Written by Fall 2021 M-VETS Student Advisor John Madigan.

“Infantry wins battles, logistics wins wars.”[1] Logistics management, therefore, has a preeminent place in the design of a campaign. In Iraq and Afghanistan, getting the necessary supplies to forward units was hard enough – it wasn’t uncommon for Forward Operating Bases to be supplied by airdrop because overground transport was too dangerous.[2] However, this meant that there was a reverse supply issue – a buildup of waste; human, electronic, and many others.[3] To solve this logistical traffic jam, the military determined the best answer was to install burn pits at many military bases throughout the Middle East.[4] The miscellaneous trash was doused in jet fuel or gasoline “and set ablaze, spewing toxic fumes and carcinogens into the air.”[5]

There has been widespread concern that servicemembers’ exposure to burn pits have caused a wide variety of illnesses,[6] and several illnesses (asthma, rhinitis, and sinusitis) have been classified by the Department of Veterans Affairs (VA) as being presumptively connected to those servicemembers service; provided that those illnesses manifested within 10 years of a servicemember or veteran’s overseas service.[7] The Department of Defense estimates that 3.5 million servicemembers have been exposed to burn pits;[8] an estimated 86% of post 9/11 veterans.[9]

However, many believe that many more illnesses – including cancer, other respiratory sicknesses, infertility, and others – should be service connected to burn pits as well.[10] The VA has responded to these concerns by opening a registry to “help uncover links between exposures and certain health conditions.[11] Support for this is likely forthcoming, but it may take a while.

The VA’s process for benefits distribution to veterans, servicemembers, and their families may be similar to how it handled Agent Orange – especially since the most hazardous chemical compound found in Agent Orange, dioxin, is also created from trash incineration.[12] In order to solve yet another logistical problem, the jungle, the U.S. military determined that the best solution would be to eradicate it with the potent herbicide Agent Orange.[13] In addition to removing the obstacle that the dense Vietnamese jungle posed, it would have the added benefit of interrupting enemy logistics.[14]

Just after the end of the Vietnam War, veterans began seeing adverse health conditions in both themselves and in their children.[15] Veterans began filing claims for these disabilities, citing their interaction with Agent Orange.[16] These Veterans were frequently denied as one of the requirements for receiving disability benefits for Agent Orange claims is that they manifested within one year of serving overseas.[17] In 1991, President George H.W. Bush signed the Agent Orange Act which mandated that non-Hodgkin’s lymphoma, soft tissue sarcomas, and chloracne (among others) be service connected for those veterans who were exposed to Agent Orange as part of their service, regardless of when it manifested.[18] Conditions have continued to be added since then; as recently as in 2021 with the passing of the National Defense Authorization Act.[19]  Today, 17 different illnesses have presumptive service connection for those veterans who worked in proximity to Agent Orange.[20]

The VA’s handling of the Agent Orange crisis can serve as a framework for veterans affected by burn pits. It is likely that the VA will continue to add additional illnesses that will be automatically service connected to servicemembers’ and veterans’ close contact with burn pits. However, this process may take many years. Timely and sufficient help for veterans will ensure that we have an American Military that can operate as required, and show our gratitude and appreciation for those who have served.

If you are a servicemember or veteran who was deployed to the Southwest Asia theater of operations any time after August 2, 1990 or Afghanistan or Djibouti on or after September 11, 2001, you are eligible to participate in the VA Airborne hazards and Open Burn Pit Registry (Registry). By joining the Registry, veterans and servicemembers will assist the VA in presumptively service connecting additional illnesses. To participate in the Registry, or to find out more, visit the Secure Registry Portal at https://veteran.mobilehealth.va.gov/AHBurnPitRegistry/#page/home.

[1] Gen. John J. Pershing.

[2] Brian W. Everstine, Need for Airdrops Skyrockets in Afghanistan, Air Force Magazine (Feb. 20, 2019), https://www.airforcemag.com/need-for-airdrops-skyrockets-in-afghanistan/.

[3] Justin Kase Conder, Veterans face uphill battle to receive treatment for ‘burn pit’ exposure, NBC News (April 12, 2021), https://www.nbcnews.com/news/military/veterans-face-uphill-battle-receive-treatment-burn-pit-exposure-n1263862.

[4] Id.

[5] Id.

[6] 10 Things to Know About Burn Pits, U.S. Dept. of Vet. Affairs, available at https://www.publichealth.va.gov/docs/exposures/ten-things-to-know-fact-sheet.pdf [hereinafter 10 Things].

[7] Leo Shane III, For the first time, some burn pit victims will get presumptive status for disability benefits, Military Times (Aug. 2, 2021), https://www.militarytimes.com/veterans/2021/08/02/for-first-time-some-burn-pit-victims-will-get-presumptive-status-for-disability-benefits/.

[8] Conder, supra note 3.

[9] Paul LeBlanc, Veterans exposed to burn pits will get expanded health care support, White House says, CNN Politics (Nov. 11, 2021), https://www.cnn.com/2021/11/11/politics/military-exposure-burn-pits-biden-administration/index.html.

[10] Kirsten Hirt, What are the Dangers of Burn Pit Exposure, Hill & Ponton (Dec. 29, 2021), https://www.hillandponton.com/what-are-the-dangers-of-burn-pits/.

[11] 10 Things, supra note 6.

[12] History.com Editors, Agent Orange, History.com (Aug. 2, 2011), https://www.history.com/topics/vietnam-war/agent-orange-1.

[13] 10 Things Every Veteran Should Know About Agent Orange, VAntage Point (Mar. 10, 2015), https://blogs.va.gov/VAntage/17744/10-things-every-veteran-know-agent-orange/.

[14] Id.

[15] Sadith Viranga Panangala & Daniel D. Shedd, Cong. Research Serv., R43790, Veterans Exposed to Agent Orange, Legislative History, Litigation, and Current Issues, 1 (2014).

[16] Id.

[17] Id.

[18] Agent Orange Act of 1991, 38 U.S.C. §1116 (1991).

[19] S.RES. 1605 117th Cong. (2021) (enacted).

[20] Veterans’ Diseases Associated with Agent Orange, U.S. Dept. of Vet. Affairs, https://www.publichealth.va.gov/exposures/agentorange/conditions/.

Written by Fall 2021 M-VETS Student Advisor Chapman Good.

The DOD’s Vaccine Mandate has caused quite a stir over the past several months. This writer would like to leave the politics up to the politicians and focus on what this means for our service members across the country.

The Secretary of Defense instituted the Mandate on August 24, 2021. It applies to “all members of the Armed Forces under DoD authority on active duty or in the Ready Reserve, including the National Guard…”[1] The Mandate requires that every member of the armed forces receive a Covid-19 vaccine by a certain deadline.[2] The allowed vaccines are only those that have been approved for use by the FDA. As of November 8, 2021, that includes the Pfizer-BioNTech, Moderna, and Johnson & Johnson vaccines.[3] And, in case you are thinking that this might not apply to the United States Coast Guard because they don’t fall under the DoD, you would be correct. However, the Coast Guard issued a similar mandate on August 26, 2021.[4]

For those service members that are concerned about getting the Covid-19 vaccine there are some exemptions available. First, a medical exemption. A service member can receive a temporary (less than 365 days) or a permanent medical exemption if they meet the right criteria and can get it approved by their branch of service.[5] For temporary exemptions, a service member can essentially get a doctor’s note from a DoD medical provider.[6] If a service member’s health conditions require a permanent exemption, they will need to get that approved by a member of their branch of service (unless they are a member of the Air Force), usually by a fairly senior doctor (no less than an O-5, and more often a General Officer).[7]

There are also two categories of administrative exemptions: those for service members pending separation or retirement, and those for service members with religious objections. The exemption for pending separation or retirement can be granted by the service member’s unit commander.[8]^,[9] The religious exemption has to go a bit higher. The Army requires the Army Surgeon General to sign off; the Air Force, a major commander; the Space Force, a major commander; the Marine Corps, the Deputy Commandant for Manpower & Reserve Affairs; the Navy, the Chief of Naval Personnel. If a service member is denied, the is also an appeals process in place to a higher authority. Needless to say, with a list like that, a religious exemption may be hard to come by.[10]

But, just because the odds are long, doesn’t mean you shouldn’t try. The Marine Corps just granted two religious exemptions, out of the 3,212 it has processed as of January 13, 2022.[11] The other services have yet to grant a religious exemption, but that doesn’t mean they won’t.[12] Additionally, there are federal court cases across the country dealing with this issue. As of this writing, at least two federal judges have made rulings on the Mandate. One ordered the Navy to remove the restrictions it placed on 35 Navy Seals that are suing to seek an exemption. The other judge threw out the case of an Army Sergeant and Marine Staff Sergeant because there exists an appeals process internal to the military.[13] All that is to say that the path forward for religious exemptions may be difficult, but not insurmountable.

What happens if a service member refuses? I’m glad you asked. According to the Congressional Research Service, that service member can be subject to administrative action, non-judicial punishment, and/or court-martial. As mentioned above, if a service member’s request for exemption is denied, they can appeal to a higher authority inside the military.

[1] See Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members, August 24, 2021 at 1.

[2] The deadlines have been moved several times as the services attempt to adjust to changing circumstances.

[3] See The Military’s COVID-19 Vaccination Mandate, Congressional Research Service, November 8, 2021 at 1.

[4] Ibid at 2.

[5] Id.

[6] Ibid at 3.

[7] Id.

[8] Except for the Coast Guard, which requires an exemption granted by the Chief of Military Personnel Policy

[9] Id.

[10] Id.

[11] Marines Grant First Religious Exemptions in Military for Covid-19 vaccine mandate, Oren Libermann, January 13, 2022. Found at https://www.cnn.com/2022/01/13/politics/military-covid-vaccine-religious-exemption-marines/index.html.

[12] Several of the services have only processed a fraction of the requests they have received. Id.

[13] Judge Tosses Lawsuit Over Military Vaccination, Michael Karlik, January 16, 2022. Found at https://www.coloradopolitics.com/coronavirus/judge-tosses-lawsuit-over-military-vaccination-mandate/article_9bc73c12-7595-11ec-a3c9-df07fa828581.html.

Written by Fall 2021 M-VETS Student Advisor Zach Kobokovich.

Introduction

Imagine you are suffering from severe anxiety while serving in the military.[1] You attempt to persevere and continue serving your country, but the mental struggle wears on you constantly and makes your day-to-day existence extremely challenging. As an ill-advised means of self-medicating, you turn to marijuana to calm your nerves and end up getting a minor citation for possession.[2] This one mistake causes a cascading chain of events leading to your immediate discharge from the military, increased difficulty in finding a job, and eventual homelessness.[3] But finally, the day has come for you to seek a discharge upgrade before a discharge review board (“DRB”). You can finally explain the extenuating circumstances which led to your misconduct, receive a characterization of service more commensurate with your otherwise strong record, and regain eligibility for certain benefits that might help you back on your feet. Yet, when the crucial day of decision arrives, you receive a two- or three-page ruling filled with boilerplate language denying your discharge upgrade with a dearth of genuine analysis.[4] And to make matters worse, due to the extreme deference that courts apply when reviewing the decisions of military administrative boards,[5] that rote analysis is all but final.

This scenario comes from a recent case before the Air Force DRB. Similar cases come before the various DRBs every day. Nearly every one receives the same minimalist treatment simply due to the volume of cases that the boards must handle. As a Student Advisor in M-VETS, I read countless decisions reciting the same barebones reasoning. For example, in the vast majority of cases dealing with drug misconduct in the Air Force, the decision will almost invariably recite that the Board “found no evidence to indicate the applicant was unaware of the Air Force policy of zero tolerance for illegal drug use” and that the “negative aspects of the applicant’s willful misconduct outweighed the positive aspects of his military service.”[6] With respect to any mental health issues bearing on the misconduct, the Board will usually state that there was “no conclusive indication that any mental health issues had a direct impact on the applicant’s misconduct or discharge”[7] without elaboration or any reference to the evidence consulted to reach that conclusion.

Perhaps this is all for the best. After all, the military review boards deal with a staggering number of cases each year.[8] If each case were to be dissected and analyzed in the level of detail presumably owed to those who have served our country, then the lengthy waiting times for a decision would be exacerbated even further.[9] On the whole, churning out perfunctory decisions in a reasonably timely manner may well be preferable in the long run. Another problem arises, however, when courts charged with reviewing the actions of military administrative boards treat these decisions as practically infallible. The United States Court of Appeals for the District of Columbia Circuit, for example, has announced a standard of review of military administrative action limited only to rectifying “perhaps only the most egregious decisions.”[10] That cannot be correct. Even if the analytically deficient decisions produced by the review boards must be accepted as a necessary evil to maintain a degree of efficiency, these decisions must be subject to a more searching level of judicial review due to their shortcomings. The balance that has been struck so far is well past due for reconsideration.

The Move to No Look Review of Military Administrative Actions

By design, judicial review of administrative action is naturally slanted in the government’s favor. As a general matter, courts may only set aside or remand for further consideration agency action which is arbitrary and capricious.[11] This is a narrow, deferential standard of review which seeks only to establish “a rational connection between the facts found and the choice made.”[12] That being said, the arbitrary and capricious standard is not toothless. In fact, as stressed by the Supreme Court in Motor Vehicle Mfrs. Ass’n v. State Farm, reviewing courts must examine whether the “agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”[13]

Some courts have gone further. The D.C. Circuit, for example, pioneered the “hard look” doctrine of judicial review. Under this more stringent standard, the “function of the court is to assure that the agency has given reasoned consideration to all the material facts and issues.”[14] Even beyond that, the court must “intervene not merely in case of procedural inadequacies, or bypassing of the mandate in the legislative charter, but more broadly if the court becomes aware, especially from a combination of danger signals, that the agency has not really taken a ‘hard look’ at the salient problems, and has not genuinely engaged in reasoned decision-making.”[15] So long as the agency has taken a hard look at the material issues, however, its decision will be upheld even if it is of “less than ideal clarity.”[16]

In contrast, judicial review of military administrative decisions has become so deferential as to border on the non-existent. In Kreis v. Secretary of Air Force, the D.C. Circuit—the very same court that pioneered the hard look doctrine—found that reviewing courts may be limited to reaching only the most egregious abuses of discretion by the Boards for Correction of Military Records (“BCMRs”).[17] Kreis underpinned that conclusion by emphasizing the breadth of the statutory language, which authorizes the BCMRs to correct military records when they “consider[] it necessary to correct an error or remove an injustice.”[18] According to Kreis, this language suggests nearly unreviewable discretion because determining whether the BCMR improperly considered an action unnecessary to correct an error or injustice is very different from the BCMR being “required to act whenever a court determines that certain objective conditions are met, i.e., that there has been an error or injustice.”[19] Thus, Kreis imagined that there could well be situations where it would be unnecessary to act even in the face of “an undisputed error or to remove even a conceded injustice” such as where “an error upon which nothing turns by reason of mootness, lack of harm to the person in question, or inability by such correction to redress the harm claimed.”[20] With respect to these considerations, the BCMRs’ ad-hoc judgements would be essentially unassailable. And although this analysis is limited to the statutory mandate of the BCMRs, courts could certainly apply similar logic to the DRBs, which are instructed to “examine the propriety and equity of the applicant’s discharge and to effect changes, if necessary.”[21]

This state of affairs leaves veterans in an unenviable position when seeking a discharge upgrade. As previously mentioned, due to the massive volume of petitions they receive, the BCMRs and DRBs often issue rather cursory decisions that are filled with boilerplate language and devoid of in-depth analysis. Perhaps that is necessary for the sake of efficiency. Nonetheless, at least under the Kreis standard, the veteran is essentially bound to that decision unless he or she can demonstrate that it was egregiously arbitrary and capricious when seeking judicial review. That does not make a great deal of sense. To start, although Kreis imagines a few scenarios where action would not be necessary to correct an error or remove an injustice, it is difficult to conceive of such a situation in the discharge upgrade context. An unjust or incommensurate characterization of service cannot be moot or harmless because it perpetrates continuing harm on the veteran, who must deal with continuing stigma, increased difficulty in obtaining employment, and lack of access to certain benefits to which he or she may be entitled. That view also lines up with how the BCMRs and DRBs actually analyze these cases: by looking to whether an error or injustice (or impropriety or inequity in the case of the DRB) occurred, not whether the requested action is a necessary remedy.[22] Ultimately, the determination as to the existence of an error or injustice (or impropriety or inequity) is something that civilian courts can easily review without the need for extreme deference. A new way forward is likely needed.

Moving Forward: Save the Super Deference for When It is Needed

Although a poor fit with respect to discharge upgrades, Kreis super deference to the decisions of BCMRs may have a valid prudential basis when applied to basic personnel matters. After all, the BCMRs (though not the DRBs) handle a broad range of disputes including those relating to performance evaluations, pay and retirement benefits, discrimination, and promotions.[23] Kreis, in fact, centered on a negative Officer Effectiveness Report that had led to the claimant’s reprimand and reassignment.[24] That type of factual scenario raises a host of concerns, not because of the broad statutory grant of discretion discussed in Kreis, but because civilian courts would be entering dangerous waters by wading into the thicket of day-to-day oversight of military personnel management and discipline. As the Supreme Court discussed in Chappell v. Wallace, “[c]ivilian courts must, at the very least, hesitate long before entertaining a suit which asks the court to tamper with the established relationship between enlisted military personnel and their superior officers.”[25] If courts were to become a forum for internal grievances between active servicemembers and their superiors, the efficient functioning of the military could well be threatened. In this context, Kreis super deference is likely warranted and should limit review to only the most egregious decisions.

Discharge upgrades, however, are different and do not present the same risks of judicial micro-management. By definition, discharge upgrades, whether pursued before the BCMR or DRB, solely involve veterans who have already been separated from the military, usually years before they seek relief. In this way, they are no longer internal disputes. Nor do they involve the types of basic administrative, disciplinary, or pay-related disputes that are ill-suited to judicial review as in Kreis. Rather, discharge upgrades center around one crucial, final decision that has the potential to impact the veteran’s life for many years to come. In this context, extreme deference must give way and courts should engage in conventional arbitrary and capricious review. This standard, which is still quite deferential, best balances the need to respect military channels while also giving veterans a full opportunity to be heard considering the deficiencies of the BCMR and DRB review processes. At bottom, super deference is not needed with respect to discharge upgrades and should be applied only when truly necessary. It is time for veterans to have a fair shot when seeking judicial review of a poorly reasoned discharge upgrade decision.

Conclusion

Veterans are currently being shortchanged by the discharge upgrade system. Out of necessity, veterans face long wait times, inconsistent decisions, and cursory analysis before the DRBs and BCMRs. That is problematic enough and should not be compounded by a level of deference that is essentially impossible to overcome when seeking judicial review. Courts are perfectly capable of assessing the record, applying the relevant regulations, and holding the DRBs and BCMRs to the already-deferential arbitrary and capricious standard. For veterans to receive a fair shake, at least some bite must be restored to judicial review of discharge upgra

[1] Air Force Discharge Review Board, FD-2020-00749 (Mar. 17, 2021).

[2] Id.

[3] Id.

[4] Id.

[5] Kreis v. Sec’y of Air Force, 866 F.3d 1508, 1514-15 (D.C. Cir. 1989).

[6] Air Force Discharge Review Board, FD-2020-00749 (Mar. 17, 2021).

[7] Id.

[8] The Navy Board for Correction of Naval Records, for example, decided over 1000 cases in 2020. See CY2020, Navy Board for Correction of Naval Records, https://boards.law.af.mil/NAVY_BCNR_CY2020.htm (last visited Jan. 7, 2022).

[9] See Raymond J. Toney, Military Record Correction Boards and Their Judicial Review Program at 7, Texas State Bar Association, Jun. 11, 2010, https://www.texasbar.com/flashdrive/materials/military_law/militarylaw_toney_militaryrecord_finalarticle.pdf (estimating that the average wait time for a decision from the BCMR ranges from ten to eighteen months).

[10] Kreis, 866 F.3d at 1515.

[11] 5 U.S.C. § 706(2)(A).

[12] Motor Vehicles Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983).

[13] Id.

[14] Greater Bos. Television Corp. v. F.C.C., 444 F.2d 841, 851 (D.C. Cir. 1970).

[15] Id.

[16] Id.

[17] Kreis, 866 F.3d at 1515.

[18] 10 U.S.C. § 1552(a).

[19] Kreis, 866 F.3d at 1514.

[20] Id.

[21] 32 C.F.R. § 865.120(a) (emphasis added).

[22] See, e.g., Air Force Discharge Review Board, FD-2020-00749 (Mar. 17, 2021).

[23] Toney, Military Record Correction Boards and Their Judicial Review Program at 3.

[24] Kreis, 866 F.3d at 1509.

[25] Chappell v. Wallace, 462 U.S. 296, 300 (1983).

 

Written By Fall 2021 M-VETS Student Advisor Ty Delgado.

In June, 2019, the U.S Army introduced the Army Combat Fitness Test (ACFT), a replacement to the forty-year-old Army Physical Fitness Test (APFT). What has followed has been a slew of questions and controversies affecting current servicemembers and future veterans alike. Amid this tense transition, one of the most prominent questions asked by soldiers is “can I really be kicked out for this?” The short answer is “yes.”

The ACFT is a six-event, hour-long physical fitness test used to assess soldiers’ readiness for combat, suitability for advancement, and eligibility to remain in the Army. Under its newest version, a passing score on the ACFT requires deadlifting 140 pounds, throwing a ten-pound ball 4.5 meters, performing ten hand-release pushups in two minutes, performing a sprint-draft-carry routine in three minutes, bringing your knees to your chest while performing a pullup, and running two miles in twenty-one minutes.^[1] This compares to the old APFT, which for an average age, male soldier required thirty-nine pushups in two minutes, forty-five sit ups in two minutes, and running two miles in seventeen-minutes.^[2]

The ACFT began development in 2013 with the goal of better replicating basic tasks that a soldier should expect to perform under high-stress situations.^[3] This largely means testing a wider array of muscle groups as compared to older standards.^[4] The ACFT’s first, “1.0” version was announced in June, 2019, and was implemented in October of that year.^[5] ACFT 1.0 was the product of sixty-three army units performing test runs as part of “Phase 1” of development.^[6] The ACFT’s second version was introduced a year later and the ACFT 3.0, its current version, came out in April, 2021.^[7] Compared to earlier versions, ACFT 3.0 adds planks as an alternative test of core strength and explores using gender-based standards to assess soldiers for purposes of advancement, such as promotions and professional education opportunities.^[8]

The ACFT officially replaced the old APFT as the Army’s physical fitness test of record on October 1, 2020.^[9] However, full implementation is on hold until April, 2022, due to COVID-19 and a Congressionally-mandated study.^[10] Old APFT scores are therefore still valid until March 31, 2022, and “[n]o administrative actions . . . will be taken against a Soldier based on failing the ACFT until further guidance is published by the [Assistant Secretary of the Army].”^[11] This for now means no ACFT-based separations and no impact on promotions or benefits.^[12]

Despite its effort to improve Army fitness, the ACFT has sparked significant uproar since its inception. Many soldiers and observers argue that the old APFT, consisting of pushups, sit ups, and a two-mile run, was perfectly adequate for assessing soldier fitness.^[13] Critics also argue that the ACFT, requiring more exercises most of which are more complex than those in the APFT, takes an excessive amount of time, equipment, and planning to conduct.^[14] This in turn exhausts money and labor that could be better spent elsewhere.

Much of the controversy also centers around the ACFT’s goal of gender-neutrality. Unlike the APFT, the ACFT was designed from the outset to have both age-neutral and gender-neutral minimum requirements.^[15] This means, for example, that male and female soldiers alike would have to deadlift the same number of pounds, and run the same two-mile time, to stay in the Army. In 2021, Congress partly responded to widespread concerns by barring implementation of the ACFT until the Army conducts an independent study on the test’s viability in harsh climates and the test’s potentially adverse impact on retaining critical support personnel.^[16] Interested groups have argued for more though, with some urging for the study to also look at potentially adverse impacts on female soldiers.^[17] This urging was in light of disproportionately high fail rates for female soldiers, as shown by one study that the Service Women’s Action Network argues used an intentionally biased methodology.^[18] The Army has since partly addressed concerns over gender-neutral scoring in the ACFT’s newest, 3.0 iteration by ranking soldiers on a curve consisting only of same-gender soldiers.^[19] This curve is used only for purposes of advancement and schooling however, not for determining whether a soldier can stay in the Army.^[20] Whether a soldier is physically fit enough to be in the Army therefore remains gender-neutral.^[21]

Despite the ACFT’s ongoing controversy, what is important for soldiers to know is that the Army will still hold them to the ACFT’s new standards come April 1, 2022. Congress gives each service branch’s Secretary broad discretion in how and whether to separate service members from the regular armed forces.^[22] Administrative separations in the Army are governed by AR 635-200,^[23] with Chapter 13 being the authority under which soldiers can be administratively separated from the Army due to unsatisfactory physical fitness.^[24] Before determining that an administrative separation is appropriate however, unit commanders must make maximum use of counseling and rehabilitative measures.^[25] This is especially true for soldiers in their first enlistment.^[26] Before separation, a soldier’s leadership must conduct at least one written counseling then allow the soldier a reasonable opportunity to overcome and correct their deficiency.^[27] This presumably means transferring the soldier to another unit for at least three months before initiating a separation proceeding.^[28]

A separation proceeding begins when a soldier is notified by their commander in writing that the commander has recommended the soldier’s separation to a separation authority.^[29] A separation authority is a person who can order a soldier’s administrative separation from the Army. These people are generally the soldier’s brigade-level command and higher.^[30] A separation proceeding itself should normally take no more than fifteen to fifty working days, depending on whether the separation is by notice or reviewed by a separation board.^[31] Soldiers who have served for at least six years are entitled to review by such a board.^[32]

A separation from the Army due to ACFT-related changes can limit the soldier’s post-service benefits. Generally, “[a]n honorable discharge entitles a Soldier to full Federal rights and benefits provided by law.”^[33] However, “[t]he service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions,” also known as a “general” discharge.^[34] The Department of Veterans Affairs (VA) can usually afford disability benefits to soldiers subject to a general discharge.^[35] Post-service education benefits, namely the post-9/11 G.I. Bill, requires an “honorable” characterization however.^[36]

Overall, much has changed in the past few years with regard to the Army’s physical fitness standards, with more changes likely to follow.^[37] What is important to know though is that regardless of what changes occur, every soldier can and will be expected to adapt to those changes, as service members across all branches have done throughout history.

^[1] ACFT Scoring Standards, https://www.armycombatfitnesstest.com/scoringstandards; see also ACFT Overview, https://www.youtube.com/watch?v=vfTGBHYCtws (visual demonstration).

^[2] See Army Regulation (AR) 350-1, para. F–5.j (10 Dec. 2017); APFT Male Standards, https://usarmybasic.com/army-physical-fitness/apft-standards; see also Army Field Manual (FM) 7-22 (Oct. 2012), https://www.atu.edu/rotc/docs/aprt_7-22.pdf.

^[3] See FM 7-22, para. 4-3 (01 Oct. 2020); see also Miranda Lowe, The History of Army Physical Fitness (March 28, 2019), https://www.nytimes.com/2019/03/28/ma
gazine/army-physical-fitness-test.html.

^[4] See FM 7-22, para. 4-4 (01 Oct. 2020) (“The Army Physical Fitness Test assessed only two of the five domains of combat physical fitness, aerobic endurance and muscular endurance”).

^[5] Thomas Brading, New changes to ACFT being rolled out to impact all Soldiers (September 27, 2019), https://www.army.mil/article/227494?st.

^[6] Id.

^[7] Center for Initial Military Training, Stand-To! ACFT 3.0 (March 23, 2021), https://www.army.mil/standto/archive/2021/03/23/.

^[8] Id.

^[9] Army Directive 2020-06, para. 4.a (12 June 2020), https://www.army.mil/e2/download
s/rv7/acft/army_directive_2020_06_acft.pdf.

^[10] See id. at para. 4.c; National Defense Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283, § 598 (2021).

^[11] Army Directive 2020-06, para. 4.c-d (12 June 2020).

^[12] Id.

^[13] E.g. David Brown, Army Combat Fitness Disaster: Units Refusing to Take Test, Medics Bailing (March 31, 2021), https://news.clearancejobs.com/2021/03/31/army-com
bat-fitness-disaster-units-refusing-to-take-test-medics-bailing/.

^[14] Id.

^[15] Associated Press, A look at the U.S. Army’s new physical fitness test (February 7, 2019), https://www.marketwatch.com/story/the-army-said-its-soldiers-werent-fit-enough
-so-it-designed-a-test-to-change-that-2019-02-07; Matthew Cox, Army Leaders Say ACFT 3.0 Remains Gender-Neutral, Despite Gender-Specific Evaluation Categories (March 22, 2021), https://www.military.com/daily-news/2021/03/22/army-leaders-say-ac
ft-30-remains-gender-neutral-despite-gender-specific-evaluation-categories.html.

^[16] National Defense Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283, § 598 (2021).

^[17] SWAN Urges Congress to Halt Implementation of Army Combat Fitness Test (ACFT) (November 16, 2020), https://www.servicewomen.org/swan-updates/swan-urges-halt-of
-acft/.

^[18] Id.

^[19] Matthew Cox, Army Leaders Say ACFT 3.0 Remains Gender-Neutral, Despite Gender-Specific Evaluation Categories (March 22, 2021).

^[20] Id.

^[21] Id.

^[22] 10 U.S.C. § 1169(1); AR 635-200, 1–6.f (28 Jun. 2021).

^[23] See also Department of Defense, Instruction 1332.14 (27 Jan. 2014) (DoD-wide enlisted separation requirements); Department of Defense, Instruction 1332.30 (11 May 2018) (officer separation requirements).

^[24] AR 635-200, para. 13–2.c (28 Jun. 2021) (“Commanders will initiate separation for unsatisfactory performance when the Soldier fails two consecutive record APFTs under AR 350–1 [para. 3–13]”). Note that both AR 635-200 and AR 350-1 have yet to be updated to reflect new ACFT requirements.

^[25] Id. at paras. 1–16, 1–17, and 13–4.

^[26] See id. at paras. 1–16.b (noting that “[a] substantial investment is made in training [enlisted] persons . . . .”) and para. 1–17.a (“Effective leadership is particularly important in the case of Soldiers serving their initial enlistments”).

^[27] Id. at para. 1–17.b.

^[28] Id. at para. 1–17.c(2).

^[29] Id. at para. 2–2; see also para. 13–5.

^[30] See id. at para. 1–20.a, c (granting separation authority to general and special court-martial convening authorities); Uniform Code of Military Justice (UCMJ), arts. 22-23 (10 U.S.C. §§ 822-23).

^[31] AR 635-200, para. 1–8 (28 Jun. 2021).

^[32] Id. at para. 2–2.c(4).

^[33] Id. at para. 3–6.a.

^[34] Id. at para. 13–8.

^[35] See 38 C.F.R. §§ 3.4(a), 3.12 (interpreted as requiring a general discharge or above to receive disability benefits).

^[36] See 38 U.S.C. § 3311(c); 38 C.F.R. § 21.9520(a).

^[37] See Kyle Rempfer, ‘Too early to know’ how mandated studies will impact ACFT implementation (January 7, 2021), https://www.armytimes.com/news/your-army/2021/01
/07/too-early-to-know-how-mandated-studies-will-impact-acft-implementation/.

Written By Summer 2021 M-VETS Student Advisor Mike Smiley

Summary

Military retirees and current Servicemembers ought to be aware of the military pension system that is applicable to their circumstance and the implications it can have on their financial wellbeing. The system of service member pensions is periodically revised, most recently and radically, as of January 1^st, 2018, the Department of Defense has fully implemented the Blended Retirement System (BRS). This system modifies portions of the previous defined benefit plan and allows for matching contributions for the servicemember through matching contributions to the Servicemembers Thrift Savings Plan (TSP). Perhaps most impactful, it opens the doors to service members being able to develop a retirement nest egg even if they do not have the intention of serving a 20+ year military career. However, this added benefit also adds responsibility on the Servicemember who must take responsibility to participate in the program as they best see fit. Servicemembers participating in the BRS and any servicemember receiving retirement benefits should ensure that they are adequately educated on its impact on their retirement posture and planning.

Background

Throughout the history of the military, there has been some type of pension available for servicemembers meeting eligibility criteria. As far back as the Revolutionary War, a Servicemembers pension was implemented to encourage enlistment and prevent desertion amongst the ranks.[i] The concept of the 20 year military pension became standard around World War II and has remained a key component to military retirement eligibility to date.[ii] Currently, there are four different pension systems applicable to servicemembers based on their entry date of service: the Final Pay system; the High-3 system; the Career Status Bonus (CSB) or “Redux” system; and the current BRS.[iii]

1) Servicemembers who joined the military prior to September 8^th, 1980, fall under the Final Pay system. Under this program a Servicemember that has accrued more than 20 years of applicable service is eligible for retirement pay equal to their final pay times a multiplier of 2.5 percent times their years of service. To protect the purchasing power of the retiree, the final pay system incorporates an adjustment annually by the percentage increase in the average Consumer Price Index (CPI).[iv]

2) Servicemembers who joined on or after September 8^th, 1980 (but before implementation of the BRS) with 20 years of creditable military service have their final pay calculated by an average of their final three years of service, this is referred to as the High-3 System. This 36-month average still utilizes a 2.5 percent multiplier times the years accrued by the Servicemember and continues to use the CPI for an annual Cost of Living Adjustment (COLA).[v]

3) The CSB/Redux system was designed to provide incentive for service members on the fence about completing a 20-year military career to stay by providing an up-front payment with a reduction to their subsequent pension. A Servicemember who joined on or after August 1^st, 1986, who also had 15 years of service before December 31^st, 2017 (the start of the BRS) could opt for the CSB instead of the High-3 system. The system provided a $30,000 bonus at the Servicemembers 15^th year of service but subject to a multiplier penalty if the servicemember retired with less than 30 years of service. This penalty (if enforced) is removed when the servicemember reaches age 62 and is then recomputed according to the high-3 system. Additionally, the COLA adjustment for those who elected the CSB is the CPI minus 1 percent except when CPI is less than a percent. Again, this CPI adjustment is converted back to the standard high-3 system when the Servicemember reaches the age of 62.[vi] This program ended on December 31, 2017.[vii]

4) Blended Retirement System (BRS): All Servicemembers who joined the military after December 31^st, 2017, are automatically enrolled in the BRS.[viii] Additionally, Servicemembers with less than 12 years of service prior to December 31^st, 2017, had the option to opt into the BRS if they did so by election in calendar year 2018 (without opting in Servicemembers remain on a High-3 system). The BRS combines components of the defined benefits programs with components more typical to a civilian employer-sponsored retirement program with matching contributions from the employer.[ix]

The Blended Retirement System

The Fiscal Year 2016 National Defense Authorization Act introduced the BRS and made it official beginning January 1^st, 2018 and consists of three distinct components: a matching thrift savings plan (think traditional 401k), a career continuation bonus, and a pension.[x]

The Thrift Savings Plan or “TSP” is a defined contribution plan for federal employees to include Servicemembers. Servicemembers in the BRS will start with a default contribution of 3% of their base pay[xi] and after 60 days will automatically receive a 1% contribution from the Department of Defense. After two years, the service member will receive matching contributions up to 5% of their base pay as follows:

• A 1 percent contribution from the Department of Defense automatically;
• A 1 percent matching contribution for the first 3 percent of the Servicemembers base pay;
• An additional .5 percent matching contribution for each additional 1 percent of the Servicemembers contribution.[xii]

This means that after two years a Servicemember can receive up to 5 percent matching contributions from the DoD in their TSP by investing 5 percent of their base pay into the program. All matching contributions become fully vested after completion of two years of service.[xiii]

The career continuation bonus looks and acts a lot like a reenlistment bonus but will occur between 8 and 12 years of service and is not actually affected by or limited by any reenlistment bonus that may exist.[xiv] Each service will implement different guidelines for the bonus but to be eligible the Servicemember must sign up for at least an additional 3 years (service dependent). The amount of the bonus will be determined based on the individual services needs and will range between 2.5 and 13 percent of the Servicemember’s base pay.

The first two benefits are at the expense of the defined benefit or pension program. The change is in the multiplier for years of service. The standard 20-year vesting period for the defined benefit remains, but the multiplier for years of service is reduced from 2.5 percent to 2 percent. In other words, the standard thought process of a 50 percent retirement at 20 years (2.5 x 20) is now replaced with a 40% defined benefit plus whatever value the servicemember has accumulated through the TSP and continuation of service bonus.[xv]

Why Change the Retirement System?

There are several reasons why the Government opted for an updated retirement system. First, as has been the case in most of corporate America, the traditional pension system had proved to be a high financial burden on the Government. Converting portions of the retirement system to a contribution system is likely a cost savings for the Government. Second, the “all or nothing” aspect of the previous military pension program meant that around 17 percent of military veterans received the benefit of a military retirement while the remaining 83 percent based solely on time in service were ineligible for any military retirement benefits.[xvi] Third, by introducing a retirement benefit available to all Servicemembers regardless of years of service, there is a potential to leverage retirement savings as a useful recruiting tool to Servicemembers not interested in committing to 20+ years of service. This combination of lower costs and an expansion of who may benefit from a military retirement incentive made the conversion largely amicable for Congress and the DoD.

Conclusion

When a Servicemember joined the service and how long they served will have a profound impact on what type of retirement program is relevant to that individual. As good as the BRS may be for the vast majority of Servicemembers (particularly those who likely would not have otherwise been eligible for any retirement compensation), it is also inherently more complex than its predecessors. Understanding this system and how to participate in it is vital to those currently joining or contemplating joining the service. There are several resources to help servicemembers understand this benefit and a great place to start is with the education program the Department of Defense has created to help encourage Servicemembers to both understand their employer funded contribution plan (TSP) and feel confident in the investment decisions they are making. For Servicemembers looking to start their education on managing their BRS, please reference the Department of Defense’s website: https://militarypay.defense.gov/blendedretirement/ and look at its litany of training options

[i] See Waite, Edward F., “Veteran’s Pensions: The Law and Its Administration From the Revolutionary War to the Civil War”, VCU Libraries Social Welfare Project presenting An Article from Harper’s new monthly magazine (Volume 86, Issue 512, January, 1893) found at: https://socialwelfare.library.vcu.edu/social-security/veterans-pensions-early-history/

[ii] Hudson, Rex, “A SUMMARY OF MAJOR MILITARY RETIREMENT REFORM PROPOSALS, 1976–2006” (page 1) Federal Research Division, Library of Congress, November 2007. Found at: Library of Congresshttps://www.loc.gov/rr/frd/pdf-files/CNGR_Summary-Military-Retirement.pdf

[iii] In addition to the retirement programs mentioned above, in certain circumstances, or when allowed by congress, Servicemembers may also qualify for retirement payments when either medically retired or when Temporary Early Retirement Authorization is enacted. These programs when applicable will provide retirement pay relative to the associated program based on date of service but have varying requirements for time in service. For additional information on TERA reference: https://www.dfas.mil/RetiredMilitary/plan/retirement-types/tera/. For additional information on medical retirement pay reference: https://www.dfas.mil/retiredmilitary/disability/disability/

[iv] DOD OFFICE OF THE ACTUARY, July 2018, “Statistical Report on the Military Retirement System” (pages 6-8). Found at: https://actuary.defense.gov/Portals/15/Documents/MRS_StatRpt_2017%20v4.pdf

[v] Id.

[vi] Id.

[vii] National Defense Authorization Act for FY 2016 (NDAA 2016, P.L. 114-92)

[viii] See Id.

[ix] DOD OFFICE OF THE ACTUARY, July 2018, “Statistical Report on the Military Retirement System” (pages 6-8). Found at: https://actuary.defense.gov/Portals/15/Documents/MRS_StatRpt_2017%20v4.pdf

[x] National Defense Authorization Act for FY 2016 (NDAA 2016, P.L. 114-92)

[xi] Military members will have multiple forms of compensation to include but not limited to Basic Allowance for Housing (BAH), Basic Allowance for Subsistence (BAS), and Cost of Living Adjustments (COLA) all of which are not subject to calculation for retirement benefits or defined contribution plans in the BRS.

[xii] Guina, Ryan, “Blended Retirement System (BRS) – Everything You Need to Know About the New Military Retirement Plan”. October 16, 2018. Found at: https://themilitarywallet.com/blended-retirement-system-brs/

[xiii] Id.

[xiv] Id.

[xv] Id.

[xvi]Military One Source, “Frequently Asked Questions Regarding the Blended Retirement System”. Found at: https://www.militaryonesource.mil/financial-legal/personal-finance/retirement-planning/frequently-asked-questions-regarding-the-new-blended-retirement-system/

Written By Summer 2021 M-VETS Student Advisor Megan Huppee.

Introduction – What is Supported Decision-Making?

Supported Decision-Making (“SDM”) is an informal or formal way individuals can have trustworthy people help them make decisions. SDM has evolved as one alternative to guardianship.[1] Guardianship is the legal process in which a court determines when a person can no longer make his/her own decisions about his/her person or property.[2] Under a guardianship, certain rights are taken away and exercised by another person.[3] For example, a guardian may decide where an individual can live, what medical treatment he/she receives, with whom that individual associates with, and more.[4] In contrast, SDM allows individuals to make their own choices with the level of support they need and allows individuals to choose a person or people they know to be a part of their support team.

SDM Agreements

SDM agreements are a way to formally document SDM arrangements in writing.[5] An SDM agreement identifies the person or persons who will support an individual with his/her decisions.[6] Agreements may include the roles of the supporters and details about the scope of their assistance, authority, and duties. SDM agreements also outline which information a supporter will have access to.[7] However, not all SDM agreements are the same, and SDM may be used informally or formally.[8] While SDM agreements do not require a written agreement per se, individuals can formalize SDM through an SDM agreement.

While there are different ways to recognize SDM agreements, SDM always (1) recognizes that individuals have the right to make their own decisions; (2) acknowledges individuals enter into SDM agreements without relinquishing the right to make decisions; and (3) accepts that some individuals may need assistance with understanding information to make certain decisions.[9]

States Recognizing SDM Agreements

Only a few states recognize SDM agreements in their state laws. Other states continue to consider codifying SDM agreements or incorporating SDM into other laws without codifying an SDM agreement form.[10] For example, some states specifically require courts to consider and rule out SDM agreements before appointing a guardian.[11] In 2015, Texas became the first state to recognize SDM agreements.[12] Texas defines SDM as “a process of supporting and accommodating an adult with a disability to enable the adult to make life decisions.”[13]

A supporter may never make decisions for the principal decision-maker. Further, some states specify who supporters may not be, while other states do not codify such limitations. Some states prohibit supporters from being a person that provides paid support services unless they are an immediate family member to the principal.[14] Supporters in Alaska may not be an employer or employee of the principal, or someone whom the principal has a protective order or restraining order against.[15] The District of Columbia specifies in more detail who may not be a supporter, but is generally similar to other restrictions.[16] While restrictions and safeguards on who may be a supporter are meant to protect an individual, SDM legislation may also prevent an individual from choosing a supporter he/she prefers or trusts.

State SDM legislation place other safeguards that allow the agreement to be terminated when necessary. For example, in Wisconsin, the agreement is terminated if the supporter is responsible for neglect or abuse or if the supporter has a restraining order against them.[17] Indiana, North Dakota, Texas, Louisiana, and Wisconsin have similar termination triggers.[18]

Most states provide a form for an SDM agreement.[19] In contrast, Indiana does not have a template form but requires certain information to be included in the agreement to be presumed valid.[20] Some states require the agreement to be substantially similar to the codified or administrative form while other states allow more flexibility.[21]

Included in some state SDM forms are additional safeguards against abuse. Some states do not require third parties to honor the agreements if they suspect the supporter is abusing or neglecting the decision-maker. Further, in Texas the SDM agreement form provides a warning statement for third-parties to contact protective service agencies if they suspect a principal is being exploited or abused by their supporter.[22] Similarly, on D.C.’s form, the supporter must affirm he/she will not abuse, neglect, or exploit the principal.[23] Both Texas and D.C. provide contact information for protective services.[24] One caveat of the current safeguards for SDM is there is no ongoing oversight. Unlike guardianship proceedings, SDM agreements are designed to be extra-judicial. Further, third parties accepting the SDM agreement have no significant way of learning about a supporter’s background or treatment.

Recent Virginia SDM Agreement Legislation

In April 2020, Virginia enacted a bill that requires the Department of Health and Developmental Services to assemble stakeholders and study SDM agreements in Virginia. The Department’s research would include recommendations for the use of SDM agreements as a less restrictive alternative to guardianship.[25]

In March 2021, Virginia enacted a bill that directed the Virginia Department of Behavioral Health and Developmental Services to develop and implement a program to educate individuals with intellectual and developmental disabilities and others regarding the availability of SDM agreements and the rights and responsibilities of principals and supporters.[26] Virginia defines an SDM agreement as an agreement that includes the supporter: (1) helping the principal monitor and manage medical, financial, and other affairs; (2) assisting the principal in accessing, obtaining, and understanding information relevant to decision-making; (3) assisting the principal in understanding information, options, responsibilities, and consequences of decisions; and (4) ascertaining the decisions of the principal regarding affairs, assisting in communicating such decisions to other persons, and advocating to ensure the decisions of the principal are implemented.[27]

The Virginia Department of Behavioral Health and Developmental Services’ new program for SDM will include specific training for certain individuals involved in SDM agreements and the development of a model SDM agreement. The bill also requires the Virginia Department of Behavioral Health and Developmental Services to implement safeguards and protocols for addressing abuse and exploitation.[28]

Future Trends in SDM Legislation

While SDM is recognized and codified in many states for individuals with intellectual and other developmental disabilities, it is not limited to any specific disability or diagnosis. SDM also works for older adults with dementia and age-related cognitive decline. Older Veterans may fall into the latter category and may potentially benefit from SDM. Individuals should continue to advocate for states to adopt SDM agreement legislation. However, SDM agreement legislation is not required for SDM to be formally recognized in a state, as evidenced by state courts recognizing SDM. While SDM agreement legislation is not necessary to recognize SDM, legislation is important for advancing recognition of individuals’ power to make decisions. Legislation incorporates certain safeguards to protect principals from being abused or unduly influenced by supporters.

[1] Other alternatives to guardianship include advance directives such as a health care power of attorney, living will or durable power of attorney. Supported Decision-Making, The Arc of Virginia, https://www.thearcofva.org/supported-decision-making.

[2] Id.

[3] Jonathan G. Martinis, Supported Decision-Making: Protecting Rights, Ensuring Choices, 36 Bifocal 107, 108-09 (2015).

[4] National Guardianship Association, Position Statement on Guardianship, Surrogate Decision-Making, and Supported Decision-Making (2016), https://www.guardianship.org/wp-content/uploads/2018/09/SupportedDecision _Making_PositionStatement.pdf.

[5] See Zachary Allen & Dari Pogach, More States Pass Supported Decision-Making Agreement Laws, Bifocal, Vol. 41, Issue 1, (Oct. 1, 2019), https://www.americanbar.org/groups/law_aging/publications/bifocal/vol-41/volume-41-issue-1/where-states-stand-on-supported-decision-making/#:~:text=Supported%20decision%2Dmaking%20is%20often,members%2C%20professonals%2C%20and%20others.

[6] Id.

[7] Id.

[8] Jonathan G. Martinis, Supported Decision-Making: Protecting Rights, Ensuring Choices, 36 Bifocal 107, 109 (2015).

[9] Id. at 109-10.

[10] Some states formally recognize SDM in organ transplantation. See, e.g., S. 792, 435th Gen. Assem., Reg. Sess. (Md. 2015); H.B. 21, 149th Gen. Assem., 1st Year (Del. 2017); H.B. 2343, 87th Leg., Reg. Sess. (Kan. 2017); H.B. 332, 132nd Gen. Assem., Reg. Sess. (Ohio 2017); H.B. 143, 2019 Reg. Leg. Sess. (La. 2019); S.B. 257, 84th Leg., 2nd Reg. Sess. (W.Va. 2020); H.B. 1273, Va. 2020 Sess. (Va. 2020) (Prohibiting discrimination against people based on certain disabilities in the medical context of organ transplantation and identifies SDM services as auxiliary aids and services).

[11] See S.F. 3357, 91st Leg., Reg. Sess. (Minn. 2020); S.B. 806, 99th Gen. Assem., 2nd Reg. Sess. (Mo. 2018); see e.g., Matter of Guardianship of Capurso., 98 N.Y.S.3d 381, 384 (N.Y. Sur. Ct., Westchester Cty. 2019) (granting petition to terminate guardianship in favor of SDM); Matter of Eli T., 89 N.Y.S.3d 844, 849 (N.Y. Sur. Ct., Kings Cty. 2018) (denying petition for appointment of co-guardians in part because SDM was an available option).

[12] Tex. Est. Code Ann. § 1357.002 (West 2017).

[13] Id.

[14] See Alaska Stat. § 13.56.020 (2018); Del. Code Ann. tit. 16 § 9406.

[15] Alaska Stat. § 13.56.020 (2018). See also Del. Code Ann. tit. 16 § 9406; 33 R.I. Gen. Laws § 33-15.3-6(b) (2019).

[16] D.C. Code § 7–2132. D.C. was one of the first to specifically set forth certain crimes that make a person ineligible to be a supporter.

[17] Wis. Stat. Ann. § 52.14(2).

[18] See Ind. Code Ann. § 29-3-14-9 (West 2019); N.D. Cent. Code § 30.2-36.01 (2019); Tex. Est. Code Ann. § 1357.053 (West 2017); Wis. Stat. Ann. § 52.01(6) (2019).

[19] See e.g., Tex. Est. Code Ann. § 1357.056.

[20] Ind. Code Ann. §§ 29-3-14-7(a), 29-3-14-10.

[21] See e.g., Alaska Stat. § 13.56.180 (2018) (stating form must be “substantially similar”); Nev. Rev. Stat. § 162C.200 (listing required elements for a legal agreement rather than a form).

[22] Tex. Est. Code Ann. § 1357.056.

[23] D.C. Code § 7–2132.

[24] D.C. Code § 7–2132; Tex. Est. Code Ann. § 1357.056.

[25] S.B. 585, Va. 2020 Sess. (Va. 2020). Following the first Virginia court order to recognize SDM as an alternative to permanent guardianship, Virginia first ordered a study of SDM within the context of developmental disabilities in 2014. H.R.J. Res. 190, 2014 Leg., Reg. Sess. (Va. 2014) (Requesting the Secretary of Health and Human Resources to examine the use of SDM).

[26] H.B. 2230, Va. 2020 Sess. (Va. 2021).

[27] Id.

[28] Id.

 

Written By Summer 2021 M-VETS Student Advisor David Zhang.

This blog post is not intended to provide, and should not be relied on for, tax, legal or accounting advice. You should consult your own tax, legal and accounting advisors before engaging in any transaction.

Military members and their families have life events that may affect their tax situation. This blog post discusses some of the tax law issues active and reserve military personnel may encounter.  Specifically, the post aims to explain federal tax benefits related to combat pay and sale of home, under IRC §§112 and 121, respectively.

• What Is Income:

Since these tax breaks either allow taxpayers to exclude or deduct certain items from gross income, the blog post first discusses gross income. The Sixteenth Amendment to the United States Constitution gives Congress the power “to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states and without regard to any census or enumeration” (emphasis added). Similarly, Section 61 of the Internal Revenue Code (IRC) provides:

Except as otherwise provided in this subtitle, gross income means all income from whatever source derived… (emphasis added).

This Section then provides a non-exclusive list of gross income items. Apparently, in defining gross income as “all income from whatever source derived,” Congress states its intention to exercise the full measure of the power granted to it by the Sixteenth Amendment. See Glenshaw Glass Co., 348 U.S. 426 (1955).

• What is Not Income:

After briefly discussing what is income, the blog post moves on to a much more interesting topic—what is not income. Despite that Congress has the power to tax “incomes from whatever source derived,” in some situations, Congress excludes what may otherwise be accessions to wealth that are clearly within the scope of IRC § 61. The Internal Revenue Code has a series of sections providing such exclusions. Here, the post provides two examples of exclusions that may be available to active and reserve military members.      

1. Combat Zone Tax Exclusions:

First, under IRC § 112, a member of the United States Armed Forces who served in a combat zone can exclude income from taxation. IRC § 112(a) provides that gross income does not include “compensation received for active service” as a member below the grade of commissioned officer in the Armed Forces of the United States for any month during any part of which the member “served in a combat zone.” IRC § 112(b) provides that “gross income does not include so much of the compensation as does not exceed the maximum enlisted amount received for active service as commissioned officer in the Armed Forces of the United States” for any part of which the member “served in a combat zone.” For the purposes of this Section, the term “commissioned officer” does not include a commissioned warrant officer. Id.

In addition, IRC § 112(c)(2) provides that the term “combat zone” means any area which the President of the United States by Executive order designates for purposes of this section as an area in which Armed Forces of the United States are or have engaged in combat. Executive Order 12744 designates the following locations (including airspace above) as combat zone:

Arabian Sea (North of 10 degrees North Latitude and West of 68 degrees East Longitude); Bahrain, Gulf of Aden; Gulf of Oman; Persian Gulf; Iraq; Kuwait; Qatar; Oman; Red Sea; Saudi Arabia; and United Arab Emirate.

Executive Order 13119 designates the following locations (including airspace above) as combat zone:

Albania; The Adriatic Sea; The Federal Republic of Yugoslavia (Serbia/Montenegro); and The Ionian Sea north of the 39^th parallel.

Further, Executive Order 13239 designates Afghanistan as combat zone. Under the 2017 Tax Cuts and Jobs Act (TCJA), military members who performed services in the Sinai Peninsula can also claim combat zone tax benefits. In addition to these locations, the Department of Defense (DoD) also certified several other countries for combat zone tax benefits due to their direct support of military operations in combat zones.

In short, under IRC § 112, enlisted members and commissioned warrant officers can exclude all military pay for each month present in a combat zone while commissioned officers are limited to the highest rate of enlisted pay for each month present in any of the combat zones mentioned above.

• Capital Gain Exclusion from Sale of Principal Residence:

Second, IRC § 121 excludes the recognized gain on the sale of a taxpayer’s principal residence in an amount not to exceed $250,000 or $500,000 for joint returns. This exclusion—one of the most widely used tax breaks in the Code—is even more favorable to military members and spouses because the Section gives them the ability to take advantage of the exclusion for longer periods of time. In addition, the exclusion is especially important to military families since they often sell their houses in permanent change of station (PCS) moves.

This exclusion is available to a taxpayer once every two years, but the taxpayer must have used the property as a principal residence for a total of two years during the prior five-year period ending on the date of the disposition. IRC § 121(a). For a military member, the running of the five-year period is suspended during any period that the military member is serving on qualified official extended duty. IRC § 121(d)(9)(A). However, the five-year period cannot be extended more than 10 years. IRC § 121(d)(9)(B). For the purposes of this Section, an individual is on qualified official extended duty if for more than 90 days or for an indefinite period, the individual is either (1) at a duty station that is at least 50 miles from his or her main home, (2) or residing under government orders in government housing. IRC § 121(d)(9)(C).

To summarize, if a taxpayer makes a profit in the sale of his or her home, the taxpayer can generally avoid paying capital gains taxes on up to $250,000 of that profit, or $500,000 if married filing jointly, as long as the taxpayer has lived in that home for at least two of the last five years. IRC § 121. If the taxpayer is a military member on “qualified extended duty,” the five-year-period can be suspended (but a suspension period cannot be more than 10 years). IRC § 121(d).

 

 

 

Written By Spring 2021 M-VETS Student Advisor Anne Cotter.

On April 7, 2021, the Department of Defense (“DoD”) announced that it had formed the Discharge Appeal Review Board (“DARB”).[1] The DoD established the DARB pursuant to 10 U.S.C. § 1553a to conduct a final review of a veteran’s request for a discharge upgrade. The DARB gives veterans, who were separated on or after December 20, 2019 and have exhausted all available appeals, a final opportunity to upgrade their discharges.[2]

Prior to applying to the DARB, eligible veterans must go through the standard discharge upgrade process. First, a veteran must apply to the Discharge Review Boards (“DRBs”) of his or her respective branch of service within fifteen years of discharge.[3] The DRBs have jurisdiction to review and modify discharge characterizations and narrative reasons if there is evidence of impropriety or inequity.[4] After filing a motion or request for review, a veteran has two options on how to proceed.[5] A veteran may request a record review, or the veteran may request a hearing where he or she may personally appear with or without counsel, or counsel may appear in the veteran’s place.[6] If a veteran selects a record review and the DRB denies the discharge upgrade, the veteran may request a personal appearance; however, the veteran may not request a record review after personally appearing.[7]

If a veteran is unsuccessful before the DRB, the veteran may appeal the decision to the Boards for Corrections of Military or Naval Records (“BCM/NRs”).[8] BCM/NRs have the authority to upgrade discharge characterizations and change any reason for a discharge on the basis of error or injustice.[9] A veteran appealing from a DRB must apply to the BCM/NR within three years of the DRB’s decision.[10] Additionally, a veteran who is outside the fifteen-year window to apply to the DRB may apply directly to the BCM/NR.[11] A veteran must apply to the BCM/NR within three years of discovering an error or injustice that caused his or her discharge.[12] The three-year window begins when the veteran has actual knowledge of the error or injustice.[13] The BCM/NR may waive the three-year time limit in the interest of justice.[14] Unlike the DRBs, the BCM/NRs rarely grant personal appearances. If the BCM/NR denies a veteran’s discharge upgrade, the veteran may submit a request for reconsideration. The Army BCMR has a one year time limit for reconsideration,[15] but other branches do not specify if there is a time limit.[16] Generally, if the veteran submits new evidence that was not previously reviewed by the BCM/NR, the BCM/NR will reconsider the decision.[17] If the BCM/NR declines to reconsider or denies the second claim, the veteran may appeal the decision in federal court under the Administrative Procedure Act within six years of the BCM/NR’s decision.[18]

Now, the DARB allows a veteran another administrative opportunity for review before filing in federal court. Additionally, a deceased or incapacitated veteran’s next of kin may appeal on behalf of the veteran before the DARB.[19] The DARB only reviews documents and there are no provisions for personal appearances.[20] The DARB also only reviews records previously reviewed by the BCM/NR, so a veteran looking to present new evidence must first request that the BCM/NR reconsider the veteran’s application and receive a decision from the BCM/NR before going to the DARB.[21] Lastly, the DARB may consider any request for review filed more than 365 days after the BCM/NR decision untimely and deny it on that basis.[22]

The Air Force is tasked with executing and operating the DARB process for all military branches.[23] The DARB has not issued any public decisions yet, but it presents a promising final opportunity for veterans unfairly discharged. This is especially true for veterans suffering from Post-Traumatic Stress Order (“PTSD”) or other conditions that may warrant special consideration before the DRBs and BCM/NRs. Specifically, the Hagel and Kurta Memos instruct DRBs and BCM/NRs to give “liberal consideration” to “veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD [Post-Traumatic Stress Disorder]; TBI [Traumatic Brain Injury]; sexual assault; or sexual harassment.”[24] Additionally, the Wilkie Memo emphasizes fundamental fairness and instructs the DRBs and BCM/NRs to consider numerous factors, including PTSD and other mental health conditions.[25] Thus, the additional guidance to DRBs and BCM/NRs provided in these memos may warrant granting a veteran’s request for a discharge upgrade. Veterans seeking relief now have another opportunity with the DARB for review of mitigating factors related to their discharge. While the DARB will not review any new evidence, the complexity of issues involved in some veterans’ discharge upgrade requests warrants additional consideration if denied by the BCM/NRs. Time will tell how the DARB benefits veterans, but it provides additional hope for veterans unfairly discharged and seeking relief.

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

[2] Id.

[3] 10 U.S.C § 1553(a).

[4] Id.

[5] 32 C.F.R. § 865.109(b).

[6] 32 C.F.R. § 865.109(k).

[7] Id.

[8] 10 U.S.C. § 1552.

[9] Id.

[10] Id.

[11] Id. at §§ 1553(a) & 1552.

[12] Id. at § 1552(b).

[13] See Ridgely v. Marsh, 866 F.2d 1526, 1529 (D.C. Cir. 1989).

[14] 10 U.S.C. § 1552(b).

[15] Army Review Boards Agency, Applicant’s Guide to Applying to the Army Board for Correction of 

Military Records 13 (2008), available at https://arba.army.pentagon.mil/abcmr-overview.cfm.

[16] See 32 C.F.R. § 723.9; Lipsman v. Secretary of the Army, 335 F, Supp.2d 48 (D.D.C. 2004); Board for Correction of Naval Records, Key Information for Applicants, https://www.secnav.navy.mil.

[17] Id.

[18] 28 U.S.C. § 2401.

[19] 10 U.S.C. § 1553a.

[20] Id.

[21] Id.

[22] Air Force Review Boards Agency, Department of Defense (DoD) Discharge Appeal Review Board (DARB), https://afrba-portal.cce.af.mil/#board-info/darb/navbar.

[23] United States Department of Defense, supra note 1.

[24] Memorandum from Chuck Hagel, Sec’t of Def. to Secretaries of the Military Dep’ts, (Sept. 3, 2014), https://www.secnav.navy.mil/mra/bcnr/Documents/HagelMemo.prf; A.M. Kurta, Acting under Sec’y of Def. for Personnel and Readiness, to Secretaries of the Military Dep’ts, (Aug. 25, 2017), https://dod.defense.gov/Portals/1/Documents/pubs/Clarifying-Guidance-to-Military-Discharge-Review-Boards.pdf.

[25] Robert Wilkie, Memorandum for Secretaries of the Military Departments, (July 25, 2018), https://www.statesidelegal.org/sites/default/files/2018-07/Yale%20Page/Wilkie%20Memo.pdf.

 

Written By Spring 2021 M-VETS Student Advisor Raphael Johnson.

The Department of Defense reaffirmed its commitment to protecting and supporting victims of domestic violence by extending Special Victim Counsel services to military-connected victims of domestic violence. The Fiscal Year 2020 National Defense Authorization Act directed the Department of Defense to extend Special Victim Counsel services to personnel previously not authorized assistance from military attorneys, uniformed and civilian.[i] Ordinarily, only servicemembers, retirees, and their family members are authorized to receive legal assistance from judge advocates and civilian attorneys. While victims of crime have always received support from judge advocates in their role as prosecutors and legal assistance attorneys, victims were not the judge advocate’s “client.”

The establishment of the Special Victim Counsel program several years ago changed the way legal assistance is provided to victims of sexual assault. Special Victims Counsel are uniformed military attorneys (judge advocates) and civilian attorneys that have received specialized training on advising victims of sexual assault in order to better assist victims in navigating the military justice process.[ii] The military culture presents barriers that lead to underreporting of crimes that undermine the tenets of military service, degrade good order and discipline, and negatively impact victims’ ability to seek justice. The military’s structure, jargon, and traditions present communication challenges for unfamiliar personnel in their attempts to conduct simple business transactions on military installations. Reporting crimes on military installations is a difficult task.

Victims of sexual assault were not provided the required assistance, and the military responded by ensuring each victim was entitled to a Special Victim Counsel. Additionally, Congress directed the military to provide Special Victim Counsel support to requesting victims within 72 hours of the request.[iii] Each military branch has implemented the Congressional guidance uniquely, but the common result is that victims of sexual assault, and now, domestic violence, will have the option to be represented by an experienced attorney that will explain the military justice process and advocate for the victims’ rights. Special Victim Counsel services extend to child victims, non-Department of Defense affiliated personnel, and non-U.S. citizens.

The military has increased its accountability for the crimes of its servicemembers which has led to an overall increase of unrestricted reports of sexual assault. This does not indicate an increase of sexual assaults throughout the military. The “unrestricted” report refers to the military’s ability to prosecute perpetrators for their crimes. A victim’s ability to leverage the expertise of a Special Victim Counsel early in the potential military justice process is critical in deciding whether to pursue an unrestricted report.

The effectiveness of Special Victim Counsel services has achieved “proof of concept” and will be utilized to ensure victims of domestic violence have a voice. Victims will receive free legal assistance related to the domestic violence and related incidents, despite their Department of Defense affiliation, regardless of the disposition of their legal matter. While the overall goal is to eradicate sexual assault and domestic violence in our society and in the military, until that goal is reached, victims must be empowered throughout the process. Please contact your local installation legal office if you need a Special Victims Counsel.

[i] Fiscal Year 2020 National Defense Authorization Act.

[ii] Id.

[iii] Id.

Written By Spring 2021 M-VETS Student Advisor Alana Nielson.

“I wanted to believe in the Navy’s ability to properly handle cases of sexual assault. However, after having been through the process, it became clear that while step one [reporting the assault] is for the victim, all else is done explicitly for the image of the Navy, and the process caters to the perpetrators.” –Navy Veteran, victim of sexual assault

When most parents are informed that their children are joining the military, their first—and often biggest—fear is that their child will be sent off to war and killed. Most parents don’t think that their children will face the same fears of personal safety from within their own units. Most parents can’t imagine that their children could face more harrowing conditions on their own bases, within the United States and abroad, than they will in combat. But this is the new normal for many servicemembers, veterans, and their families.

This new normal includes 20,500 servicemembers who were sexually assaulted or raped in 2018, a 7% increase from 2016.[1] Sexual harassment complaints have also steadily increased—in 2019, the DoD received 1,021 formal sexual harassment complaints, a 55% increase since 2015.[2] In addition to the 1,021 formal complaints, the DoD received 591 informal harassment complaints and 28 anonymous complaints.[3]

These numbers show that efforts made by the Department of Defense to mitigate instances of sexual assault and sexual harassment are failing to be effective. A 2019 “Call to Action” by the Secretary of Defense, aimed at training leaders to prevent and adequately respond to sexual assault and harassment, has not been proven to be effective. Previous efforts to respond to the crisis have been equally ineffective, as the number of sexual assaults continues to grow, year after year, for the past decade.[4]

While the military touts that reporting rates have increased[5], the Sexual Assault Prevention and Response (SAPR) team, who provided these data, provided no indication that the increase in reporting rates had any effect on the mitigation of sexual assault or harassment incidents during the same time period.

 “The entire process was a year of re-victimization. I was treated as if I were the one in the wrong during questioning. I was pressured against hiring a lawyer. I was told ‘You don’t want what happened to you to be in the media, do you?’ The prosecution, the Navy JAGs, were there to represent the Navy—not pursue justice for what was done to me. My character was under assault the entire time. It battered me down and created its own trauma.” –Navy Veteran, victim of sexual assault

Case disposition

Yet another troubling aspect of the Department of Defense’s handling of sexual assault and sexual harassment complaints is the case disposition. Of the 1,021 formal sexual harassment complaints lodged in 2019, 30% of the cases remained either pending or otherwise unresolved as of the publication of annual reporting.[6] Of the over 7,000 sexual assault reports received in 2019, 5,699 of which were unrestricted, 1,828 cases are still pending investigation.[7]

What is even more troubling about the SAPR-provided data is the outcome of Department of Defense Officer of the Inspector General (DOD OIG) investigations into reports of reprisal arising from sexual harassment and assault claims. Of the 85 reported claims of reprisal in 2018, 72% were dismissed.[8] Only two claims were substantiated in the entire Fiscal Year 2019.[9]

In just the past few days, the Department of Defense released sexual assault reporting data for 2020, and the results are even more devastating. Only 255 of 5,640 unrestricted reports resulted in offenders being sent to court martial. Of those, only 50 were convicted of a sex offense requiring registration as a sex offender.[10]

Effects

The effect of this pervasive culture of sexual impropriety in the military has led to over one million outpatient visits at Veterans Affairs (VA) medical facilities around the country for military sexual trauma (MST)-related care in 2015 alone.[11] These reported visits cannot begin to scratch the surface of the physical and psychological effects suffered by victims of military sexual trauma. Thousands of veterans have MST-related claims pending with the VA, representing potentially millions of dollars in back benefits to be paid to victims. Victims of MST are more likely to suffer from suicidal thoughts or actions, depression, sexually transmitted infections, post-traumatic stress disorder (PTSD), substance abuse, and homelessness than their counterparts who did not experience military sexual trauma.[12] Additionally, victims of MST are more likely than their counterparts to remain in abusive relationships, feel isolated from others, and experience difficulty maintaining professional relationships with employers and other authority figures.[13]

Help and Support

Despite the insufficient and often ineffectual handling of sexual assault and harassment by the Department of Defense, organizations outside the military are mobilized to support service members and veterans suffering from the effects of military sexual trauma. Organizations like Protect Our Defenders, a national organization dedicated to supporting victims of MST, and the Pink Berets, a Women Veterans Alliance organization devoted to addressing MST and PTSD, are available to give the necessary support service members and veterans seek, need, and deserve.

If you have been a victim of military sexual trauma, you can apply for legal services at https://protectourdefenders.neworg.com; contact Stephanie Gattas at [email protected]; or call the Rape, Abuse, and Incest National Network (RAINN) at 1-800-656-4673. If you need immediate assistance, you can call the Veterans Crisis Line at 1-800-273-8255 (press 1 for veterans) or text at 838255.

[Please note: during the drafting of this blog post, the United States Department of Defense Sexual Assault Prevention and Response department issued its FY2020 reports. Not all figures in this post reflect the most recently available data. Please visit https://www.sapr.mil/?q=reports for information on FY19 and beyond sexual assault and harassment data and information.]

[1] Department of Defense Fiscal Year 2019 Annual Report on Sexual Assault in the Military, Appendix B: Statistical Data on Sexual Assault, Figure 3.

[2] Department of Defense Fiscal Year 2019 Annual Report on Sexual Assault in the Military, Appendix F: Sexual Harassment Assessment, Figure 1.

[3] Id. at 4.

[4] Department of Defense Fiscal Year 2019 Annual Report on Sexual Assault in the Military, Appendix B: Statistical Data on Sexual Assault, Figure 1.

[5] Reports of sexual assault increased from 3,327 in 2010 to 7,825 in 2019, a 135% increase. Id.

[6] Department of Defense Fiscal Year 2019 Annual Report on Sexual Assault in the Military, Appendix F: Sexual Harassment Assessment, Figure 2.

[7] Department of Defense Fiscal Year 2019 Annual Report on Sexual Assault in the Military, Appendix B: Statistical Data on Sexual Assault, Figure 6.

[8] Id. at Table 19.

[9] Id.

[10] Department of Defense Fiscal Year 2020 Annual Report on Sexual Assault in the Military, Appendix B: Statistical Data on Sexual Assault, Figure 12.

[11] Department of Veterans Affairs, Patient Care Services, Mental Health Services, MST Support Team, FY 2015 Summary of MST-Related Outpatient Care (2016).

[12] Women Veterans and Homelessness: Homelessness Evidence & Research Roundtable Series, VA National Center On Homelessness Among Veterans (July 2016), https://www.va.gov/HOMELESS/nchav/resources/docs/veteran-populations/women/Women-Veterans-and-Homelessness-July-2016.pdf.

[13] Military Sexual Trauma, VA Mental Health (Nov. 1, 2020), https://www.mentalhealth.va.gov/docs/mst_general_factsheet.pdf.