with a “sex-related offense,” the traditional court martial convening authority (i.e., the servicemember’s commanding officer) would have to present that charge to the chief prosecutor’s office.[16] At that point, the chief prosecutor’s office would decide whether to convene a court martial regarding the sex-related offense.[17]

The Guillén Act would cover far fewer offenses than MJIIPA. Under the Guillén Act, “sex-related offenses” include rape and sexual assault (article 120), mail: deposit of obscene matter (article 120a), rape and sexual assault of a child (article 120b), and other sexual misconduct (article 120c). As it stands, sexual harassment is not a standalone offense under the UCMJ. But servicemembers who engage in sexual harassment can be charged under other punitive articles. For example, a court recently upheld the Navy’s decision to charge a sailor accused of sexual harassment under UCMJ article 92 (failure to obey order or regulation).[18] And servicemembers have been properly charged with sexual harassment under UCMJ articles 117 (wrongful broadcast/distribution of intimate visual images)[19] and 93 (cruelty or maltreatment).[20]

The Guillén Act however would add article 120d to the UCMJ and make sexual harassment a standalone offense. The definition of sexual harassment under the Guillén Act is lengthy. But it includes “sexual advance[s],” “request[s] for sexual favors,” and “any other conduct of a sexual nature” in circumstances where “submission to the conduct involved is made either explicitly or implicitly a term or condition of employment,” “submission to or rejection of such conduct is used as the basis for an employment decision,” or “such conduct . . . create[s] an intimidating hostile, or offensive work environment. . . .”[21] Naturally then, the newly created article 120d would be a “sex-related offense” for which the court martial convening decision must be made by the office of the chief prosecutor.[22]

The third reform proposal was made by a DoD Independent Review Commission (“IRC”) that began its work in March 2021.[23] At President Biden’s direction, Secretary of Defense (“SECDEF”) Lloyd Austin established the 90-day IRC which was comprised of civilians, retired servicemembers, government officials, and federal prosecutors.[24] The IRC’s recommendations were primarily focused in four areas: Accountability, prevention, climate and culture, and victim support and care. At its conclusion, the IRC made 82 recommendations to SECDEF Austin.[25] It is SECDEF Austin’s intent to accept the IRC’s recommendations wherever possible,[26] but several are key here.

The first is the recommendation to create an “Office of the Special Victim Prosecutor in the Office of the Secretary of Defense . . . and shift legal decisions about prosecution of special victim cases out of the chain of command.”[27] The IRC also recommended ensuring independent personnel with specialized training investigate claims of sexual harassment, mandatory separation in the event of a substantiated claim, and “[p]rofessionalized career billets for military justice personnel handling special victim crimes.”[28] Finally, the IRC recommended that sexual harassment be delineated as a standalone offense and expedited processing of Executive Orders (“E.Os.”) regarding sexual assault in the military.[29]

2. What Actually Happened?

On 27 December 2021, President Biden signed into law the National Defense Authorization Act for Fiscal Year 2022 (the “2022 NDAA”).[30] The first change made in the context of military sexual assault is the insertion of a new section—824a (“Special trial counsel”)—into the UCMJ.[31] This addition to the UCMJ mandates the secretaries of each military branch to promulgate regulations for detailing JAG officers as special trial counsel (“STC”).[32] In turn, a STC has exclusive authority to determine whether reported offenses are “covered offenses,” over which a STC would have exclusive authority in determining whether to convene a court martial.[33] Plus, a STC could exercise authority over “any offense that the [STC] determines to be related to the covered offense.”[34] If a STC determines that something is a “covered offense”—but does not convene a court martial—the accused’s commander may nonetheless pursue administrative actions.[35] And each military service will have a lead STC who is a JAG officer with at least an O-7 (brigadier general or rear admiral (lower half)) rank.[36] These provisions of the 2022 NDAA will not take effect until late 2023.[37]

Next, the 2022 NDAA amends article 1 of the UCMJ (“Definitions”) in part by defining what constitutes a “covered offense.”[38] “Covered offenses” include UCMJ articles 117a (Wrongful broadcast/distribution of intimate visual images), 118 (Murder), 119 (Manslaughter), 120 (Rape and sexual assault generally), 120b (Rape and sexual assault of a child), 120c (Other sexual misconduct), 125 (Kidnapping), 128b (Domestic violence), 130 (Stalking), 132 (Retaliation).[39] In addition, “the standalone offense of child pornography,” which is punishable under UCMJ article 134 is a “covered offense.”[40]

The 2022 NDAA also directed President Biden to prescribe regulations establishing sexual harassment as an offense punishable under UCMJ article 134, and revise the Manual for Courts-Martial (“MCM”) to include the new offense.[41] On 26 January 2022, President Biden issued E.O. 14062 (“2022 Amendments to the Manual for Courts-Martial, United States”).[42] In that E.O., President Biden amended the MCM to reflect that the following elements constitute sexual harassment:

• 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 a 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 either: (i) to the prejudice of good order and discipline in the armed forces; (ii) of a nature to bring discredit upon the armed forces; or (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.[43]

3. Will This Work?

As some commentators have noted, “except for diehard opponents of any transfer of disposition authority, everyone got something and no one got everything they sought.”[44] For example, Senator Gillibrand issued a statement after the 2022 NDAA’s passage complaining that “House and Senate Armed Services leadership have gutted our bipartisan military justice reforms behind closed doors. . . .”[45] Senator Gillibrand goes on to bemoan the fact that court martial convening authority writ large was not removed from commanding officers (recall the expansive list of crimes under MJIIPA for which commanders would not have convening authority).[46]

Conversely, Army Lieutenant General (Retired) Thomas Spoehr has argued that removing commanding officers’ convening authority “reduces them to mere observers in the justice system.”[47] To Mr. Spoehr, removing commanders’ convening authority in sexual assault cases will actually lead to fewer court martials. This is because as it stood prior to the 2022 NDAA, a commander could convene a court martial regardless of whether probable cause was established. In other words, a commander could convene a court martial even if there was no reasonable likelihood of success at trial—because the commander is not bound by the same rules of ethics that military lawyers are.[48]

Since the founding of the United States, its commanding officers have been tasked with maintaining “good order and discipline.”[49] Individuals like Mr. Spoehr argue that this mandate has led commanding officers to convene court martials even when probable cause did not exist. This is because the commanding officers “knew that sending the case to court martial sent a powerful message that such behavior would not be tolerated, even if the ultimate success of the case at trial was not certain.”[50]

Lieutenant Colonel Dan Maurer—an Assistant Professor of Law at the United States Military Academy—points out though that arguments like Mr. Spoehr’s are based solely on anecdotal and personal experience.[51] Furthermore, when senior military officers expressed concerns about the potential passage of MJIIPA, they offered “[n]o actual evidence” that reforms would erode commanders’ abilities to “fight and win wars.”[52] In fact, empirical evidence from other modern militaries with similar limitations on commanders’ convening authority suggested that just the opposite occurred.[53]

On the one hand, whether Mr. Spoehr’s and other senior officers’ fears are based on conjecture or not, it is difficult to dismiss them out of hand. It is not hard to hypothesize a case where a commanding officer convenes a court martial related to sexual assault, despite a lack of solid evidence. The commander may convene the court martial because of political pressures or because she wants to send a message regarding the tolerance of undisciplined behavior. If that same case is referred to a STC who has significant education and experience related to trial, would the STC really convene a court martial when there is not even enough evidence to find probable cause?

That said, the foregoing example is just that, a hypothesis. And there is evidence that removing the convening authority of commanding officers may actually improve commanders’ abilities to maintain good order and discipline.[54] All told, only time will tell whether the 2022 NDAA’s provisions strike the right balance between improving the military justice system’s handling of sexual assault and protecting commanding officers’ proper authority.

[1] Eline de Bruijn, Rebuilding Trust After Tragedy: How Vanessa Guillen’s Death Changed Fort Hood and the Army, WFAA News (15 JUL 2021), https://www.wfaa.com/article/news/local/texas/rebuilding-trust-tragedy-how-vanessa-guillens-death-change-fort-hood-army/287-f88df4ee-17aa-47a8-978b-49e3fbddbfac.

[2] Allie Yang, Denise Martinez-Ramundo, Natalie Cardenas, Chris Kilmer & Abby Cruz, Vanessa Guillen’s Fiance, Closest Friends Detail Upsetting Investigation, ABC News (11 JUN 2021), https://abcnews.go.com/US/vanessa-guillens-fiance-closest-friends-detail-upsetting-investigation/story?id=78174535.

[3] de Bruijn, supra note 1.

[4] Department of Defense Annual Report on Sexual Assault in the Military: Fiscal Year 2020, U.S. Dep’t Def. 5 (15 MAR 2021) (available at: https://www.sapr.mil/sites/default/files/DOD_Annual_Report_on_Sexual_Assault_in_the_Military_FY2020.pdf).

[5] See Melinda W. Moyer, ‘A Poison in the System’: The Epidemic of Military Sexual Assault, N.Y. Times (11 OCT 2021), https://www.nytimes.com/2021/08/03/magazine/military-sexual-assault.html.

[6] 10 U.S.C. § 822.

[7] Moyer, supra note 5.

[8] Press Release, Senator Kirsten Gillibrand, Gillibrand Statement on Inclusion of Military Justice Improvement and Increasing Prevention Act in NDAA, 22 JUL 2021 (available at: https://www.gillibrand.senate.gov/news/press/release/gillibrand-statement-on-inclusion-of-military-justice-improvement-and-increasing-prevention-act-in-ndaa).

[9] Military Justice Improvement and Increasing Prevention Act of 2021, S. 1520, 117th Cong. § 2(d)(1)(A)-(C) (2021) [hereinafter MJIIPA].

[10] See generally 10 U.S.C. §§ 877-934.

[11] See MJIIPA § 2(b)(1)(A)-(B).

[12] MJIIPA § 2(b)(1)(A).

[13] Id.

[14] Press Release, Representative Jamie Raskin, 100+ House Members Introduce Bipartisan I Am Vanessa Guillén Act to Transform Military’s Response to Sexual Violence and Missing Servicemembers, 16 SEPT 2020 (available at: https://raskin.house.gov/2020/9/100-house-members-introduce-bipartisan-i-am-vanessa-guill-n-act-transform#:~:text=The%20I%20Am%20Vanessa%20Guill%C3%A9n%20Act%20will%20fundamentally%20reform%20reporting,military%20service%2C%20to%20bring%20charges).

[15] I Am Vanessa Guillén Act of 2020, H.R. 8270, 116th Cong. § 2(a)(2) (2020) [hereinafter Guillén Act].

[16] Guillén Act § 2(a)(1).

[17] Guillén Act § 2(a)(1).

[18] See generally United States v. Olivares, No. 201800125, 2019 CCA LEXIS 97, at *2­–12 (N-M. Ct. Crim. App. 7 MAR 2019).

[19] United States v. Griffin, 81 M.J. 646 (N-M. Ct. Crim. App. 2021).

[20] United States v. Dear, 40 M.J. 196 (C.A.A.F. 1994).

[21] Guillén Act § 3(a)(1).

[22] Guillén Act § 2(a)(1).

[23] C. Todd Lopez, Commission Begins 90-Day Look into Sexual Assault in Military, U.S. Dep’t Def. (24 MAR 2021), https://www.defense.gov/News/News-Stories/Article/Article/2548632/commission-begins-90-day-look-into-sexual-assault-in-military/.

[24] Spotlight: Independent Review Commission on Sexual Assault in the Military, U.S. Dep’t Def., https://www.defense.gov/Spotlights/Independent-Review-Commission-on-Sexual-Assault-in-the-Military/.

[25] Greg Hadley, Pentagon’s Sexual Assault Commission Issues Recommendations, Austin Directs Reforms, Air Force Magazine (2 JUL 2021), https://www.airforcemag.com/pentagons-sexual-assault-commission-issues-recommendations-austin-directs-reforms/.

[26] Memorandum from Lloyd Austin to Senior Pentagon Leadership, Commanders of the Combatant Commands, & Defense Agency and DoD Field Activity Directors 1 (22 SEP 2021) (available at: https://media.defense.gov/2021/Sep/22/2002859809/-1/-1/0/DOD-ACTIONS-AND-IMPLEMENTATION-TO-ADDRESS-SEXUAL-ASSAULT-AND-SEXUAL-HARASSMENT-IN-THE-MILITARY.PDF).

[27] Independent Review Commission on Sexual Assault in the Military, Hard Truths and the Duty to Change: Recommendations from the Independent Review Commission on Sexual Assault in the Military 7 (2021) (available at: https://www.airforcemag.com/app/uploads/2021/07/IRC-FULL-REPORT-FINAL-1923-7-1-21.pdf).

[28] Id. at 32.

[29] Id. at 33; C. Todd Lopez, Sexual Assaults will no Longer be Prosecuted by Commanders, U.S. Dep’t Def. (2 JUL 2021), https://www.defense.gov/News/News-Stories/Article/Article/2681848/sexual-assaults-will-no-longer-be-prosecuted-by-commanders/.

[30] Statement, President Joe Biden, Statement by the President on S. 1605, the National Defense Authorization Act for Fiscal Year 2022, 27 DEC 2021 (available at: https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/27/statement-by-the-president-on-s-1605-the-national-defense-authorization-act-for-fiscal-year-2022/).

[31] National Defense Authorization Act for Fiscal Year 2022, Pub. L. No. 117-81, § 531, 135 Stat. 1546 (2021) [hereinafter 2022 NDAA].

[32] 2022 NDAA § 531.

[33] Id.

[34] Id.

[35] Id.

[36] 2022 NDA § 532.

[37] Philip D. Cave, Don Christensen, Eugene R. Fidell, Brenner M. Fissell & Dan Maurer, The Division of Authority Between the Special Trial Counsel and Commanders Under the Uniform Code of Military Justice: Planning Now for the Next Phase of Reform, Lawfare Blog (28 FEB 2022), https://www.lawfareblog.com/division-authority-between-special-trial-counsel-and-commanders-under-uniform-code-military-justice.

[38] 2022 NDAA § 533.

[39] Id.

[40] Id.

[41] 2022 NDAA § 539D.

[42] Exec. Order No. 14062, 87 Fed. Reg. 4763 (26 JAN 2022).

[43] Id.

[44] Cave, et al., supra note 37.

[45] Statement, Senator Kirsten Gillibrand, Gillibrand Statement on the Gutting of Bipartisan Military Justice Reforms by House and Senate Armed Services Leadership, 7 DEC 2021 (available at: https://www.gillibrand.senate.gov/news/press/release/gillibrand-statement-on-the-gutting-of-bipartisan-military-justice-reforms-by-house-and-senate-armed-services-leadership).

[46] See id.

[47] Thomas Spoehr, Congress Should Avoid Changes That Would Erode the Military Justice System, The Heritage Foundation (11 MAY 2021), https://www.heritage.org/defense/report/congress-should-avoid-changes-would-erode-the-military-justice-system.

[48] Id.

[49] See Kevin B. Kennedy, Good Order and Discipline: A Commander’s Responsibility, Every Airman’s Duty, Ellsworth Air Force Base (25 FEB 2014), https://www.ellsworth.af.mil/News/Commentaries/Display/Article/807890/good-order-and-discipline-a-commanders-responsibility-every-airmans-duty/.

[50] Spoehr, supra note 47.

[51] Dan Maurer, What the FY 2022 NDAA Does, and Does Not Do, to Military Justice, Lawfare Blog (30 DEC 2021), https://www.lawfareblog.com/what-fy-2022-ndaa-does-and-does-not-do-military-justice.

[52] Id. (internal quotations omitted).

[53] Id.

[54] See id.