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Hearing Transcript on Uniformed Services Employment and Reemployment Rights Act and Servicemembers Civil Relief Act Issues.
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UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT AND SERVICEMEMBERS CIVIL RELIEF ACT ISSUES
HEARING BEFORE THE SUBCOMMITTEE ON ECONOMIC OPPORTUNITY OF THE COMMITTEE ON VETERANS' AFFAIRS U.S. HOUSE OF REPRESENTATIVES ONE HUNDRED TENTH CONGRESS SECOND SESSION AUGUST 18, 2008 SERIAL No. 110-101 Printed for the use of the Committee on Veterans' Affairs
U.S. GOVERNMENT PRINTING OFFICE For sale by the Superintendent of Documents, U.S. Government Printing Office
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CORRINE BROWN, Florida |
STEVE BUYER, Indiana, Ranking |
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Malcom A. Shorter, Staff Director SUBCOMMITTEE ON ECONOMIC OPPORTUNITY
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public hearing records of the Committee on Veterans' Affairs are also published in electronic form. The printed hearing record remains the official version. Because electronic submissions are used to prepare both printed and electronic versions of the hearing record, the process of converting between various electronic formats may introduce unintentional errors or omissions. Such occurrences are inherent in the current publication process and should diminish as the process is further refined. |
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C O N T E N T S
August 18, 2008
Uniformed Services Employment and Reemployment Rights Act and Servicemembers Civil Relief Act Issues
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. Office of Special Counsel, James P. Mitchell, Chief of Staff/Director of Communications
Prepared statement of Mr. Mitchell
U.S. Department of Labor, John M. McWilliam, Deputy Assistant Secretary, Veterans' Employment and Training Service
Prepared statement of Mr. McWilliam
American Legion, Department of Arkansas, William Vines, Commander, Post 31
Prepared statement of Mr. Vines
Arkansas National Guard:
Major General William D. Wofford, Adjutant General
Prepared statement of General Wofford
Captain Thomas Lee, Staff Judge Advocate
Prepared statement of Captain Lee
Arkansas University Small Business Development Center, Arkansas State University, State University, AR, Herb Lawrence, Center Director
Prepared statement of Mr. Lawrence
Employer Support of the Guard and Reserve, Don Morrow, Chairman, Arkansas Field Committee
Prepared statement of Mr. Morrow
Merritt, Lieutenant Colonel Michael D., Deputy Brigade Commander, 142d Fires Brigade, Arkansas Army National Guard
Prepared statement of Colonel Merritt
Smith, Paige, Fayetteville, AR, Family Readiness Coordinator for Headquarters 142d Fires Brigade, Arkansas National Guard
Prepared statement of Ms. Smith
MATERIAL SUBMITTED FOR THE RECORD
Post-Hearing Questions and Responses for the Record:
UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT AND SERVICEMEMBERS CIVIL RELIEF ACT ISSUES
Monday, August 18, 2008
U. S. House of Representatives,
Subcommittee on Economic Opportunity,
Committee on Veterans' Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 9:10 a.m. at Northwest Arkansas Community College, Student Center Room 108AB, One College Drive, Bentonville, Arkansas, Hon. Stephanie Herseth Sandlin [Chairwoman of the Subcommittee] presiding.
Present: Representatives Herseth Sandlin and Boozman.
OPENING STATEMENT OF CHAIRWOMAN HERSETH SANDLIN
Ms. HERSETH SANDLIN. Good morning, ladies and gentlemen.
The Committee on Veterans' Affairs Subcommittee on Economic Opportunity hearing on the Uniformed Service Employment and Reemployment Rights Act (USERRA) and the Servicemembers Civil Relief Act (SCRA) will come to order.
I'd like to thank Ranking Member John Boozman for inviting us here today as we conduct this official hearing in his home State. It is great to be back in the Third District of Arkansas. As many of you may recall, under the leadership of then Chairman Boozman, the Subcommittee on Economic Opportunity held a hearing here in 2006, in which we were able to receive testimony from his constituents about the importance of the Transitional Assistance Program and education benefits for the total military force.
We've also had an opportunity to take testimony from the Adjutant General on education benefits. As you may also know, we have made substantial improvements in the GI Bill for our servicemen and women. I have enjoyed working with Congressman Boozman on this Subcommittee, the full Committee and other opportunities to work together in the Congress with his staff, who I want to thank here in the District, as well as our Committee staff that have traveled with us here today from Washington. Of course, I would like to thank our hosts for today, all of the people here at Northwest Arkansas Community College for giving us this wonderful venue to host this field hearing today as we continue to work together to help our Nation's veterans.
I also want to thank Congressman Boozman for his continued strong bipartisan support for our Nation's veterans and his exceptional leadership, for his constituents and for all of our servicemembers across the country. He has been kind enough to travel to South Dakota to hear from some of my constituents. We also held a hearing earlier this year in Indiana. This is our third field hearing this year, and we hope that the testimony we take today will provide us the information and some of the ideas to continue to work to ensure a smooth transition, especially in the area of employment and reemployment rights for our servicemembers.
I look forward to hearing from our guest panelists whose testimony will focus on employment and reemployment rights for servicemembers and veterans. As many of you know, the Uniformed Services Employment and Reemployment Rights Act and the Servicemembers Civil Relief Act were both enacted into law to provide our activated servicemembers with economic protections while serving one's country.
In the past, we've heard stories and anecdotal evidence from returning servicemembers and veterans as they've faced discrimination as a result of their service to our Nation. While violations of these rights by employers may, at times, be intentional, some of these violations have also been unintentional because there are many employers who do not understand USERRA and SCRA rights. Regardless of whether these violations are intentional or unintentional, veterans rights should be protected at all times.
The Subcommittee has held hearings on these important laws and recently passed H.R. 6225, the "Improving SCRA and USERRA Protections Act of 2008," in the House of Representatives. If signed into law, this legislation would ensure that equitable relief is available to all USERRA victims when appropriate; protect the student servicemember by capping student loan interest at six percent during deployments; require institutions of higher learning to refund tuition and fees for unearned credit and, in addition, guarantee our servicemembers a place when they return to school.
The legislation would also provide a servicemember 13 months to begin paying their student loans after an activation should they decide not to return to school immediately. It would amend the SCRA to cover service contracts to allow our men and women in uniform with deployment orders to more easily terminate or suspend service contracts without fee or penalty. It would also amend SCRA to allow a military spouse to claim the same State as the servicemember with regard to State and property taxes and voter registration. Furthermore, the Chairman of the full Committee, Bob Filner, introduced H.R. 4883 to amend SCRA to provide for a limitation on the sale, foreclosure or seizure of property owned by a servicemember during the one-year period following the servicemember's period of military service.
Unfortunately, for too many of our servicemembers returning from deployments, they're finding themselves in a predicament where existing laws might not be sufficient to protect them. Laws are not properly enforced or existing laws need to be updated to meet the needs of today's servicemembers. I look upon today's hearing as an opportunity to gather more insight into these concerns. I mentioned, I look forward to working with Congressman Boozman and other Members of the Subcommittee as we continue to work diligently to provide the necessary safeguards to protect our servicemembers and veterans as they transition to civilian life.
[The statement of Chairwoman Herseth Sandlin appears in the Appendix.]
Ms. HERSETH SANDLIN. I would now like to recognize the distinguished Ranking Member, Congressman John Boozman, for his opening statement.
OPENING STATEMENT OF HON. JOHN BOOZMAN
Mr. BOOZMAN. Thank you very much. Let me first thank the Community College for providing the venue allowing us to be here and all of their hospitality. It's a real pleasure always to work with Becky Paneitz and her staff, who do such a very, very good job. I will also want to begin by thanking Ms. Stephanie Herseth Sandlin, the Chair of the Subcommittee on Economic Opportunity, for holding this hearing. You hear a lot in the press these days about the partisan bickering in Congress and in Washington, and how we're not capable of doing anything.
But I'm very fortunate that when I was Chair of the Subcommittee, Ms. Herseth Sandlin was my Ranking Member and did a tremendous job. I'd like to have the job back, but, like I say, I couldn't ask for a better Chairman.
She works in a very bipartisan manner and looks to do both what's appropriate for veterans, what's best for veterans and, yet, is very mindful as to how we spend our tax dollars in the appropriate way. I also appreciate not only her, but her staff, who work very, very hard and also are mindful of the same things, as is my staff.
Members of the National Guard Reserves continue to bear a significant load in the Global War on Terror. In Arkansas alone, over 11,200 members of the National Guard have been mobilized since 9/11, and there are over 3,000 currently deployed overseas. They have conducted the full spectrum of operations in the Global War on Terror. For example, the 213th Area Support Medical Company treated over 20,000 patients in Iraq, and the 875th Engineer Battalion cleared 1,244 explosive devices. Our aviation units perform every kind of mission from Medivac to air control. Our military police and related units provided the security and civil support. They are warriors all and I thank them very much for their service.
Fortunately, we have laws like the Uniform Services Employment and Reemployment Rights Act or USERRA, meant to ensure that when someone returns from military life, military service, they find their job waiting for them.
We also have a law called the Servicemembers Civil Relief Act, meant to protect veterans and their families in a wide variety of ways, ranging from interest rates to auto leases and taxes. Unfortunately, sometimes there are violations of the law, usually through ignorance of the law and, occasionally, through outright willful disobedience. We are here today to listen to several witnesses, who will describe the effectiveness of these laws and, hopefully, to offer suggestions on how we might improve them.
Finally, Madam Chair, I'm sure you will agree that we seldom recognize the contribution of the spouses, who keep the home running while the servicemember is called away. In the fact of great uncertainty, our military spouses provide the members with the strength to do their duty and the faith that they will be welcomed home once their service is done. We cannot ask for more, but they always seem to exceed our expectations. Therefore, Madam Chair, I think U.S. Department of Defense (DoD)—perhaps we should look into some sort of formal recognition for their contributions to the Nation's defense.
Once again, I thank the Chair for her consideration. I look forward to hearing our witnesses and I appreciate all of you. The people that are going to testify, I appreciate you being here and I know it's a hassle, but this is very, very important, especially with a Nation at war, again, talking about a subject that's so important, reintegrating our troops as they get home. Thank you, Madam Chair.
[The statement of Congressman Boozman appears in the Appendix.]
Ms. HERSETH SANDLIN. Thank you, Mr. Boozman. I would like to welcome all of the witnesses who are testifying before our Subcommittee today and I would like to remind each of you that your complete written statement has already been made part of the hearing record. I'd ask you to limit your opening remarks to five minutes so that we have plenty of time for follow-up questions that Mr. Boozman and I may have for all four of the panels that we'll be hearing from today.
As Mr. Boozman mentioned, the role, dedication and sacrifice of spouses and families over the last five years during the deployments and the Global War on Terror, at times, have not received the recognition that they deserve. Either the formal recognition or the types of insights that we believe spouses are able to provide, which is why, during these field hearings in Indiana, South Dakota, and Arkansas, we have made a point of ensuring that spouses are a part of each of the hearings and each of our first panels.
With that said, I would like to invite our first panel up to the witness table. We have Ms. Paige Smith, a military spouse and Family Readiness Coordinator for Headquarters 142nd Fires Brigade and Mr. Michael Merritt, a member of the National Guard. I want to thank you both for joining us today. We look forward to your testimony.
Ms. Smith, I will start with you. I think you have to pull the microphone a little bit closer so that we can hear you and the folks in the audience can hear you. We will now recognize you for five minutes.
STATEMENTS OF PAIGE SMITH, FAYETTEVILLE, AR, FAMILY READINESS COORDINATOR FOR HEADQUARTERS 142D FIRES BRIGADE, ARKANSAS NATIONAL GUARD (SPOUSE OF NATIONAL GUARD MEMBER); AND LIEUTENANT COLONEL MICHAEL D. MERRITT, DEPUTY BRIGADE COMMANDER, 142D FIRES BRIGADE, ARKANSAS ARMY NATIONAL GUARD
Ms. SMITH. Thank you. Good morning, Chairwoman Herseth Sandlin, distinguished Members of the Subcommittee. I'm Ms. Paige Smith, and I'm testifying in my position as Family Readiness Coordinator for Headquarters 142nd Fires Brigade and wife of a recently deployed and returned soldier, Sergeant First Class Joseph Smith. My testimony today reflects my personal views and does not necessarily reflect the views of the Army, the Department of Defense or the Administration. I appreciate the opportunity to appear before you and submit testimony relative to issues pertaining to family readiness in the Arkansas Army National Guard.
First of all, I would like to address the Servicemembers Civil Relief Act and the six percent cap on the interest rate on pre-mobilization debt for mobilizing Guard members. When my husband's unit deployed, I know firsthand that all of our soldiers were entitled to have all pre-mobilization debt reduced to a maximum of six percent interest rate. And it's been my experience as a family readiness coordinator that the majority of soldiers involved in this mobilization received debt relief due to their creditors supporting the war effort and creditors reducing the interest rates.
I know of no instance that a creditor did not reduce our soldiers' pre-mobilization debt, interest rates; and for that we are grateful. In several State courts, to include Arkansas, incorrectly held that SCRA did not apply to domestic relations. This left soldiers who were custodial parents in a position of choosing between following military orders and custodial rights. This was the exact dilemma that SCRA intended to prevent. I would like to thank the Committee for their hard work to ensure that our soldiers are not in a position of choosing between their families and their country. This was one of the most pressing issues of SCRA and should be resolved.
Secondly, I would like to address the Family Medical Leave Act (FMLA), which was amended January 28th, 2008, to implement new military family leave provisions. This provision requires the Secretary of Labor to issue regulations defining any qualifying exigency before the regulation takes effect. Washington State and California have each passed a Spouse Leave Law, in which employers must provide a certain amount—Washington is 15 days and California is 10—of unpaid leave to spouses of military members who have been notified of an impending call or active-duty order, on leave from a deployment or have returned home from deployment. If this law would be passed for all States, it would allow all military spouses that do not fall under FMLA to have the same rights as those that do. And I would ask your assistance in implementing Federal legislation to address this issue that affects the majority of our soldiers during pre-mobilization and post-mobilization.
I would like to conclude my testimony by thanking you for your hard work, the Congressional staff, in all areas concerning soldiers and family care issues. I appreciate the opportunity to testify before this Subcommittee and represent all military spouses and their families of the 142nd Fires Brigade of the Arkansas Army National Guard.
[The statement of Ms. Smith appears in the Appendix.]
Ms. HERSETH SANDLIN. Thank you, Ms. Smith.
Mr. Merritt, you are now recognized for five minutes.
STATEMENT OF LIEUTENANT COLONEL MICHAEL D. MERRITT
Colonel MERRITT. Good morning, Chairwoman Herseth Sandlin, Congressman Boozman, distinguished Members of the Subcommittee. I'm Lieutenant Colonel Michael Merritt, Deputy Brigade Commander for 142d Fires Brigade, Arkansas Army National Guard. I appreciate the opportunity to appear before you and submit my testimony relative to my experiences as a member of the Arkansas Army National Guard and as an employee of Fortune 500 companies, specifically, issues related to my legal rights under USERRA.
Let me begin my giving you a brief background on my military and civilian career past. I received my commission as a regular Army officer in 1984, and spent four years on active duty before leaving active duty and beginning a civilian career and joining the Army National Guard. Over the course of 19 years, I've been exposed to the impacts of military service and the Reserve component from both the employers' perspective, as well as the servicemembers. For 17 of those 19 years, I've been in the human resource profession, with 15 of those years as a human resource manager.
I've held positions in locations that have had as few as a hundred employees to as many as 1,100. Some of those companies had a significant number of Reserve component employees and others had very few. As a National Guard officer with 19 years of service and having recently returned from deployment in support of Operation Iraqi Freedom as an artillery battalion commander, I've seen the impact of military service on the employer-to-employee relationship.
My personal experience has always ended positively, as have most of the experiences of my soldiers that I have been made aware of. Having made that statement, I must admit the greatest contributing factor to those positive outcomes has come more from the desire of employers to take care of their servicemember employees than out of a in-depth knowledge of or desire to comply with USERRA requirements. The concerns that I have heard from my soldiers have come more from perceived lost opportunities during deployment or concern that commitment to the National Guard will somehow hurt their ability to advance in the future. It is my responsibility to review the questionnaires completed by soldiers that have decided not to reenlist upon reaching the end of their term of service. And, by far, the two most common responses are family commitments and/or employment conflicts.
My only personal experience that has led to reference to USERRA requirements came at the end of my recent deployment to Kuwait. My total deployment time was 18 months, during which time my position as human resource manager was backfilled with another employee. As my tour of duty was getting close to ending, I was told that another HR manager position was available in another city, and that I should take this position as a lateral move. This would have required relocating my family shortly after returning from a long deployment and I had no desire to put my family through that at such a time. The positive turn came when I reminded my employer about USERRA requirements and they quickly recognized both the regulatory situation and my personal desire not to move and promised my original position back. I don't really think it was due to USERRA, but we did talk about it and I think doing the right thing was what their objective was.
After returning to the United States, I made the decision to leave my employer and become self-employed. My decision was not made because of this one small issue, but rather, my desire to continue seeking higher levels of responsibility within the National Guard and to be able to do that under my own terms without the institutional pressure, that I admit, was mostly self-imposed. In many ways, my previous employers have exceeded legal requirements when dealing with my military service obligations. Most common was making up any pay or benefit differential that might exist between military pay and benefits and those of my employer.
In conclusion, it has been my experience that doing the right thing has been the objective of all my employers and USERRA only came into play as a reference for making those right decisions. As a human resource professional, I will say that people in that field are not as familiar with USERRA as they should be. You might be able to credit that to the lack of challenges made by returning servicemembers under USERRA. Trusting that your employer will meet the intent of the law and that no negative repercussions, whether subtle or blatant, will jeopardize your career does cause some anxiety for the citizen soldier. A better understanding of USERRA, a review of company policy for compliance and a communication plan could help prevent misunderstandings and alleviate a lot of those anxieties.
I would like to express my appreciation for being able to address the Committee. I think it's—USERRA is a wonderful thing and I'm much appreciative of having it in my—at my back. Thank you.
[The statement of Colonel Merritt appears in the Appendix.]
Ms. HERSETH SANDLIN. Thank you, Mr. Merritt.
I will now recognize Mr. Boozman for questions he may have of our witnesses.
Mr. BOOZMAN. Thank you and we appreciate you, Ms. Smith, for being here and your testimony. It's very helpful and all you're doing, not only in the support of your own family, but helping otherwise. My dad did 20 years in the Air Force, and I know it's tough when mom or dad is away for extended periods. It's hard on the family, and so it's such an important thing.
You mentioned the FMLA. Can you give us, a real life story as to how that would relate in regard how you feel like that affects the family?
Ms. SMITH. I can tell you as far as that relates to me personally. My situation was the fact when—when my husband returned home on leave, which was close to the end of his tour of duty, I was opening up a new hotel, the Double Tree Guest Suites in Bentonville. And I knew my responsibilities there. I was the only sales manager and still am the only sales manager. They were kind enough to give me a week off when Joey came home and they did that with pay. And I didn't have vacation at the time, so I appreciate them for that.
At the same time, I—in relation to me and other wives that I've heard, if we can—they need the opportunity to have that time off without it being held against them or them having to take vacation. I think it's the right thing to do for our military families.
Mr. BOOZMAN. Very good.
Colonel, you mentioned that in the questionnaires, family and jobs were at the top. One of the things that I know I've talked to about—really, for the last year or two, one of my concerns has been that with the deployments that we're having so many, guys—men and women being gone so much that we get the—we do a pretty good job of trying to alert employers. And that's what this hearing is all about. It's trying to prevent future problems from happening, along with solving the problems that we have.
But a real concern that perhaps, instead of having a problem with them being—coming back, but rather, they just don't hire them in the first place; that they know that they're National Guard and that small business, which is the backbone of the country, which is—most of our businesses with few employees, who spend the time to train somebody and in the back of your mind as an employer thinking, you know, this person's going to be gone for a year or 15 months or whatever, that that might be a real problem boding into the future. Can you comment on that? Is that something that we really need to be concerned about?
Colonel MERRITT. Yes, I believe it is going to be an issue and I don't know that it will, necessarily, always be, you know, a blatant move, but I know on job applications years ago, they would always ask, did you have prior service.
And, they would—you would put that down and it used to be you would jump at the opportunity to be able to say, Yes, I am, or Yes, I have. And now, you do have second thoughts as to whether you want to put that on there or not for that very reason. I don't think many corporations will go out there with that intent, but it is a seed in the back of the mind that you would have to take into consideration.
And the small company in the larger percentage of those people represented in the work force, obviously, the tougher it is for them. But I think it is something that we're going to have to watch in the future to see what impacts that it does have.
I haven't seen it in the short term, but long term, it could definitely become more of a factor as these deployments continue.
Mr. BOOZMAN. Was your unit, prior to deployment, was it briefed on USERRA.
Colonel MERRITT. Yes, sir, we were.
Mr. BOOZMAN. And you felt like that they did a good job in that regard.
Colonel MERRITT. Yes, sir.
Mr. BOOZMAN. Very good. Thank you all very much. Thank you, Madam Chair.
Ms. HERSETH SANDLIN. Thank you, Mr. Boozman.
Just to clarify then, Ms. Paige. Given your circumstances and how flexible your employer was in giving you that time when your husband was home on leave, and maybe conversations with other military spouses, perhaps, that same flexibility hasn't occurred for everyone. Either during that time on leave; or would you agree, perhaps, just as importantly, during that period of readjustment when they return home from the deployment. Do you have any thoughts on how long he was home on leave for more than a week?
Ms. SMITH. Yes, ma'am.
Ms. HERSETH SANDLIN. —right.
What are your thoughts in terms of the amount of time without having to use vacation, without having it held against the spouse and the employment situation anyway? Take, for example, the return from deployment—
Ms. SMITH. Uh-huh.
Ms. HERSETH SANDLIN. —is a week a sufficient amount of time? Do you think two weeks would be more beneficial for that readjustment period, particularly, if there are young children at home?
Ms. SMITH. Yes, ma'am, I think two weeks would be a better time frame. And with every family, it's different. Every soldier comes back different. Not all of our circumstances are the same, so to speak. We don't have small children at home. We do have a young one at home, but she's 17. I do know that the mothers that have the children that are babies where they had their children while their husbands were gone, which we had a couple of those, I think it's very important to have a longer period of time to just get to know each other again, quite frankly, without worrying what's going to happen at work.
Ms. HERSETH SANDLIN. Uh-huh.
Ms. SMITH. And I do know that I will say there are companies that have supported the soldiers and their families. There are companies that have allowed other employees to give their comp time—
Ms. HERSETH SANDLIN. Uh-huh.
Ms. SMITH. —to the soldier's spouse so that they could have more time with them because they didn't have all the time, you know, on their own. So it's not all a bad thing. There are companies out there that try to do the right thing, but if we could get it—you know, legislation passed through where it was a definite. And if they didn't need the two weeks, then they wouldn't have to take it—
Ms. HERSETH SANDLIN. Uh-huh.
Ms. SMITH. —but to have it there would be a blessing.
Ms. HERSETH SANDLIN. Okay. I appreciate your insights.
Mr. Merritt, in response to Congressman Boozman's question, they were briefed on USERRA.
Did the Family Readiness Group get a briefing on the USERRA rights of the loved one who's being deployed?
Ms. SMITH. Yes, we—
Ms. HERSETH SANDLIN. Okay.
Ms. SMITH. —we do.
Ms. HERSETH SANDLIN. I appreciate your knowledge and familiarity and, again, your perspective on the Servicemembers Civil Relief Act, USERRA and what you've offered us here today. Thank you, again, very much.
Ms. SMITH. Thank you.
Ms. HERSETH SANDLIN. Mr. Merritt, you said you've spent 15 years as a human resources professional.
Colonel MERRITT. Yes, ma'am.
Ms. HERSETH SANDLIN. My hunch is that there are a lot of other human resource professionals that aren't nearly as familiar with USERRA rights as you are and you've recognized that in your testimony. Why do you think that is and what do you think we can do to help better inform companies and human resource professionals, in particular, about USERRA rights?
You have made a few recommendations in your testimony with regard to the review of the corporate policies. Perhaps one the reasons that certain employers are not familiar is the lack of challenges that certain servicemembers may not be bringing that help inform what those reemployment and employment rates are. Would you have any suggestions for what more could be done to better familiarize companies and human resource professionals, in particular, with USERRA?
Colonel MERRITT. There are some organizations, you know, for human resource professionals that probably would be a good impact; to contact human resource people and say, hey, here's something that's out there that is important to you. I understand most of you probably, you know, exceed the regulations, but, you know, here's something that probably would be smart to spend some time on.
I don't know exactly how legally you could push that. I also think being a little more inclusive with employers during the mobilization process might be something that we could work towards. You know, we do a pretty good job; getting better with the families and I think we've always done a pretty good job with the soldiers, so employers might be the next—you know, the next step to pull them into that process at some level.
But, again, I think it's—everybody's busy and it becomes somewhat of a squeaky wheel kind of situation.
And my experience with larger corporations has been USERRA has not been a problem and an issue, so therefore, I don't spend much time, you know, looking at it. But, probably, your biggest challenge will be your small employers that may not have a human resource professional, do it in-house or there's just one person that does it all. Those people would probably be the ones you would want to reach out to.
Ms. HERSETH SANDLIN. Uh-huh.
Colonel MERRITT. And, also, it might be the easier ones to pull in to the pre-mobilization orientation process, either, you know, separately or inclusive with the employee. I'm not sure which would be better. But I think there's some things that could be done to help that communications process.
The soldiers being smart on the subject is probably one of your best tools because, you know—and, obviously, you're looking after your own interest. You will use your knowledge to help you with your career. But I think if the employers were, maybe, a little more knowledge on the front end, you would avoid a lot of that.
Ms. HERSETH SANDLIN. Your assessment is it's more a lack of familiarity with the law than the policies, as written, being unclear? I mean, once they know the law is out there. But, maybe, for the smaller employers, the—
Colonel MERRITT. Yes.
Ms. HERSETH SANDLIN. —explanatory is important, especially, as you said, if they don't have a dedicated human resource professional in house.
Colonel MERRITT. That's right. Interpretation of USERRA has not been a problem that I have seen. It's just, you know, picking it up and looking at it, period; either out of not knowing it exists—and I'm sure there are some smaller employers that have that issue—but, like I said, people not thinking they have an issue with USERRA because they're doing all they can do to—well, I don't think they're doing it to do more than USERRA requires them. They're just doing what they think is right and that is in the spirit of USERRA, so they don't have that conflict.
Ms. HERSETH SANDLIN. Okay. Just one final question for you, Mr. Merritt, a general question. With your 19 years of experience with the National Guard, what is the most common problem you think that servicemembers, their spouses and families face during a deployment?
Colonel MERRITT. Well, that's a tough one. I think just the separation, in general. This deployment, you know, over those that went to Desert Storm, the communication is—that's available for soldiers now is so much better than it was; you know, the ability to call home and you sit and you know, you absorb. And we do coach people on that. I mean—
Ms. HERSETH SANDLIN. Right.
Colonel MERRITT. —you're going to hear things from your spouse, and you just kind of absorb them. There's not a lot you can do about it and you learn how to deal with that frustration. But just the ability to communicate with your spouse back home and your children has been a big plus, so it's really the separation; just tthe family structure. And it's, you know, you run across a few that'll have financial problems and some things that'll pop up because of the deployment, if you want to talk universal issues, it's just taking, you know, one of the parents out of a family and taking them away for a year, a year and a half.
Ms. HERSETH SANDLIN. Thank you.
Mr. Boozman, did you have any final questions?
Mr. BOOZMAN. Well, just one thing.
Does the Guard do any outreach as to employers concerning USERRA.
Colonel MERRITT. Employer Support of the Guard and Reserve (ESGR) is a great organization that, you know, reaches out to many. I'm not really sure of the exact size of the ESGR, but my guess is that, you know, reaching all of the employers that are affected across the State is probably a pretty big challenge. But I know they do reach out to those that they're made aware of and then they do have things that they do that pull employers in.
So ESGR is a great asset for us and has been over time. They've built those relationships. They didn't just pop up because of a deployment, you know. They've been there all along and we do everything we can to—
Mr. BOOZMAN. Uh-huh.
Colonel MERRITT. —to build the relationships with our employers. We bring them out to the field with us when we're at Fort Chaffee, and let them see what we do. And that familiarity with what we do is a big plus for them. I mean, they know, kind of—they hear what you do on the weekends, but when they get out there and they see that, you know, you really are doing a serious job, they feel like they own a little piece of that and it helps tremendously.
Mr. BOOZMAN. Very good. I thank both of you, again, for your service to our country and your dedication. Your testimony is very helpful. Thank you.
Colonel MERRITT. Thank you.
Ms. HERSETH SANDLIN. Thank you both. We appreciate your testimony and the sacrifices that you've made.
Ms. SMITH. Thank you.
Ms. HERSETH SANDLIN. We now would like to invite our second panel to the witness stand. Joining us is Major General William D. Wofford, Adjutant General of the Arkansas National Guard, and Captain Thomas Lee, Staff Judge Advocate for the Arkansas National Guard. Thank you both for being here and for providing a written testimony.
We look forward to your comments today.
General Wofford, we'll begin with you. You are recognized for five minutes.
STATEMENTS OF MAJOR GENERAL WILLIAM D. WOFFORD, THE ADJUTANT GENERAL, ARKANSAS NATIONAL GUARD; AND CAPTAIN THOMAS LEE, STAFF JUDGE ADVOCATE, ARKANSAS NATIONAL GUARD
STATEMENT OF MAJOR GENERAL WILLIAM D. WOFFORD
General WOFFORD. Chairwoman Herseth Sandlin, Congressman Boozman, I'm Major General William D. Wofford, and I'm testifying in my position as the Adjutant General of the Arkansas National Guard. And I appreciate the opportunity to appear before you and submit testimony relative to issues pertaining to National Guardsmen. As you had mentioned, my written testimony is submitted. I've got several issues that I've identified. I'd like to capture just a few of those right now in oral testimony, if I could.
First of all, I'd like to begin my testimony by thanking the Congressional staff for a very important clause in the National Defense Authorization Act of 2008 that contains an affirmative clause that court ordered stay provisions under the Servicemembers Civil Relief Act do not apply to child custody proceedings. Several State courts incorrectly held that the newly created Servicemembers Civil Relief Act did not apply to domestic relations. Congress answered that with the National Defense Authorization Act. This was one of the most pressing issues of SCRA and now appears to be resolved.
One of the issues is that when a servicemember mobilizes, they are entitled to have all their pre-mobilization debt reduced to a maximum of six percent interest rate if their income is materially affected. Yet some servicemembers in Arkansas did not receive the debt relief because often the servicemember's income is not materially affected. Now, I would like to point out that most creditors—the vast majority of our creditors are happy to comply with the SCRA and they go ahead and grant that relief without even checking on that, but that is a concern.
I'd like to mention that the continued enforcement under the Department of Justice's Civil Rights Division on SCRA issues. Servicemembers seeking help under SCRA first contact their military Judge Advocate in the Arkansas National Guard. If the Judge Advocate's office cannot resolve the matter and determines that assistance from the Department of Justice would be appropriate, it will submit a request to the Civil Rights Division of the U.S. Attorney's Office. The Division needs to continue that work. That is a very positive effort and we just would like to thank those involved in SCRA for making that possible.
I would like to mention that servicemembers' creditors, employees and landlords should be commended on the sacrifices they make to ensure that a servicemember is prepared to leave their—his civilian position and fight in the war effort. However, if a servicemember is required to pursue legal action to enforce his rights conferred by SCRA, there is no provision for recovery of expenses by attorneys that he must hire. I think that's an issue that should be addressed under the Civil Rights Act provision.
Finally, the main issue I would like to address to the Subcommittee today has to do with employment concerns of Reserve component members. Before I discuss this issue, I'd like to emphasize that our servicemembers of the Arkansas National Guard receive outstanding support from employers when they are called to duty. Even after seven years of executing the Global War on Terror, Arkansas employers continue to demonstrate tremendous patriotism and dedication to ensuring our servicemembers and their families are cared for while they're deployed. However, I would like to share a growing concern that was mentioned just previously.
Although our employers demonstrate solid support of their employees that are called to active duty, there is mounting evidence that employers are becoming reluctant to hire members of the Reserve components because of repeated, second and third, deployments. It has become apparent that those traits exhibited by the members of the Guard and Reserve that make them valuable employees, leadership, professionalism, physical condition, maturity and a can-do attitude, are no longer considered to be cost effective advantages if they're going to be deployed for 12 months every three to four years. The businessmen and businesswomen that are responsible to their superiors and to stakeholders are making hiring decisions that will best help their organization's financial bottom line and that's understandable.
For over a year, I've taken the opportunity to speak to numerous civic organizations, chambers of commerce and business leaders around the State of Arkansas about the National Guard. And I certainly expound on those outstanding qualities for hiring them. However, I also ask them one simple question. What incentives must we, as a Nation, try to develop to ensure it is profitable for employers to hire a Guardsman? I've received some valuable feedback and I'll be more than glad to address that. And I do have it in my written testimony, but I know I've run out of time.
I do want to thank you for allowing me to speak.
[The statement of General Wofford appears in the Appendix.]
Ms. HERSETH SANDLIN. Thank you, General Wofford.
Captain Lee, you're recognized for five minutes.
STATEMENT OF CAPTAIN THOMAS LEE
Captain LEE. Madam Chairwoman and Congressman Boozman, I am testifying regarding my position as the Staff Judge Advocate of the Arkansas National Guard. I thank you for the opportunity to personally appear before you and submit this testimony regarding legal issues of our National Guardsmen. I would like to take the time to explain what we do as Judge Advocates and what type of issues we see as Judge Advocates.
In the last five years, we have seen almost 10,000 servicemembers come through our legal station on their way to various deployments. I split our legal assistance services into three stages depending on the current status of the servicemember. The first stage is the pre-mobilization phase. The second stage is the post-mobilization phase. And the third stage is the demobilization phase.
The first phase, the pre-mobilization phase, before servicemembers leave Arkansas on any mobilization, they must go through a soldier readiness processing (SRP) or an Special Reporting Code (SRC). The SRP and the SRC are basically, the benchmark of the deployment process. At the SRP and SRC, we will have multiple stations where a Judge Advocate will draft the servicemember a will or a power of attorney. We also ask whether or not the servicemembers have any legal issues that may prevent them from deployment.
At that time, we also give them a packet of information. The packet includes, first, letters that they can send to their creditors asking for the creditors to reduce their interest rate to six percent; second, letters for terminating a residential lease; third, an IRS power of attorney for tax purposes; fourth, a simple letter to send to any court to stay a pending court action; and fifth, a guide on how to resolve fines and warrants. And, in addition to that, during this phase, our Judge Advocates will also talk directly to prosecuting attorneys and judges concerning our servicemembers that have pending misdemeanor charges or traffic violations in our various courts.
Phase II is the post-mobilization phase. At this time, there are, roughly, 3,000 members of the Arkansas National Guard on active military orders in the post-mobilization phase. Currently, we receive an average of 233 calls a month seeking legal assistance information. The phone calls come from servicemembers, their families, attorneys and creditors. We provide all the groups as much information as we can.
Generally, the questions are related to SCRA. In my written testimony, I provide a table regarding legal actions falling under SCRA that servicemembers of the 39th Brigade Combat Team have faced since their January, 2008 mobilization. As you can see, the most common problem is the six percent cap on interest rates. This is usually due to the creditor not understanding the law. Generally, this issue can be resolved between the servicemember and the Judge Advocate, once the creditor is aware of the law. Since the 39th Brigade Combat Team has deployed, almost a third of all legal assistance actions are regarding the six percent interests rate.
The third phase is the demobilization phase. Once servicemembers return from deployment, they will go through the legal section at the mobilization center. The most common legal issue when servicemembers return home is that someone has obtained a default judgment against them, as the local court was not aware of the servicemember deploying. The Judge Advocate will help the servicemember resolve this issue.
In conclusion, we are still looking for ways of improving how servicemembers may reach our office. This requires a team effort by the entire National Guard. Our family assistance coordinators pass out our phone numbers at military family gatherings. Our public affairs department has a Web site so if servicemembers need assistance, they can contact our office. We also have to rely on commanders like Lieutenant Colonel Merritt to pass out our information.
I appreciate this opportunity to submit this testimony. I'd like to thank you for all the hard work and services that you provide all servicemembers, not just Arkansas National Guardsmen. The Arkansas National Guard Judge Advocate General section especially thanks you for the support and services that you've provided us.
[The statement of Captain Lee appears in the Appendix.]
Ms. HERSETH SANDLIN. Thank you, Captain Lee.
General Wofford, if I could start with you. At the beginning of your oral testimony today, the issue of debt relief under the Servicemembers Civil Relief Act. You state that in a number of instances, it's not triggered because the servicemember's income isn't materially affected. Do you think we set a different standard? Is that just a standard that's too difficult for a servicemember to prove, to demonstrate?
General WOFFORD. Ma'am, I think the standard is there and I think it is fair to the creditors. The vast majority of the creditors provide the debt relief for our servicemembers. There are some creditors that understand the law extremely well and require the individual to bring in proof that their income has been materially affected, their income has been reduced, and so they have to prove that.
In some cases, for many of our Guardsmen in Arkansas, when they're called to active duty, they actually make more money than they do at their civilian jobs. Again, the vast majority of the creditors don't ask. They just go ahead and—or the creditors go ahead and allow them the six percent debt relief, but there are some that don't. And I'm not sure how to effect that because, I think, the way the law is written is fair for the employers.
Ms. HERSETH SANDLIN. Okay. Well, I appreciate you bringing a number of other issues to our attention today, the provision with regard to hiring an attorney fees is one I intend to pursue. You know, we've already looked at some other issues as it relates to equitable relief in getting injunctive relief and making sure every servicemember understands he or she is entitled to that. I think this is an important provision because of as Mr. Merritt said. I mean, if there's a lack of challenges being brought, for those that are, they are incurring expenses, generally, with the advice of counsel. I think that's an important change that we should look into with regard to SCRA.
The recommendations you make in your written testimony, as you have discussed with chambers of commerce and other employers around the State, there are about half a dozen or so recommendations.
General WOFFORD. Yes.
Ms. HERSETH SANDLIN. Do any of those stand out to you in terms of most frequently cited, that would be the most beneficial—
General WOFFORD. Yes.
Ms. HERSETH SANDLIN. —to employers?
General WOFFORD. Yes, ma'am. Madam Chairwoman, the one recommendation that seems to be common across the board, business men and women around the State, has to do with healthcare benefits—
Ms. HERSETH SANDLIN. Uh-huh.
General WOFFORD. —that if through TRICARE—or whatever means that the military provides, healthcare benefits to our soldiers—if that was common across the board for every Guardsman, those that are mobilized and those just in a drilling capacity. That is the most common benefit that they think would help them the most because that would be a benefit package they would not have to provide in civilian business.
Ms. HERSETH SANDLIN. I appreciate that. That makes a lot of sense. I know that even for some employers who are able to offer healthcare coverage, that if they're a smaller employer, I know how important it was for the servicemember to know that his family was covered—
General WOFFORD. Yes.
Ms. HERSETH SANDLIN. —during the deployment.
Captain Lee, talk to me a little bit more about the issue of the default judgments. This can be something where, especially for single servicemembers, mail is being forwarded to a parent's home. Or if they are married, but the spouse isn't familiar with getting, legal document in the mail and what all that means and doesn't have the resources to go hire an attorney to tell her what it means.
Do you have any ideas on how we can best communicate to the courts when we have mobilizations so that we're not dealing with this after the fact with those default judgments? I'm sure, especially in this part of the country, I know that some folks, even their economic interest for what they may be entitled to if they owned land and someone's making an offer for mineral rights under the land, they could face a default judgment if they don't go and contest an offer that's been made. I would imagine that this is an ongoing problem for a number of servicemembers here and elsewhere across the country.
Captain LEE. Yes, ma'am, and the Federal courts now, I believe, in a pleading, you have to state—the attorney has to state that the plaintiff or defendant is not a servicemember who is deployed.
Ms. HERSETH SANDLIN. In the Federal courts.
Captain LEE. In Federal courts. In State courts, we don't have that.
Ms. HERSETH SANDLIN. Okay.
Captain LEE. And that's, mainly, where we see different default judgment issues come up. Generally, the judges themselves never know if a servicemember is deployed unless someone tells them. And that's the issue. It's not that judges are signing court orders knowing the servicemember is deployed. They just simply don't know.
Ms. HERSETH SANDLIN. That was the point of my question. I would imagine that they wouldn't do that, but what we need are some ideas for how we can ensure that there's some communication there. I think putting the onus on the attorney in the action as it relates to the individual having to state that due diligence at the outset is something that they could find out—
Captain LEE. Yes, ma'am.
Ms. HERSETH SANDLIN. —by contacting the National Guard, by contacting the Reserve unit. That's something that will be helpful for us to pursue. Thank you.
Mr. Boozman?
Mr. BOOZMAN. Thank you, Madam Chair.
First of all, with your permission, I'd like to recognize George Westmoreland, who's here. George is the Civilian Aid to the Secretary of the Army, and does a good job of getting out in the State and just helping our soldiers in a variety of different ways, so we appreciate you being here.
General Wofford, the Chairwoman had really asked my first question and that was what did you learn? And you say you were able to elaborate on that. The other thing is, is that you guys mention that, basically, 75 percent of our guys that are getting called up are actually making more money when they're deployed than in civilian life, and yet, we're seeing these problems of financial troubles.
And one of the things that I worry about is the divorce rate that we see that's probably affected by these kinds of things. And I know that when you look at that, finances are always high on the chart as far as getting people in trouble with their marriages and things. And, I guess, my question is, is there anything we can do? Can we do a better job or can we do somewhat of a job in helping individuals as they start to deploy with some sort of financial management training. Is that available or could that be made available or—
General WOFFORD. Sure. There are a number of things that can be done. And actually, one thing that is being implemented at this time in every State is what's referred to as the Yellow Ribbon Reintegration Program. The program starts at the very beginning, when a unit is alerted; works with the family through the deployment; and then the reintegration process. And I think Ms. Smith touched on something in her testimony that I think is worth revisiting is during a lengthy deployment, for 12 months or more, the spouse that stays back here that's maintaining the family, holding the family together, becomes somewhat independent.
They—he or she realizes that they've got to become self-sufficient. They've got to be able to maintain the household. At the same time, while the soldier is deployed, most of them are in a high stress situation. The way they do business in a combat environment is it's mission focused. They get the job done, whatever it takes. And they come back to a less stressful environment; realize that the spouse is—doesn't need them as much as they used to, to make the day-to-day decisions that have to be made, which creates additional stress within the family.
I think that the reintegration program—and it boils down to communication. It boils down to education of our soldiers while they'r
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