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C O N T E N T S
February 13, 2008

Review of Expiring Programs

OPENING STATEMENTS

Chairwoman Stephanie Herseth Sandlin
    Prepared statement of Chairwoman Herseth Sandlin
Hon. John Boozman, Ranking Republican Member
    Prepared statement of Congressman Boozman

WITNESSES

U.S. Department of Labor, Hon. Charles S. Ciccolella, Assistant Secretary, Veterans’ Employment and Training Service
    Prepared statement of Hon. Ciccolella
U.S. Office of Special Counsel, Hon. Scott J. Bloch, Special Counsel
    Prepared statement of Hon. Bloch
U.S. Department of Veterans Affairs, Keith Pedigo, Associate Deputy Under Secretary for Policy and Program Management, Veterans Benefits Administration
    Prepared statement of Mr. Pedigo

American GI Forum of the United States, Colonel Felix C. Vargas, Jr., USAR (Ret.), Senior Advisor
    Prepared statement of Colonel Vargas
American Legion, Ronald F. Chamrin, Assistant Director, Economic Commission
    Prepared statement of Mr. Chamrin
Iraq and Afghanistan Veterans of America, Todd Bowers, Director of Government Affairs
    Prepared statement of Mr. Bowers
Tully, Mathew B., Esq., Founding Partner, Tully Rinckey PLLC, Albany, NY
    Prepared statement of Mr. Tully
Veterans of Foreign Wars of the United States, Justin M. Brown, Legislative Associate, National Legislative Service
    Prepared statement of Mr. Brown

SUBMISSIONS FOR THE RECORD

Gold Star Wives of America, Inc., Vivianne Cisneros Wersel, Member, Government Relations Committee, statement
Vietnam Veterans of America, Richard F. Weidman, Executive Director for Policy and Government Affairs, statement

REVIEW OF EXPIRING PROGRAMS

Wednesday, February 13, 2008
U. S. House of Representatives,
Subcommittee on Economic Opportunity,
Committee on Veterans' Affairs,
Washington, DC.

The Subcommittee met, pursuant to notice, at 2:32 p.m., in Room 340, Cannon House Office Building, Hon. Stephanie Herseth Sandlin [Chairwoman of the Subcommittee] presiding. 

Present: Representatives Herseth Sandlin, Donnelly and Boozman. 

OPENING STATEMENT OF CHAIRWOMAN HERSETH SANDLIN

Ms. HERSETH SANDLIN.  Good afternoon, ladies and gentlemen.  The Committee on Veterans’ Affairs Subcommittee on Economic Opportunity hearing will come to order.  I apologize for the late start.  Some of us had markups in other committees and the votes have been somewhat unpredictable today.  Hopefully we will have about a half an hour to an hour here uninterrupted, and then we will be back with your patience.  We appreciate the patience you have already demonstrated. 

I would like to call to the attention, to the Subcommittee, to the fact that the Vietnam Veterans of America and the Gold Star Wives of American have asked us to submit written statements for the hearing record.  If there is no objection, I ask for unanimous consent that their statements be entered for the record.  Hearing no objections, so entered. 

[The statements of the Vietnam Veterans of America and the Gold Star Wives of America appears in the Appendix.]

Ms. HERSETH SANDLIN.  As many of you know, a recent Associated Press article dated February 8, 2008, highlighted the troubles encountered by recently released servicemembers in obtaining employment.  The article went on to cite an employment histories report published for the U.S. Department of Veterans Affairs (VA), which concludes more can be done by the public and private sectors to ensure servicemembers are successful in obtaining employment after their service to our country.  Furthermore, the article refers to a U.S. Department of Labor’s (DOL) Uniformed Services Employment and Reemployment Rights Act (USERRA) Annual Report to Congress, which cites a high rate of USERRA complaints by returning Guard and Reserve forces. 

I know that I am not alone when I say that this article raises serious concerns about the problems encountered by many of our constituents and today’s hearing gives us a venue to reevaluate several programs that may help them succeed in life after the military.  These programs have either recently expired, or are set to expire, or include benefits level rates of which are set to reduce to prior levels from prior years.  These programs include the Incarcerated Veterans Transition Program, the Joint Office of Special Counsel (OSC) and U.S. Department of Labor’s Veterans' Employment and Training Service (VETS) Demonstration Project, apprenticeship and on-the-job training (OJT) benefit levels, and the Adjustable Rate Mortgage (ARM) Demonstration Projects. 

I look forward to working with Mr. Boozman, our Ranking Member, and Mr. Donnelly and other Members of the Subcommittee to continue to improve readjustment benefits available to all servicemembers and veterans.  I would now like to recognize our Ranking Member, Mr. Boozman, for any opening remarks he may have.

[The statement of Chairwoman Sandlin appears in the Appendix.]

OPENING STATEMENT OF HON. JOHN BOOZMAN

Mr. BOOZMAN.  Thank you, Madam Chair.  And I thank you for holding this important hearing on expiring authorities in both VA and VETS.  When Congress creates new programs within the Federal Government, it is common to include a sunset that requires Congress to reauthorize the program a few years after the enactment of the law for review.  This is an important management tool that allows us to review the program and then determine if it should continue.  Sunsets are also the result of not having sufficient PAYGO offsets to make a program permanent.  In general, I believe there is always room for improvements to any program and each probably also has some faults.  That is why I look forward to hearing the suggestions of our witnesses on how we can do this. 

I would like to commend the testimony of Mr. Tully.  While I have not had time to digest his suggested amendments to USERRA, which we will do, his good example, I think you have a very good example in writing a very effective testimony.  He lists specific problems, cites the related U.S. Code, and offers specific recommendations on how to solve these problems.  I thank him for the thoughtfulness with which he has addressed the issue and once again I thank you, Madam Chair, for holding this very important hearing and look forward to the testimony of our witnesses.

[The statement of Congressman Boozman appears in the Appendix.]

Ms. HERSETH SANDLIN.  Thank you, Mr. Boozman.  I would now like to welcome all of our panelists who will be testifying this afternoon.  Let me first introduce to the Subcommittee our witness on our first panel, Mr. Mathew Tully, partner of Tully Rinckey, PLLC.  Welcome to the Subcommittee.  We look forward to your testimony.  I would like to remind you, and all of the rest of our panelists this afternoon, that your complete written statement has been made a part of the hearing record.  Please limit your remarks to five minutes so that we have sufficient time to follow up with you and the other panels this afternoon with questions that we may have.  That way everyone has ample opportunity not only with their written testimony, but also has sufficient time to respond to some of our questions, most of which are going to be either anticipated, or will not be out of left field based on your testimony and what we are trying to get at today, as Mr. Boozman described in his opening remarks.  Mr. Tully, again, welcome and you are recognized for five minutes. 

STATEMENT OF MATHEW B. TULLY, ESQ., FOUNDING PARTNER, TULLY RINCKEY PLLC, ALBANY, NY

Mr. TULLY.  Thank you, Madam Chairwoman.  Thank you Ranking Member Boozman, Members of the Committee, for allowing me to testify today.  I am the victim of USERRA discrimination, I am also a survivor of the 9/11 attacks on the World Trade Center, and I am also a disabled veteran of Operation Iraqi Freedom. 

In 2004, my law partner, Greg Rinckey, who served as an Army Judge Advocate General (JAG) for six years, and I started our law firm with the sole purpose of helping USERRA victims.  I think we know the law and all of its flaws better than most.  With that said, we support the Office of Special Counsel’s continued involvement in the investigation of USERRA complaints.  We also believe USERRA could be improved to better protect servicemembers. 

Specifically we would ask that the Office of Special Counsel have the power to discipline Federal supervisors who engage in USERRA discrimination.  Right now, Federal supervisors routinely engage in USERRA discrimination and are not punished by their agencies unlike other laws, for example Equal Employment Opportunity (EEO) discrimination.  If a supervisor were to engage in EEO discrimination ,their agency would generally discipline that supervisor for violating the code of conduct.  That does not happen routinely in USERRA cases.  And we believe that OSC should have the same powers that it has under the Hatch Act to bring separate disciplinary cases against members of the Federal Government who engage in USERRA discrimination. 

Secondly, USERRA is known in the employment law community as “the toothless law” because it does not provide for the same type of damages provided to other, in other employment law States.  Servicemembers are treated as second class citizens in this respect.  I would specifically point that the Whistle Blower Protection Act has additional damages that can be applied if somebody engages in whistle blower discrimination.  EEO laws have very strong damages.  They have liquidated damages.  They have punitive damages.  They have compensatory damages. 

Right now we currently have a client who works for the Post Office.  His name is Richard Erickson.  He is also a Sergeant Major in the Army Reserves.  Sergeant Major Erickson was fired from the Post Office and received a letter.  And the letter says he is terminated for taking excessive military leave.  He has been unemployed for two years as his case battles through the Merit Systems Protection Board (MSPB) and through the Federal circuit.  We think it is important to have injunctive relief and interim relief, which would allow Sergeant Major Erickson to immediately go to court and get an order reinstating him back to the Post Office before final order of the Merits Systems Protections Board or the Federal circuit is issued.  That is common practice in EEO law.  If somebody were to send a letter saying, “You’re fired because you’re an African American,” or, “because you’re Catholic,” or because you’re whatever protected class, you would take that letter into court and you would be able to get an injunctive relief and that person would get returned back to work.  And that is what we are talking about here with USERRA being toothless.  None of these provisions are in USERRA. 

Next I would point out that the attorney fee provisions in USERRA are very weak.  Unlike in other discrimination laws that mandate the payment of attorneys fees upon the successful conclusion of a case, USERRA doesn’t have that.  And what you have is on one hand the number of USERRA attorneys in this country, that actively represent people, outside of my law firm.  And that is because most employment lawyers don’t want to take on cases where there is no chance of recovering money, or there is a slim chance of recovering money.  USERRA needs to have a provision that requires the payment of attorneys fees on a successful completion of the case. 

I know I only have a minute left.  As a member of the National Guard, I see the hollowing out of the military occurring right now.  And I believe the military is being hollowed out for two specific reasons.  Employment disputes; you have combat veterans from Iraq and Afghanistan coming back and they are not reenlisting in the National Guard and Reserves because they have problems with their employers.  This Committee has the power to change that.  Nobody should not have to pick between staying in the National Guard or Reserve or keeping their employment. 

The second major dispute, although not on the topic of today, that I see as a common problem in my unit is custody, child custody.  Single parents are being forced to pick between their children or the military.  And as a father, if I was ever placed in that situation I would pick my child.  And I would ask that this Committee review the provisions of the Servicemembers Civil Relief Act to ensure that child custody is addressed.  And I know that there has been a change under the National Defense Act of 2008.  That doesn’t go far enough.  The law should be made crystal clear so that a deployment cannot adversely affect a parent in a child custody case.  That is my five minutes.

[The statement of Mr. Tully appears in the Appendix.]

Ms. HERSETH SANDLIN.  Well, no disrespect to some of our witnesses that will be following you but you have done a better job than a lot of folks sometimes do in keeping within your five minutes.  I appreciate that, although I am certain that Mr. Boozman, Mr. Donnelly, and I have some questions for you based on not just what you shared with us in the last five minutes but other elements of your written testimony.  I will go ahead and recognize our Ranking Member first for his questions.  Mr. Boozman?

Mr. BOOZMAN.  Thank you for your testimony.  Some have expressed concern that if you do increase the enforcement penalties for USERRA, that will make employers reluctant to hire Guardsmen.  How do you respond to that?

Mr. TULLY.  There is already a provision in USERRA that says you cannot discriminate based on a person’s military status.  Where the concern here lies, sir, is in Reservists that are on their second, third, or fourth deployment.  I am a small business owner.  And I don’t know how I would handle a person who in the course of, since September 11th, has deployed four times overseas.  That is where we are running into concrete, intentional violations of USERRA. 

As a general rule, I like to hire veterans.  I like to hire Reservists, I like to hire National Guardsmen.  I think overwhelmingly that is what Americans like to do.  So I don’t see a problem with the initial hiring.  I see a problem when they are actually employed and they are on their third or fourth deployment to Iraq or Afghanistan in five years.  For small businesses, that is just catastrophic.  And I can tell you as a small business owner who deployed to Iraq, it was very hard for my firm.  My firm lost $173,000 because of my deployment.  Luckily I has a good partner and several associates that were able to make up the money.  But I don’t think the issue, Mr. Congressman, is with the initial hiring.  It is with once they are there.  And educating the employers so that they don’t engage in discrimination, and then having strict penalties when they do.

Mr. BOOZMAN.  Very good.  You mentioned the child custody.  Can you give me a for real life example?

Mr. TULLY.  Absolutely.  Approximately a month ago Specialist Towne, who is in my unit, the Headquarters, 42nd Infantry Division, lost custody of her daughter because she was deployed to Iraq.  And the court held that the best interest of the child was that the child were to remain in Virginia of her ex-spouse.  So she had custody of the child for approximately nine years.  She deployed to Iraq with me.  When she came back she tried to get custody and the judge said, “The child has adjusted well to the schools in Virginia.  The child has adjusted well to the new lifestyle.  And although both of you are good parents,” and this is actually in the court order.  “While both of you are good parents, we don’t want to uproot the child again and bring her back to New York.”  So here is a perfectly good soldier, a perfectly good mother, who lost custody because she went to Iraq to fight for her country.  And I personally find it disgusting. 

Mr. BOOZMAN.  And there were no other extenuating circumstances? 

Mr. TULLY.  No.  And it is, Towne is the name of the case.  It was decided by the 3rd Appellate Division out of New York.  It was pretty well publicized.  And that is just the most recent one.  And before that there were many that this Committee was aware about because they, you proposed changes in the National Defense Act of 2008 to change the Servicemembers Civil Relief Act.  But those minor changes, I believe it was six words, don’t, it pertains to temporary custody orders and not a more expansive protection of somebody’s custody rights. 

Mr. BOOZMAN.  Very good.  How do you respond to testimony from both OSC and VETS that their role as a Federal agency, with its natural insight into Federal processes, makes them better fit to process USERRA Federal claims?

Mr. TULLY.  I don’t buy it.  In the U.S. Government Accountability Office (GAO) report, they handled approximately 200 cases, OSC about another 200, 300 cases by the Department of Labor.  During that exact same time frame, my law firm handled 1,800 USERRA cases.  The vast majority of those were Federal employees.  I will tell you this.  My budget is a lot less than the Department of Labor, VETS, and I don’t have a hundred some odd people that Department of Labor VETS has.  My firm is doing it much cheaper, much more effective.  And that is what private sector does.  And by making attorneys fees mandatory you will see a dramatic increase in the number of attorneys that are willing to take these cases. 

Right now, if you are an E4 and you have a USERRA complaint, you don’t have the money to pay an attorney $5,000, $10,000, $15,000.  Now my law firm takes most of our cases on a contingency, or free, because we are trying to help USERRA veterans.  But there are only so many cases we can take.  If you are the average servicemember, your only two options are DOL VETS or, formerly Office of Special Counsel.  And you are stuck with them.  And unfortunately the DOL VETS only has a 7 percent success rate, according to the GAO Report.  We have a 75 percent success rate.  What that means is 75 percent of the clients, 75 percent of those 1,800 clients that we took, we had a favorable settlement or we won their case in court.  That is ten times what DOL VETS does.  I think private sector is much more acquainted and much more able to handle these type of complaints.  And we can do it cheaper.  There is no reason why the Federal Government should be involved at all. 

Mr. BOOZMAN.  You mentioned the 1,800 cases.  Of that group, how many would qualify with the knowing, willful, malicious, whatever, would qualify for punitive damages?

Mr. TULLY.  I cannot, I don’t have it broken down.  I would suspect it is—

Mr. BOOZMAN.  What percentage do you think?

Mr. TULLY.  —a much smaller number.  We don’t see on the Federal side a significant number of willful and intentional violations.  What we see is a lack of education.  And that is why we would hope if OSC were to have disciplinary powers, that would scare people into knowing what the law is.  But I would say—

Mr. BOOZMAN.  So it would be a small percentage?

Mr. TULLY.  Very small percentage.  We see a higher percentage in the private employers that are facing the third and fourth deployment.  In those cases, it is dramatically higher.  But in the Federal Government side, a supervisor doesn’t really have an axe to grind.  It is more of a lack of knowledge or lack of information.

Mr. BOOZMAN.  Thank you very much.  Thank you, Madam Chair.

Ms. HERSETH SANDLIN.  Thank you, Mr. Boozman.  Mr. Donnelly?

Mr. DONNELLY.  Thank you, Madam Chairwoman.  In regards to your law firm’s work, and you may have mentioned this earlier, approximately how many firms would you say around the country specialize in the same type of work that you do, the USERRA work?

Mr. TULLY.  I am only familiar with about a handful of attorneys, not law firms, that do full-time USERRA litigation.  Now with that said, there are thousands of attorneys that do employment law and they may do one USERRA case a year or two USERRA cases a year, but off the top of my head, I only know of about five private attorneys that work full time doing USERRA enforcement outside of the Federal Government.

Mr. DONNELLY.  And the Department of Labor handles cases as well?

Mr. TULLY.  Outside of the Federal Government.

Mr. DONNELLY.  Right.

Mr. TULLY.  So no, including the hundred investigators, and the handful of attorneys that work for DOL VETS.

Mr. DONNELLY.  Do you feel that, and please don’t rely on modesty, but do you feel that your firm’s preparation, that the cases are much better presented and that is why your success rate is so much higher?

Mr. TULLY.  Absolutely.  This is about a word of mouth.  And unfortunately right now, DOL VETS, the word of mouth on the street is not very good.  OSC was building a positive reputation among servicemembers.  But DOL VETS has had twelve years, thirteen years to fix their problems and they haven’t.  So we have been successful.  When you have a 75 percent success rate with 1,800 people that is a lot of happy clients that have a lot of money in their pockets that are telling all of their buddies in the Army Reserve and National Guard about this guy Mat Tully in Albany who can help you out with your employment problems.  So the success of our firm, and my firm was started with just me, five years go.  We are now up to almost twenty attorneys.  The success of our firm is solely because of word of mouth and minor advertisement. 

Mr. DONNELLY.  And do you feel that the awarding of attorneys fees would give veterans in other areas of the country more opportunity and better options in this area?

Mr. TULLY.  Absolutely.  If there was mandatory attorneys fees, you would see a lot more attorneys get into this field than just the five attorneys that are there now.  It would be like EEO law.  You know, with all due respect, there is an EEO attorney on every street corner.  And that is what I would like to see here with USERRA, is to have a lot of USERRA attorneys out there making sure that people are educated and making sure the laws are enforced.  And that would come at no cost to the Federal Government. 

As a matter of fact, if there was a large private attorney base out there that was experienced in USERRA, DOL VETS and OSC would probably go out of business because what we are able to provide is immediate access to the court.  When we are talking about OSC and DOL VETS, that is just the investigative phase.  And that may take six months, a year.  In one case DOL VETS has had a case from Alaska for seven years.  And that is before they even file in court.  And that is assuming that the U.S. Department of Justice (DOJ) files the case in court.  Within two weeks, we take a case, we are filing either before a court or before the Merit Systems and Protection Board.  We bring immediate action, unlike Federal Government agencies, which take time to investigate and have various people who have to approve.  DOL VETS has to, after an investigator, and I will turn this over to the Secretary, but there is a long process before it gets turned over to DOJ.  In our case, you call in, we do a consult over the phone, you provide us a sworn statement attesting to the facts, and we take your case right into court. 

Mr. DONNELLY.  Thank you very much.  Madam Chairwoman, thank you. 

Ms. HERSETH SANDLIN.  Thank you, Mr. Donnelly.  Mr. Tully, you gave an example in your testimony today about the individual who was with the Postal Service I believe?

Mr. TULLY.  Yes, ma’am.

Ms. HERSETH SANDLIN.  Would that be an example of willful and knowing violation, right?  I think the supervisor stated it was for excessive time away from his job based on military service?

Mr. TULLY.  Absolutely.

Ms. HERSETH SANDLIN.  In one of the suggestions you made for improving USERRA you mentioned providing for injunctive relief—

Mr. TULLY.  Yes.

Ms. HERSETH SANDLIN.  —the way other employment statutes do provide.  So that would be, because currently there is no injunctive relief whether it was willful and knowing or whether it was ignorance of the law, correct?

Mr. TULLY.  There is injunctive relief on, for State and private employers at the discretion of the court.  There is no injunctive relief on the Federal side.  What we are asking for is injunctive relief on the Federal side as well as mandatory injunctive relief on the State side.  And that is laid out in greater detail in my written statement.  But in Mr. Erickson’s case, Sergeant Major Erickson’s case, if we had injunctive relief on the Federal side, I could have gone to the MSPB and gotten an order reinstating him until his case was finally adjudicated.

Ms. HERSETH SANDLIN.  Okay.  Well I think that is a very good suggestion and we will pursue this further and perhaps with some of the witnesses on our other panels.  Just as we will pursue some of the questions based on the rather stark statistics that you provide on the number of employees you have versus the number of cases that you have taken vis-à-vis the OSC or DOL VETS, the rate of success in those cases.  Now you recommend abolishing DOL VETS and shifting resources and responsibilities to the Employer Support of the Guard and Reserve (ESGR).  Maybe I am misstating that, but if you could give me a better understanding of what it is you are proposing as it relates to OSC since their authority to be a primary referral has expired.  You had mentioned they were building a better reputation among servicemembers in handling and investigating the claims under USERRA.  Are you recommending a series of things that we reauthorize that authority so that they can be a primary referral?  That we take DOL VETS entirely out of it?  That we, in addition to providing for attorneys fees and other changes to USERRA, that there is some way of getting more private firms to take these cases?  What exactly is the best case scenario in your opinion for handling the claims?  Should we streamline it?  Let one entity do the investigation, handle the claims?  Or do it all in the private sector? 

Mr. TULLY.  Thank you.  I think the best case is for the ESGR to handle information, which is a significant part of what DOL VETS does.  ESGR should get additional funding so that they can provide information to employers so they can be, for example, the good cop.  And I believe mandatory attorneys fees would then allow private attorneys to get more active in these cases and enforce USERRA.  And finally I believe OSC should be involved with, very similar to the Hatch Act, with the actual disciplining of Federal employees that engage in misconduct.  As far as State employees and local employees, they are going to be subjected to punitive damages, liquidated damages, things of that nature so that there is really no need for an OSC type enforcement there.  But in the ideal world, best case scenario, turning this upside down, ESGR should get the funding for education.  OSC should be doing discipline of intentional and willful violations of Federal employees, and private law firms should have mandatory attorneys fees when they successfully prove a case.  If they take a case and they lose, they shouldn’t get attorneys fees, obviously.  But if they take a case and win, they should get attorneys fees.  That is the ideal situation.  But in the meantime, today?  I think that OSC should have all Federal employment cases.  And I believe DOL VETS should continue with the State.  Ideally, you should streamline it so that if you are going to keep one Federal agency involved in enforcement, you are going to have to decide DOL VETS or OSC.  And my take on it, OSC in the two years or so that they have been doing it they have built a much better reputation in the community than DOL VETS.  So if you are going to streamline it, I would say go with OSC. 

Ms. HERSETH SANDLIN.  Thank you.  Thank you very much for answering all of our questions.  If we have further ones we will submit those to you in written form.

Mr. TULLY.  Thank you.

Ms. HERSETH SANDLIN.  We appreciate your perspective.  We certainly appreciate the good work that you are doing on behalf of servicemembers and veterans.  We appreciate your service to the country and your testimony today. 

Mr. TULLY.  Thank you.

Ms. HERSETH SANDLIN.  Thank you very much for being here.

Mr. TULLY.  Thank you. 

Ms. HERSETH SANDLIN.  Joining us on our second panel is Mr. Ronald Chamrin, Assistant Director on Economic Commission for the American Legion; Mr. Justin Brown, Legislative Associate in the National Legislative Service for the Veterans of Foreign Wars (VFW); Mr. Todd Bowers, Director of Government Affairs for the Iraq and Afghanistan Veterans of America (IAVA); and Colonel Felix Vargas, Senior Advisor to the American GI Forum.  Gentlemen, thank you for being here.  We appreciate your written testimony that has already been submitted, and look forward to hearing from each of you today.  Mr. Chamrin, we will begin with you, and you are recognized for five minutes. 

STATEMENTS OF RONALD F. CHAMRIN, ASSISTANT DIRECTOR, ECONOMIC COMMISSION, AMERICAN LEGION; JUSTIN M. BROWN, LEGISLATIVE ASSOCIATE, NATIONAL LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED STATES; TODD BOWERS, DIRECTOR OF GOVERNMENT AFFAIRS, IRAQ AND AFGHANISTAN VETERANS OF AMERICA; AND COLONEL FELIX C. VARGAS, JR., USAR (RET.), SENIOR ADVISOR, AMERICAN GI FORUM

STATEMENT OF RONALD F. CHAMRIN

Mr. CHAMRIN.  Thank you Madam Chair and Members of the Subcommittee.  Thank you for the opportunity to present the American Legion’s view on some of the VA’s expiring programs.  The majority of the programs discussed today received increased payments by the passage of the Veterans Benefit Improvement Act of 2004, Public Law 108-454.  Due to the expiration of temporary increased payments on January 1, 2008, many veterans will receive a lower monthly payment for earned education benefits.  The American Legion opposes any reduction in education assistance payments.  The American Legion recommends that the dollar amount of the entitlement be indexed to the average cost of college education, including tuition, fees, textbooks, and other supplies at an accredited university, college, or trade school for which a veteran qualifies. 

Approximately 7,000 veterans are immediately affected due to the drop in monthly payments.  The American Legion has long advocated for increased education benefits and raising the rates of the entitlement.  Lowering benefits is an insult to all veterans, and an extension of the OJT payment rates implemented in Public Law 108-454 should be indefinite.  This would cover OJT for the GI Bill, Active Duty and Selective Reserve, the Veterans Education Assistance Program (VEAP), and Survivors and Dependents Educational Assistance Program.

Not every veteran is destined for college.  Therefore, the GI Bill needs to be more accessible for those veterans with vocational aspirations other than college.  The overall cost of these vocational training and licensing programs far exceed the monthly stipend provided under the traditional college student for thirty-six months approach in the current GI Bill.  Veterans should be afforded the opportunity to attend programs that will lead to the vocation of their choice. 

In addition, a high percentage of today’s servicemembers are married with children in the majority of cases when they are discharged.  Meeting the financial obligations to sustain and maintain a household is paramount and often serve as a major obstacle to their timely use of the GI Bill.  Every effort must be made to empower every veteran with options to make the best vocational choice to help them achieve the American Dream. 

I will briefly talk about the VA Loan Guarantee Program Projects.  The American Legion supports the reinstatement of the Adjustable Rate Mortgage Programs that will expire at the end of this calendar year.  Since the VA Home Loan Program was enacted as part of the original Servicemen’s Readjustment Act of 1944, VA has guaranteed more than 18.2 million home loans totaling nearly $938 billion.  From 2001 to 2006 VA assisted more than 1.4 million veterans in obtaining home loan financing, totaling almost $197 billion.  About half of these loans, just over 730,000, were to assist veterans to obtain a lower interest rate on existing VA guaranteed home loans through the VA’s Interest Rate Reduction Refinancing Loan Program.  The American Legion also supports administrative and/or legislative efforts to improve and strengthen the loan guarantee service’s ability to serve American’s veterans.  H.R. 4884, the "Helping Our Veterans To Keep Their Homes Act of 2008," addresses the expiration of these programs.

In reference to the topics before the Committee today, the American Legion supports the following portions of the proposed legislation, H.R 4884, Section 2a, the extension of demonstration project on adjustable rate mortgages to 2018 and the extension of Demonstration Project Hybrid Adjustable Rate to 2012.     

In conclusion, former President Franklin Delano Roosevelt once said, “The test of our progress is not whether we add more to the abundance of those who have much.  It is whether we provide enough for those who have little.”  Different options for purchases of homes and the ability to afford an education must constantly be provided to veterans.  The American Legion looks forward to continue working with the Subcommittee to assist the Nation’s veterans.  Madam Chair and Members of the Subcommittee, that concludes my testimony.

[The statement of Mr. Chamrin appears in the Appendix.]

Ms. HERSETH SANDLIN.  Thank you, Mr. Chamrin.  Mr. Brown, you are recognized for five minutes.

STATEMENT OF JUSTIN M. BROWN

Mr. BROWN.  Madam Chairwoman, Ranking Member Boozman, and Members of this Subcommittee, on behalf of the 2.3 million members of the Veterans of Foreign Wars of the United States and our auxiliaries, I would like to thank you for the opportunity to testify before this distinguished body.

Today as we consider veterans issues of transition and stabilization—employment, housing, and education—I ask that we briefly reflect on a historical comparison.  In 1973, following the Vietnam War, the all volunteer force was implemented.  In order to fill the ranks of a military worn down by fighting in Vietnam, recruitment standards were reduced.  In 1976, the Post Vietnam Era Veterans Education Assistance Program, VEAP, was created as a recruitment incentive to help fill the ranks.  However, relative to programs that came before VEAP, it provided the least amount of education benefits to veterans.

From 1973 to 1985, the military had lowered recruitment standards and meager transition benefits, resulting in a group of veterans that is three to four times more likely to be homeless than their non-veteran counterparts.  In contrast, Vietnam veterans prior to this time period are only one to 1.4 times more likely to be homeless than their non-veteran counterparts.  Currently, the most common attribute of a homeless veteran is not combat.  It is their age and relation to public policy. 

The commonly held notion that the military experience provides young people with job training, educational and other benefits, as well as the maturity needed for a productive life conflicts with the presence of veterans amongst the homeless population. 

If we are to use history as a marker we might suggest that a robust, attractive initial education investment would have alleviated many of the issues America and its veterans are coping with today. 

If we fail on the front end with hand up programs such as education, job training, and vocational rehabilitation we miss an opportunity to create a sound stabilization and transition program.  In the end, the American people pay for expensive programs that are difficult to administer, produce limited results, and often fail to achieve their objectives.  We ask that Congress closely monitor and consider the future implications of lowered recruitment standards.  Raising the initial education benefit could offset some of the reduction in recruitment standards while providing the best tool to transition from the military to the civilian workforce.

With the War fast approaching its seventh year, veteran educational benefits have not been adjusted to reflect the cost of an education.  Almost daily a new media article about the failure of the GI Bill to pay for veterans education can be found nullifying what used to be the U.S. Department of Defense's (DoD’s) most effective recruitment tool, the most recent of which aired last night on the News Hour with Jim Lehrer.  We have been down this weary road before.  DoD is lowering recruitment standards and the value of the GI Bill continues to falter.  We ask that Congress be proactive in their approach to veterans, the military, and our future. 

I will now briefly address the individual programs.  The Incarcerated Veterans Transition Program (IVTP): the VFW is supportive of the spirit of the Incarcerated Veterans Transition Program but we need to see assurances of its effectiveness.  If DOL can substantiate that IVTP has been effective in helping veterans stay out of prison and/or jail, VFW supports it.  The Uniformed Services Employment and Reemployment Rights Act, USERRA: in regards to USERRA, VFW appreciates the vigor that the four departments, DOJ, OSC, DoD, and DOL have taken in ensuring that veterans are not discriminated against based on military status.  The VFW agrees with recent testimony from GAO’s Brenda Farrell that suggests Congress make a single entity accountable for maintaining visibility over the entire USERRA complaint resolution process.  Designating one single entity would, in GAO’s view, enhance efforts to improve overall program results.  The Demonstration Project on Adjustable Rate Mortgages: the VFW is happy to support legislation that would make permanent the authority to provide increased financing opportunities under the VA Home Loan Program by allowing VA to offer conventional and hybrid adjustable rate mortgages.  The Survivor’s Independence Educational Assistance, better known as Chapter 35: the VFW strongly supports Chapter 35 educational benefits for eligible dependents of certain veterans, and would like to see its funding continue.  The Post Vietnam Era Veterans Educational Assistance Program, VEAP: the VFW believes that this benefit is inequitable relative to other educational benefits available, and future claims should be administered as a Chapter 30 benefit.

Chairwoman Herseth Sandlin, Ranking Member Boozman, thank you for the opportunity to testify.  I would be happy to answer any questions that you or the Members of the Committee may have. 

[The statement of Mr. Brown appears in the Appendix.]

Ms. HERSETH SANDLIN.  Mr. Brown, thank you.  Mr. Bowers, you are now recognized for five minutes.

STATEMENT OF TODD BOWERS

Mr. BOWERS.  Madam Chairwoman and Members of the House Veterans’ Affairs Committee Subcommittee on Economic Opportunity, on behalf of the Iraq and Afghanistan Veterans of American and our tens of thousands of members nationwide, I thank you for the opportunity to testify today regarding expiring VA programs.  In the interest of time I will limit my testimony to the Department of Labor’s Veterans Employment and Training Services, or also know as VETS Program. 

IAVA is a proud supporter of the Department of Labor VETS Program.  I have personally had the opportunity to meet with the staff members who work with this program and I continue to be thoroughly impressed with their dedication.  I have also spoken to many veterans who have benefitted from DOL programs, such as Hire Vets First.  These programs are much needed.  According to the Bureau of Labor and Statistics, unemployment among recently discharged veterans is 11.9 percent.  The rate is even higher for veterans ages 18 to 24.  Approximately 18 percent of these veterans are unemployed.  That is three times the national average.  For the 1.6 million Iraq and Afghanistan veterans returning home, employment opportunities and protections are a crucial part of their transition into civilian life.  This is also the single most effective defense in combating homelessness among our Nation’s veterans. 

The conflicts in Iraq and Afghanistan have drawn heavily on our reserve component forces.  These troops, often the breadwinners of their families, face serious economic burdens during and after deployment.  Many are business owners who face tremendous obstacles in ensuring their businesses are appropriately managed while they are gone.  One of my fellow Marines, when he was deployed to Iraq, was forced to rely on the goodwill of his community to ensure his family business did not go under while he was deployed.  He was a proud business owner, but had serious difficulties staffing his business while he was deployed.  Without funding for advertising, he was forced to turn to the media to let them know that he was still open for business. 

A Defense Department study in 2000 showed that 40 percent of Reservists lost income when they are called to active duty.  Some 12,000 formal and informal Uniformed Services Employment and Redeployment Rights Act, or USERRA, complaints were filed by National Guardsmen and Reservists in fiscal year 2004 and fiscal year 2005, according to the GAO.  IAVA has called for better outreach and a more streamlined referral service for USERRA complaints.  Currently a servicemember wishing to file a complaint is forced to move through hurdles that cross three Federal agencies and an onslaught of paperwork.  We also support tougher enforcement of USERRA protections and believe that employers who consistently violate USERRA should be barred from eligibility for Federal Government contracts and face civil and criminal prosecution.  In addition, the GAO has outlined a series of recommendations regarding USERRA claims referrals which we hope the Committee will seriously consider in any reauthorization of the OSC referral program. 

Serving your country should not mean sacrificing your civilian livelihood.  Troops returning from Iraq and Afghanistan deserve the best possible employment protections.  We thank this Committee for their hard work to support and protect our citizen soldiers.  I will be more than happy to answer any questions at this time. 

[The statement of Mr. Bowers appears in the Appendix.]

Ms. HERSETH SANDLIN.  Thank you, Mr. Bowers.  Colonel Vargas, thank you for being here.  We look forward to hearing from you.  You are recognized for five minutes.

STATEMENT OF COLONEL FELIX C. VARGAS, JR., USAR (RET.)

Colonel VARGAS.  Thank you, Madam Chairwoman and distinguished Members of this Committee, the American GI Forum appreciates very much this opportunity to present its views today on the issues before you.  My name is Felix Vargas.  I am a Vietnam veteran, and a veteran of conflicts in Central America, and in the Balkans during my time as a diplomat.  I wish today to acknowledge the presence of our National Commander, Mr. Antonio Morales, who flew in from Dallas to join me for this.

I want to say just briefly that the American GI Forum is a congressionally Veterans Service Organizations (VSO) founded sixty years ago by Dr. Hector P. Garcia to represent the interests and concerns of American war veterans of Hispanic origin, many of whom were denied their benefits at the conclusion of the Second World War.  My father and others were among them.  We are here today to add our support to the continuation of important veterans support programs currently managed by the Departments of Labor and Veterans Affairs.  In the interest of time, I will talk just about three of them. 

First, the Incarcerated Veterans Transition Program, in our view, has provided invaluable assistance to incarcerated veterans to retrain and reenter the workforce.  The American GI Forum Residential Center for Homeless Veterans in San Antonio has worked with many such veterans, and it projects that tens of thousands of incarcerated veterans are to be released annually for the foreseeable future.  The demonstration project has proved successful and I think we will see that in the numbers presented by the Department of Labor.  We recommend that the Congress make permanent this program and provide additional funding, enabling it to reach more communities.  We fear that without this program, the problem of homelessness, which is already at an alarming rate, will be exacerbated. 

I wish you to know that my home State of Washington has taken an important step to help these veterans.  Working closely with VSOs, the State has issued a booklet titled, "An Incarcerated Veterans Guidebook for Washington State."  It provides veterans important information on the resources and programs that are available and to which the veteran can connect upon his release.  In fact, the booklet has proven so successful that other States have used it as a model for their own guidebooks. 

Again, we would like to see this program continue and we believe it needs to be authorized.

Secondly with respect to the Department of Labor’s Veterans Employment and Training Program, VETS, we see this as a pillar in the support structure for veterans.  There is no greater assistance that can be provided to our returning warriors than job related training linked to follow on employment.  We understand, Madam Chairwoman, that the issue before you concerns extension of the demonstration project allowing both the Office of Special Counsel and Labor to share the work of the processing the Federal claims filed under USERRA.  We have no view on the division of labor.  Our interest here is limited to seeing that aggressive enforcement of USERRA is carried out across the board by the U.S. Government.

Thirdly, the Apprenticeship and On the Job Training Program run by Veterans Affairs.  This provides veterans and their immediate family a great incentive to achieve a coeducational objective.  At a time when we see signs of an imminent recession in our country, and the problems that you have noted in the news article that you saw, it is important that we not lose sight of the contribution that this program makes in battling unemployment in a weakened economy.  This program is about helping veterans and their families to work and learn while they prepare to fill jobs in both the private and public sectors.  We note that the law that increased the OJT payments to 85 percent has expired here at the end of the year, and that without new legislation the rate now drops to 75 percent.  We urge you to extend and make permanent the OJT payment rate of 85 percent.  You should not allow this rate to revert back to 75 percent.  Our veterans who depend on these payments are facing daily increases in housing and other cost of living expenses.  They need every cent that can be provided under this program.

The other comment I would make here, Madam Chairman, is that you certainly should consider offering tax incentives to companies who agree to participate in the apprenticeship program.  We know that there are all too few companies who do participate.

And so, Madam Chairwoman, the American GI Forum considers the continuation of these programs before your Committee to be a reflection of your strong support for our veterans and their families.  Taken as a whole, they go a long way to honoring the commitment made to our men and women who have served honorably in the military.  I thank you for allowing us an opportunity to address you today.

[The statement of Colonel Vargas appears in the Appendix.]

Ms. HERSETH SANDLIN.  Thank you, Colonel, and thank you to all of our witnesses on this panel.  I would like to start off with a few questions as a follow-up to Mr. Tully’s testimony on USERRA specifically.  Because a couple of you mentioned, I think Mr. Brown and Mr. Bowers, both of you specifically mentioned the importance of streamlining this process, and maybe having one single entity or charged with the USERRA complaint resolution process.  Do either of you, or Mr. Chamrin, Colonel Vargas, do you have some ideas on which entity is best positioned to do this?  Do you have other suggestions on how to streamline the process based on folks you are familiar with, members of your organizations?  Do you have any specific comments in response to Mr. Tully’s testimony and some of the suggestions he had?  Mr. Brown, if you want to start and then Mr. Bowers?

Mr. BROWN.  Thank you, Congresswoman.  The idea behind streamlining the process as it is right now between the different departments is, what I think you are seeing a lot of, as Mr. Tully kind of outlined, is there is no clarity, there is a lot of bouncing around between the different departments.  Between an individual veteran, when he comes into the system he might come in into DOL and then get referred to OSC, and there is no direct individual oversight for that veteran.  Or if something does need to be streamlined or expedited, who do they go to?  And there is just really not a lot of clarity to the process. 

Ms. HERSETH SANDLIN.  Are we speaking specifically about individuals who have been employed by Federal agencies?

Mr. BROWN.  My understanding is actually both.

Ms. HERSETH SANDLIN.  Okay.

Mr. BROWN.  Both individuals within State entities and individuals within Federal agencies.

Ms. HERSETH SANDLIN.  So your thought would be, look, even if there are multiple, even if there is a primary referral to OSC, or if it is DOL VETS, or if the veteran is being assisted by someone from a private law firm that there should be someone in the Department of Veterans Affairs or someone somewhere that helps oversee the whole process so it just does not get stuck somewhere for that veteran?

Mr. BROWN.  Correct.  And also so that it doesn’t just get bounced to another department. 

Ms. HERSETH SANDLIN.  Okay.  Mr. Bowers? 

Mr. BOWERS.  Well, I would start off by saying that I think Mr. Tully’s testimony was very powerful because it shows that there are definitely gaps in the system.  The referral system, as it is set up right now, is extremely complex.  I think it almost defines the phrase of having to deal with red tape.  With that said, as I mentioned before, I have had the opportunity to work with a lot of folks over at the Department of Labor VETS Program and all of them wake up every morning with the intention of taking care of the veterans that they so rightfully represent.  They face tremendous burdens as staff, and it is very difficult for them to take care of their own cases with this continuous referral system that they have to deal with. 

What we sort of look at would probably be the most effective measure would be to divide these responsibilities amongst the agencies.  Now in no way, shape, or form, am I going to step up and say I am the expert to say, which agencies would best handle these issues, but that might bring some streamlineness to the way the system is currently handled.  I have personally had some involvement with the Employers Support of the Guard and Reserve and I completely agree with Mr. Tully that it is an incredible organization.  They are one that has really helped out a lot of veterans and the idea of having a level of oversight into watching these claims, and I would almost go as far as to say it may be worth this Committee’s time to think about sort of looking at the program for the next year, review and requiring a report at some point to be able to see the effectiveness of some of the changes that will come about.  I think that would be extremely effective because as it stands right now it is really hard.  We rely tremendously on the Government Accountability Office’s numbers and what they have seen, and also Mr. Tully’s testimony speaking about, you know, the percentage rates that he has had.  But I think we need to take a real good in depth look at the effectiveness of the program and step forward with it. 

Ms. HERSETH SANDLIN.  Well, I appreciate your thoughts here.  Let me get some clarification before turning over to Mr. Boozman.  Do you sense with the people that you have worked with at DOL that it is the complexity of the referral process?  Or are there other factors coming into play that have resulted in percentages that are not as favorable as we have seen from the GAO report and Mr. Tully’s testimony?

Mr. BOWERS.  I think it is the complexities of the referral process, I agree with you there, and also the tremendous increase we have seen of USERRA violations that has come up since these conflicts have started.

Ms. HERSETH SANDLIN.  Is it a staffing issue as well?

Mr. BOWERS.  I believe that, I have to say, you know, as we have seen in many realms, I believe that they are, yeah, are being pushed.  They have got a lot of cases that they are dealing with with limited resources, and that is why as I say the staff they wake up every morning, but people can only handle so much.  There is only so much an amount of a caseload that they can handle and continue their effectiveness.

Ms. HERSETH SANDLIN.  Is it because they are handling cases that are not just in Federal agencies and the Federal Government?  They are handling any violation, any complaint—

Mr. BOWERS.  Yes.

Ms. HERSETH SANDLIN.  —whether that occurred with a State agency, private-sector employer, etcetera?

Mr. BOWERS.  Yes, ma’am.  And one of the, one of the things I would like to bring to this Committee’s attention is that on Sunday I had the opportunity to meet with representatives from all of the Ve