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Witness Testimony of Captain Marshall Hanson, USNR (Ret.), Legislative Director, The Reserve Officers Association of the United States

EXECUTIVE SUMMARY 

Improvements to increase employment supported by ROA and REA follow:

Education:

  • Include Title 14 duty in eligibility for the Post 9/11 GI Bill.
  • Exempt earned benefit from GI Bill from being consider income in need based aid calculations
  • Develop a standard nation-wide payment system for private schools
  • Re-examine qualification basis for yellow ribbon program, rather than first come first serve.
  • Increase MGIB-Selected Reserve (MGIB-SR) to 47 percent of MGIB-Active.
  • Enact Uniformed Services Employment and Reemployment Rights Act (USERRA) and Service members Civil Relief Act (SCRA) protections for mobilized Guard-Reserve students to adjust interest rates on federal student loans of mobilized Reservists when the market rate drops below 6 percent.

Employer Support:

  • Continue to enact tax credits for health care and differential pay expenses for deployed Reserve Component employees.
  • Provide tax credits to offset costs for temporary replacements of deployed Reserve Component employees.
  • Support tax credits to employers who hire service members who supported contingency operations.

Employee Support: 

  • Permit delays or exemptions while mobilized of regularly scheduled mandatory continuing education and licensing /certification/promotion exams.
  • Continue to support a law center dedicated to USERRA/SCRA problems of deployed Active and Reserve service members.

Uniformed Services Employment and Reemployment Rights Act (USERRA)/Servicemembers’ Civil Relief Act (SCRA):

  • Improve SCRA to protect deployed members from creditors that willfully violate SCRA.
  • Fix USERRA/SCRA to protect health care coverage of returning service members and family for pre-existing conditions, and continuation of prior group or individual insurance.
  • Enact USERRA protections for employees who require regularly scheduled mandatory continuing education and licensing/certification and make necessary changes to USERRA to strengthen employment and reemployment protections.
  • Exempt Reserve Component members from federal law enforcement retirement application age restrictions when deployment interferes in completing the application to buy back retirement eligibility.
  • Amend SCRA to prohibit courts from modifying previous judgments that change the custody arrangements for a child of a deployed service member.
  • Encourage Federal agencies to abide by USERRA/SCRA standards.
  • Ensure USERRA isn’t superseded by binding arbitrations agreements between employers and Reserve Component members.
  • Make the states employers waive 11th Amendment immunity with respect to USERRA claims, as a condition of receipt of federal assistance.
  • Make the award of attorney fees mandatory rather than discretionary.

Veterans Affairs:

  • Extend veterans preference to those Reserve Component members who have completed 20 years in good standing, or 
  • Permit any member who has served under honorable conditions and has received a DD-214 to qualify for veteran status. 

 

 


 

 

INTRODUCTION 

On behalf of our members, the Reserve Officers and the Reserve Enlisted Associations thank the committee for the opportunity to submit testimony on veteran and National Guard and Reserve employment issues. ROA and REA applaud the ongoing efforts by Congress to address employment problems faced by so many veterans and service members.

As contingency operations continue with increased mobilizations and deployments, many of these outstanding citizen soldiers, sailors, airmen, Marines, and Coast Guardsmen have put their civilian careers on hold while they serve their country in harm’s way.  As we have learned, they share the same risks and their counterparts in the Active Components on the battlefield, but don’t have a guarantee of a job when they return home.  Just recently we passed the 800,000 mark for the number of Reserve and Guard service members who have been activated since post-9/11. More than 275,000 have been mobilized two or more times. The United States is creating a new generation of combat veterans that come from its Reserve Components (RC).  It is important, therefore, that we don’t squander this valuable resource of experience, nor ignore the benefits that they are entitled to because of their selfless service to their country.

The unemployment rates of veterans and Guard and Reserve have been increasing despite the national rate slightly declining.  The Bureau of Labor and Statistics reports that in March and April of this year about 27 percent of veterans between 20 to 24 years of age were unemployed.  Other sources show it to even be higher.  The National Guard Bureau has reported numbers of unemployed returning Army National Guard units with unemployment rates as high as 45 percent. The significance of these numbers cannot go unnoticed or unanswered.

ROA and REA would like to thank the committee and staff for making improvements to the Post 9/11 GI Bill, enhancing benefits for caregivers, and much more.

EDUCATION

Post 9/11 GI Bill  

ROA and REA are grateful for passage of the Post-9/11 Veterans Educational Assistance Improvements Act of 2010.

Education improves a veteran’s chance for employment, and many returning combat veterans seek a change in the life paths.  There is still room for more improvement in the Post-9/11 I Bill that in the long run can make the program more effective and increase utilization. For example, while Title 32 AGR was included for eligibility while Title 14 Coast Guard Reserve was left out.

Other issues that student veterans have raised to ROA in which we recommend include the following:

  • Require timely application and submission of documentation by the institution to the Department of Veterans’ Affairs (VA) and vice versa.
  • Establish dedicated and well-trained officers for student veterans to speak with via the call center.
  • Better define the Yellow Ribbon Program to determine what ‘first come, first serve’ means in context of institutions (such as registration time, enrollment, and official enrollment).
  • Allow institutions to give more funds to students with stronger merit and need-base under the Yellow Ribbon Program.
  • Align the VA’s work-study program for students to work as guidance officers at their institutions to aid other student veterans, to be matched up with institution’s academic calendar.
  • Safeguard and implement a long term plan for sustaining the Post 9/11 GI Bill.
  • Ensure transferability benefits are protected.
  • Guarantee that any future changes to the program that could have negative effects on benefits will grandfather in current beneficiaries.
  • Pass legislation to disallow institutions including benefits in need-based aid formulations.
  • Remove the requirement to have a parental signature.
  • Establish parity between FAFSA disclosure exclusion over veterans’ educational and non-educational benefits to CSS and all institutions of higher learning.

Institutions of higher learning across the nation that provide need-based aid often require students to file a Free Application for Federal Student Aid (FAFSA) form and a College Scholarship Service/Financial Aid Profile (CSS) form administered by the College Board.

If an institution abides by the Federal methodology of determining aid levels it uses the FAFSA form and guidelines, but an institution may use an institution methodology (IM) formulated by CSS. By law under the Higher Education Opportunity Act of 1965 (HEA), FAFSA’s current need analysis formula, while including some sources of untaxed income, excludes veteran’s educational benefits and welfare benefits.

On the other hand, CSS require military service members to disclose their earned educational benefits for the formulation of their need-based aid levels. That disclosure of veterans’ educational benefits on the CSS is then often weighed by those institutions that use an IM in the same manner of other traditional untaxed income items such as child support or a contribution from a relative, in the formulation of their aid package.

Disclosing these earned-benefits on the CSS profile serves to bring down service members’ financial need level, thus increasing the cost out of pocket, by improperly treating earned benefits as equivalent in nature and function as untaxed income items. Since CSS is not restricted from asking for disclosure of the benefits, institutions use the CSS to add these earned benefits into the aid formulation, shirking FAFSA’s and the HEA’s intentions.

ROA and REA urge Congress to bar institutions of higher learning from considering veterans’ educational benefits in need-based aid calculations and apply the Higher Education Opportunity Act to all financial aid practices of institutions of higher learning.  

Also ROA and REA support Chairman Jeff Miller’s bill HR.1383 The Restoring the GI Bill Fairness Act of 2011 which would grandfather in current students who applied for benefits of the Post 9/11 GI Bill under a different set of rules. While many may gain advantages under the changes in law, others are actually negatively affected. For example ROA has received concerning calls and emails from members that feel forsaken as such members signed commitments based on the benefits which they now feel are reduced. 

One of the most significant problems that link all issues pertaining to the Post 9/11 GI Bill is the lack of effectively trained customer service representatives. One of the many examples came from two of our members that are married, both serving in a Reserve Component. They wanted to transfer their benefits to their children, but were told that only one parent can register the children in the DEERS system and therefore only one of the parents could transfer the benefits. After going through a couple back channels ROA found out that the couple needed to go to a DEERS office and request an ‘administrative’ account for the purposes of transferring benefits.

There are many stories similar to this one which causes unnecessary stress on the families, some of whom give into the system and give up the benefit because either they are given incorrect and/or incomplete information or the hassles involved are not deemed worthwhile.

It is absolutely necessary that our service members, veterans and families have the ability to access accurate and timely information. ROA and REA urge Congress to enforce the VA to properly and effectively train their personnel.

Montgomery GI Bill

To assist in recruiting efforts for the Marine Corps Reserve and the other uniformed services, ROA and REA urge Congress to reduce the obligation period to qualify for Montgomery “GI” Bill-Selected Reserve (MGIB-SR) (Section 1606) from six years in the Selected Reserve to four years in the Selected Reserve plus four years in the Individual Ready Reserve, thereby remaining a mobilization asset for eight years.

Because of funding constraints, no Reserve Component member will be guaranteed a full career without some period in a non-pay status. BRAC realignments are also restructuring the RC force and reducing available paid billets. Whether attached to a volunteer unit or as an individual mobilization augmentee, this status represents periods of drilling without pay. MGIB-SR eligibility should extend for 10 years beyond separation or transfer from a paid billet.

EMPLOYMENT

Employment Protections

Veterans and service members are provided protections through the National Committee for Employer Support of the Guard and Reserve (ESGR), the Uniformed Services Employment and Reemployment Rights Act (USERRA), and the Servicemembers' Civil Relief Act (SCRA).

Notwithstanding the protections afforded veterans and service members, and antidiscrimination laws it is not unusual for members to lose their jobs due to time spent away while deployed. Sometimes this is by employers who go out of business, but more because it costs employers money, time, and effort to reintroduce the employee to the company.

The most recent national example is in the case of Straub vs. Proctor Hospital in which Army Reservist Vincent Straub was fired by Proctor Hospital of Peoria due to his service requirements. The Supreme Court upheld Straub’s rights under USERRA.

Employer Incentives

Partnerships: The Army Reserve under Lieutenant General Jack Stultz initiated the Employer Partnership Program with civilian employers that is an initiative designed to formalize the relationship between the Reserve and the private sector, sharing common goals of strengthening the community, supporting RC service members and families, and maintaining a strong economy. Over 1,000 companies are currently in various preliminary stages of implementing partnership programs. This sets a model for businesses to hire veterans. The program has its own website http://www.employerpartnership.org/ and provides job search, a resume builder, professional staff support, a list of employer partners and career resources.

Periodic and Predictable: Employers need increased notification time in order to better support their personnel. The military services and components should provide greater notice of deployments to RC members, so that they, as well as their families and their employers, can better prepare. Collaboration between industry and the military needs to occur as the military considers deployment cycle models so that the nation’s defense needs are met but its industrial base is not compromised.

Employer care plans should be developed that will assist with mitigation strategies for dealing with the civilian workload during the absence of the service member employee and lay out how the employer and employee would remain in contact throughout the deployment.

CNGR: The Commission on the National Guard and Reserve suggested key recommendations included expansion of the Employer Support of the Guard and Reserve (ESGR) committee to be able to work new employment as well as reemployment opportunities, the creation of an employer advisory council, and regular surveys to determine employer interests and concerns over reemployment of Guard and Reserve members.  Unfortunately, the budget recommendation is to reduce ESGR’s budget.

TRICARE as an employee/employer benefit: An employer incentive is when an employee brings importable health care such as TRICARE, reducing the costs for the employer. Guard and Reserve members as well as military retirees should be permitted to tout the availability of TRICARE as an employee asset, and permit employers to provide alternative benefits in lieu of health care.

Another option is to fully or partially offsetting employer costs for health care payments for Guard and Reserve members who are employed, especially when companies continue civilian health insurance for service members and or their families during a deployment. DoD should provide employers – especially small businesses – with incentives such as cash stipends to help offset the cost of health care for Reservists up to the amount DoD is paying for TRICARE, with the understanding that the stipend is tied to reemployment guarantees upon the serving members return.

Other incentives: Incentives of various types would serve to mitigate burdens and encourage business to both hire and retain Reservists and veterans. A variety of tax credits could be enacted providing such credit at the beginning of a period of mobilization or perhaps even a direct subsidy for costs related to a mobilization such as the hiring and training of new employees. Employers felt strongly that, especially for small businesses, incentives that arrive at the end of the tax year do not mitigate the costs incurred during the deployment period. Also cross-licensing/credentialing would ease the burden of having to acquire new licenses/credentials in the private sector after having gained them during their military service, and vice versa.

While not under this committee’s jurisdiction we hope that the House Veterans’ Affairs Committee can support specific tax incentives to hire returning veterans and Guard and Reserve members.

ROA and REA support HR.743 Hire a Hero Act of 2011 introduced by Rep. Lynn Jenkins which would allow the work opportunity credit to small businesses which hire individuals who are members of the Ready Reserve or National Guard.

ROA and REA support HR.865 Veterans Employment Transition Act of 2011 introduced by Rep. Tim Walz that would extend work opportunity credit to certain recently discharged veterans.

ROA and REA support the concept of HR.802 introduced by Ranking Member Bob Filner because it would recognize employers of veterans, but strongly believe that it should be amended to include employers of Guardsmen and Reservists.

ROA and REA further recommend the following:

ROA and REA encourages the implementation of certifications or a form that would inform employers of skills potential veteran and service member employees gained through their military service.

ROA and REA supports initiatives to provide small business owners with protections for their businesses to be sustained while on deployment, for example a potential program in which a trained substitute is made available to run the business while the member is out country. Further SCRA protection on equipment leases should be included in the law. 

Draft Legislation

ROA has submitted draft legislation entitled “Equitable Justice for Terminated Veterans Act of 2011” which would direct courts to award reasonable litigation expenses of USERRA cases to prevailing veterans.

ROA also submitted draft legislation called “Veterans Personnel Protection Enhancement Act of 2011” that would amend Title 5, section 2303 U.S.C., to include willful violation of USERRA as a prohibited personnel practice.

Note: the draft legislative pieces are attached to the end of this testimony, and can be found on our website at http://www.roa.org/draft_legislation.  

Captain Sam Wright, JAGC, USN (Ret.), director for ROA’s Service Members Law Center, has drafted 23 additional pages of legislative improvements to USERRA which will be posted in the near future.  ROA is also available to work with individual offices.

SERVICE MEMBERS LAW CENTER

In the summer of 2009 ROA established the Service Members Law Center (SMLC) as a source of excellence in the areas of employment and consumer law for active, Guard and reserve personnel.

The Law Center’s goals include the following:

  • Advise Active and Reserve members who have been subject to legal problems that relate to their military service.
  • Develop a network of legal scholars, law school clinics and private practitioners interested in legal issues of direct importance to service members.
  • Advance world-class continuing legal education on issues relating to the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Servicemembers Civil Relief Act (SCRA).
  • Broaden the existing database of USERRA and SCRA research.
  • In conjunction with bar associations, develop standards that will help to ensure that lawyers to whom service members are referred for legal services have the requisite expertise to represent them effectively.

Recruiting and retaining members of the armed services, especially those in the National Guard and Reserves, depends in part on assuring current and future Citizen Warriors that laws and regulations are in place to protect them effectively from discriminatory practices.

The Law Center is functioning at a modest but effective level. ROA is pursuing efforts to obtain private or public funding and to identify public and private entities willing to sustain this effort in order to expand this service to fuller capacity. This is especially needed following potential cuts to ESGR.

As part of the SMLC and under director Captain Sam Wright, JAGC, USN (Ret.) the Law Center maintains the “Law Review” data base and indices contain over 700 articles on USERRA and SCRA issues (available at www.roa.org/law_review_archive). On a monthly basis CAPT Wright receives about 500 calls from concerned service members, families and attorneys. In March 2011 about 80 percent of the calls were about USERRA.

The Law Center’s services include:

  • Counseling: Review cases, and advise individuals and their lawyers as to lawfulness of actions taken against deployed active and reserve component members.
  • Referral: Provide names of attorneys within a region that have successfully taken up USERRA, SCRA and other military-related issues.   
  • Promote: Publish articles encouraging law firms and lawyers to represent service members in USERRA, SCRA and other military-related cases.
  • Advise: File amicus curiae, “friend of the court” briefs on service member protection cases.
  • Educate: Quarterly seminars to educate attorneys a better understanding of USERRA, SCRA and other military-related issues.

The Service Members Law Center is available at www.roa.org/Servicemembers_Law_Center.

DEFENSE EDUCATION FORUM

ROA also maintains the Defense Education Forum (DEF). DEF produces and sponsors a wide variety of educational events that number more than 30 per year. Some past programs comprise employment and transition issues. The DEF director is Lieutenant Colonel Bob Feidler, USAR (Ret.).

In fact in 2008 ROA published a report on continuum of service entitled “A New Employer-Reservist Compact: Initiatives for the Future” that is available upon request.   

Others events have included continuing education on USERRA, a joint issue event on mental health care and the Army Reserve Employer Partnership Program, Commission on the National Guard and Reserve and  others.   The Defense Education Forum is available at www.roa.org/Educate.

CONCLUSION

ROA and REA appreciate the opportunity to submit testimony, and we reiterate our profound gratitude for the progress achieved by this committee such as providing a GI Bill for the 21st Century and advanced funding for the VA.

ROA and REA look forward to working with the House Veterans’ Affairs Committee, where we can present solutions to these and other issues, and offer our support, and hope in the future of an opportunity to discuss these issues in person.

ROA and REA encourage this Committee to utilize the Service Members Law Center and the Defense Education Forum and reports, both valuable assets, and to share it with your constituents and other Congressional Members.


112th  Congress
First Session
A (House/Senate) Bill

To amend Title 38, section 4323(h)(2) United States Code, to direct courts to award reasonable litigation expenses in USERRA cases to prevailing veterans.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1.  Short Title: This Act may be cited as “Equitable Justice for Terminated Veterans Act of 2011”.

SECTION 2. FINDINGS.

Congress makes the following findings:

(1)  Under USERRA, a person who leaves a civilian job for voluntary or involuntary service, in the Regular military or the National Guard or Reserve, is entitled to reemployment in the civilian job upon release from service.

(2) Currently under this section of U.S.C., a Federal court may award to a veteran who prevails reasonable attorney fees, expert witness fees, and other litigation expenses.

(3)  U.S. Code 38 Sect 4323(h)(2) applies to actions in Federal court against state and local governments, and private employers.

(4) Too often a veteran or reserve component member has to seek private sector litigation because the Department of Labor is too slow at processing cases and the Department of Justice can’t handle all of the USERRA complaints that are received.

(5) By making the award of litigation expenses mandatory rather than discretionary, private sector attorneys will have increased incentive to undertake such cases.

SECTION 3.   AMEND THE LIST OF PROHIBITED PERSONNEL PRACTICES TO MAKE SPECIFIC REFERENCE TO USERRA.

(a) AUTHORITY- Section 4323(h)(2) of title 38, United States Code, is amended by striking “may” and inserting “shall.”

SECTION 4. EFFECTIVE DATE AND APPLICABILITY.

(a)  The amendments made by this section shall take effect on the date of enactment of this Act.


112th  Congress
First Session
A House/Senate Bill

To amend Title 5, section 2303 United States Code, to include willful violation of USERRA as a prohibited personnel practice.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1.  Short Title: This Act may be cited as “Veterans Personnel Protection Enhancement Act of 2011”.

SECTION 2. FINDINGS.

Congress makes the following findings:

(1)  There are 12 enumerated “Prohibited Personnel Practices” include in Title 5, section 2303 of US Code.

(2) A Federal employee can be disciplined by the Merit System Protection Board (MSPB) by committing a prohibited personnel practice.

(3)  Number 11 on the prohibited personnel practices list is action that would violate a veterans’ preference requirement. 5 USC. 2303 (b) (11).

(4) The Department of Labor does not include a violation of the Uniform Services Employment Reemployment Rights Act (USERRA) as a veterans' preference issue.

(5) Violation of USERRA would include discharge of a Veteran, National Guard or Reserve member because of prior or pending service.  A denial of a promotion, bonus, or merit pay could be another violation.

SECTION 3.   AMEND THE LIST OF PROHIBITED PERSONNEL PRACTICES TO MAKE SPECIFIC REFERENCE TO USERRA.

(a)  AUTHORITY- Section 2303(b)(11) of title 10, United States Code, is amended by inserting after “a veterans’ preference requirement” the following:

(1)  “or the Uniformed Services Employment and Reemployment Act” to the end of this subsection.

SECTION 4. EFFECTIVE DATE AND APPLICABILITY.

The amendments made by this section shall—

(1)  take effect on the date of enactment of this Act.


DISCLOSURE OF FEDERAL GRANTS OR CONTRACTS

The Reserve Officers and Reserve Enlisted Associations are member-supported organizations. Neither ROA nor REA have received grants, sub-grants, contracts, or subcontracts from the federal government in the past three years.  All other activities and services of the associations are accomplished free of any direct federal funding.