Mr. Chairman and distinguished members of the Veterans' Affairs Committee, on behalf of its 655,000 members, the Reserve Officers Association expresses its appreciation for the opportunity to present testimony on issues that affect the 1.1 million men and women now serving in America’s Reserve Components.

As contingency operations bring about ongoing 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. Nearly 700,000 have already served in support of operations. As we have learned, they share the same risks and their counterparts in the Active Components. The United States is creating a new generation of combat veterans that come from its Reserve Components (RC). It is important, therefore, that they be afforded benefits consistent with their selfless service to their country and in parity with their Active Duty compatriots.

The individuals serving in the states are no less patriotic, and with the planned rotations by the Department of Defense, they will likely have a chance to serve overseas. Yet, there is a group of Reserve Component men and women with non-prior service: Reserve personnel who qualify for veteran benefits even before mobilization. These individuals may even be serving in “harms way,” but under other than mobilization orders. Men and women of the Reserve Components on Active Duty for Special Work (ADSW) orders are performing numerous missions.

GI BILL BENEFITS 

Public Law 106-419, Veterans Benefits and Health Care Improvement Act of 2000, was enacted on November 1, 2000. The law repealed the original provision that states MGIB eligibility is established by the initial obligated period of Active Duty. Soldiers who do not meet the time in service requirement during the first term of service, as stated above, may become eligible on a subsequent period of Active Duty. When service members return to Active Duty, they are eligible to re-establish MGIB eligibility by completing 36 months of this subsequent period of service obligation with a fully honorable character of service discharge. If the soldiers separate early, the above rules still apply.

Under partial mobilization, RC service members receive orders placing them on Active Duty for up to two years. The current assumption is that Reserve Component members are not eligible for Active Duty MGIB if they cannot serve for 36 months.

• When recalled, Guardsmen or Reservists should be eligible to participate in the active duty GI Bill.
• Public Law 106-419 should be as applicable to RC members as those on Active Duty. In a reality, where DoD plans to do multiple call-ups as often as once every five years, RC service members should be entitled to re-establish eligibility and accrue 24 months of service.
• RC members should be permitted to enroll in the GI Bill by buying-in with $1,200 of their basic pay in the first year of mobilization, if required. If the enrolled individual is sent home at the convenience of the government before one year, MGIB withholding will continue on subsequent recalls.
• At the end of the first tour of mobilization, disenrollment should be offered as a one-time, irrevocable decision.
• When RC service members accrue two years of Active Service, those soldiers should be entitled to the exact same benefit as their Active Component counterparts.
•  Disabled Guardsmen and Reservists should be eligible for the new GI bill or MGIB.
• Reservists and Guardsmen with service-connected disabilities should be afforded the same re-education opportunities as those on Active Duty, as the enemy’s bullet does not discriminate.

Additional MGIB-SR Enhancements

The MGIB-SR rate has not kept pace with the increasing roles of the Guard and Reserve.

• The MGIB-SR benefit needs to increase to 50 percent of the MGIB.
• The eligibility period needs to begin at the point service members elect to use the program for the first time.
• The eligibility period should extend for 14 years following their release from military service.

GI Bill for the 21st Century

• ·ROA urges the Congress to authorize and appropriate adequate funding for a new GI Bill beyond Fiscal Year 2009.
• The Association further supports transferability to serving members who don’t use the benefit to family members.
• GI bill payments should be able to be applied to repay student loans.

Education Reform

The Department of Education has been working hard to contact education institutes about the administration of the Federal student financial aid program authorized under Title IV of the Higher Education Act about recalled students.

• If an RC student is recalled and unable to continue school, a student loan should remain “in-status” for the period for the duration of the mobilization even if it exceeds three years.
• A “total of three years” should not be cumulative; the clock should start over with subsequent recalls.

Currently, following notification that borrowers who are in default of a loan have been called to Active Duty, lenders cease all collection activities for the expected period of the borrower's military service. Collection activities can resume no earlier than 30 days after the end of the borrower's military service.

• Thirty days is an insufficient time for individuals returning from mobilization to reorganize their lives. Like the example set with TRICARE medical coverage, this should be extended to at least 90 days.

UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT REFORM

The Uniformed Services Employment and Reemployment Rights Act (USERRA) significantly strengthens and expands the employment and reemployment rights of all uniformed service members. USERRA is essentially a good law, but the challenge is enforcing it when the involved parties disagree. When Guard and Reserve members return to civilian employment following federal service, actions need to follow through to enforce the law. A growing population of Reserve Component members feels that the federal government isn’t doing enough.

Currently, the agencies tasked to enforce USERRA are the Departments of Labor and Justice. DOL’s Veterans’ Employment and Training Service (VETS) handles USERRA complaints and other veterans’ issues. DOL-VETS provides assistance to all persons having complaints under USERRA. If resolution is unsuccessful following an investigation, the privately employed Reservist may have his or her claim referred to the Department of Justice for consideration for representation in the appropriate District Court, at no cost to the claimant.

Unfortunately, actual elapsed times of cases often take one to two years to investigation and process. Within DOL, cases are still processed on paper; this slows information transfer, and creates the risk of duplication. In the vast majority of cases, the outcome is dismissal of the claim. Since USERRA’s passage in 1994, most USERRA enforcements were by Reservists who sought private litigation.

The Reserve Officers Association recommends the following:

• The National Committee for Employer Support of the Guard and Reserve (ESGR) should be better resourced to expand its outreach programs as it is better to prevent a problem by educating employers or resolve a problem at the lowest level.
• Reforms are need in the USERRA Complaint Process
• The Department of Labor should follow the success of the Office of Special Council with dedicated investigators and lawyers assigned to DOL-VETS who specifically focus on USERRA cases.
• The Office of Special Council should handle all of the federal employee USERRA cases.
• USERRA case files should be electronic maintained and transmitted, allowing access to ESGR, DOL-Vets, OSC, and DOJ and the service member.
• Congress should mandate better reporting by all Federal agencies by providing details on:

- how many cases.
- how they are resolved.
- how long the actual elapsed time takes

Accomplishment of objectives should be measured by results rather than outputs.

Unfortunately, the Federal Government can not handle the increasing numbers of cases by itself, there is a need to create incentives for private lawyers to represent Guard and Reserve members who face employment and reemployment problems. In addition to reemployment”

• A court should be allowed to require the employer to compensate the person for any loss of wages or benefits suffered by reason of such employer's failure to comply with the provisions of this chapter.
• Amend 38 U.S.C. 4323 and 4324 to authorize punitive damages for willful and egregious USERRA violations.
• Amend 38 U.S.C. 4323(d)(1)(C)—the "liquidated damages" provision to require employers who have violated USERRA to remunerate to the servicemember an amount of $20,000 or the amount equal to the actual damages, whichever is greater. Provide a provision in section 4324 allowing for liquidated damages when the employer is a federal executive agency and the violation was willful, such as found in section 4323 as it applies to states, political subdivisions of states, and private employers.
• Amend Title 38 U.S.C. 4323(e) to mandate (rather than simply permit) injunctive relief to prevent or correct a USERRA violation.

Court reforms will not be enough. Private lawyers must still be educated as to why USERRA cases are important to represent. ROA hopes to create a Law Center that would be:

- a hub for sharing information on USERRA and SCRA.

- an education source on rights and responsibilities under USERRA for serving members and provided continuing legal education to private council.

Servicemembers Law Center

The Reserve Officers Association is exploring the establishment of a Servicemembers Law Center, advising active and reserve members who have been subject to legal problems that occur during deployment. This new center would be located in the renovated Minute Man Memorial Building on Capitol Hill. A position paper is attached to this testimony

The law center would provide counseling to demobilized Reserve and separated Active component members, and could provide a referral service for those needed legal assistance. This law center would also educate private lawyers about USERRA and the Servicemember Civil Relief Act and promote representation of RC members by private lawyers.

To help facilitate this process, the ROA will set-aside office space, hire one lawyer, and one administrative law clerk.

Goals of Law Center:

Recruit: Encourage new members to join the Guard and Reserve by providing a non-affiliation service to educate prior service members about Uniformed Service Employment and Reemployment Rights Act (USERRA) and Servicemember Civil Relief Act (SCRA) protections.

Retain: Work with Active and Reserve Component members to counsel Uniformed Services Former Spouse Protection Act (USFSPA), USERRA, and SCRA protections for deployed or recently deployed members facing legal problems.

Law Center Services:

Counseling: Review cases, and advise individuals and their lawyers as to legitimacy of actions taken against deployed active and reserve component members.

Referral: Provide names of attorneys within a region that have successfully taken up USFSPA, USERRA and SCRA issues.

Promote: Publish articles encouraging law firms and lawyers to represent service members in USFSPA, USERRA and SCRA cases.

Advise: File Amicus Curiae, “friend of the court” briefs on servicemember protection cases.

Educate: Quarterly seminars to educate attorneys a better understanding of USFSPA, USERRA and SCRA.

• ROA hopes that the committee will support the Servicemembers Law Center project.

While the above reforms will positively affect USERRA enforcement, many other things need to be done to improve USERRA:

• Exempt employees from penalties when their insurance lapses if their motor carrier license expires while mobilized (i.e., the Federal Motor Carrier Safety Administration).
• Exempt servicemembers from the age restrictions on federal law enforcement retirement applications when deployment causes the servicemember to miss completion of the application to buy back retirement eligibility.
• Amend Title 49 U.S.C. 44935 to apply USERRA to servicemembers employed by the Transportation Security Administration (TSA) as screeners.
• Amend 38 U.S.C. 4302(b) to make clear that USERRA overrides an agreement to submit future USERRA disputes to binding arbitration.
• Amend 38 U.S.C. 4303 (definition of “employer”) to clarify that a successor in interest (a new employer often resulting from a merger, transfer of assets or takeover of a function between companies) inherits the predecessor’s USERRA obligations and that a merger or transfer of assets is not necessary to support a finding of successor liability.
• Devise a method to tie the escalator principle to merit pay systems.

ROA also suggests the following improvements to SCRA.

• Include National Oceanic Atmospheric Administration (NOAA) commissioned officers corps under SCRA coverage.
• Amend the SCRA to give the mobilized RC member the right to terminate a contract for telephone service, including cell phone service.
• Amend the SCRA to clarify that the Act applies to the debts of limited liability companies and Subchapter S corporations when the company/corporation is wholly-owned by the servicemember or the servicemember and a spouse and the servicemember is personally liable on the debt, either as a co-maker or as a guarantor.
• Amend the SCRA to add a provision specifically granting a servicemember or the dependent of a servicemember a right of action to sue violators to enforce the servicemember's rights under the SCRA and to recover any damages that may have been incurred.
• Amend the SCRA to add a provision authorizing a court to award exemplary or punitive damages and attorneys’ fees to servicemembers whose rights are violated intentionally or willfully under the SCRA by creditors.
• Amend Section 201 of the SCRA (50 U.S.C. App. §521(b) (2) to provide that the reasonable fees of the attorney appointed by the court to represent the servicemember shall be taxed as costs of court.
• Amend Section 305 of the SCRA (50 U.S.C. App. §535) to specifically provide that a landlord may not impose an early termination fee if a servicemember terminates a lease pursuant to the SCRA and to allow a servicemember to give the landlord a letter from his/her commanding officer in lieu of providing copies of deployment/PCS orders.

SEAMLESS TRANSITION IN HEALTH CARE

Physical Screening of servicemembers is needed at demobilization sites to document the exit state of the individual. Medical Records of Guard and Reserve members are not maintained as completely as those members on Active Duty. Documentation is a key.

Completion of the Medical Review/Physical Evaluation Board for individuals with medical problems is essential, to document fitness for service and potential medical complications. Such documentation helps the Department of Veteran Affairs record and process claims.

In order to create a more seamless transition if health care, the ROA recommends the following enhancements:

• Medical records and information management systems in the Department of Defense need to be redesigned to be less cumbersome. The Department of Defense needs an electronic medical records system that is compatible with the systems from the Veterans Affairs.
• Improve the exchange of information between the Department of Defense and the Department of Veterans Affairs regarding military discharge decisions. The inter-agency connectivity and cooperation needs to be enhanced to better serve those that have served our nation so well.
• Reservists need proper education and counseling in benefits, allowances, and assistance that are offered to wounded service personnel. A Reservist returns to a civilian community that may not have a nearby military installation. When considering this proposal there are many possible sources of training for personnel, including Reserve units and Veteran Service Organizations.
• JAGs should receive additional training in benefits, allowances, and resources and be made available for any legal assistance needed. Benefit systems can be confusing and the bureaucracy difficult to navigate; wounded warriors should not be left on their own. Once released from Active duty, Reservists are only partially tied to the military organization.
• Line of duty determinations must be made in a timely manner, with the ability to perform home status duty, while waiting the outcome from medical or physical evaluation boards.
• Long waits for medical or physical evaluation boards, in some cases a year or more, without drilling can cause Reservists to lose a satisfactory year. These non-qualifying years can affect promotion opportunities and retirement eligibility. The assignments of wounded warriors can and must be adjusted to accommodate their post-injury condition.
• Benefits must be equal for all wounded warriors. All disparity in annual disability payments between the Active and Reserve components must be eliminated. Variances in VA ratings between States need to be standardized.
• Develop a Senior Enlisted report system at each medical facility to the Senior Enlisted Advisor to the respective Reserve Component Chiefs describing the condition of their medical facility. One of the traditional roles of any Senior Enlisted Advisor from a Platoon Sergeant to the Sergeant Major is ensuring the welfare of soldiers. The services must give the senior enlisted the tools to accomplish that mission at military treatment facilities.
• Reservists should have the option to return home while awaiting surgery, physical therapy or other medical treatment. They should also have the choice to receive these services from local TRICARE medical professionals at DoD expense. Many of these citizen-warriors are often forced into an unfair choice between receiving full continued care on Active duty or a “discounted” disability for a quicker return to their civilian lives.
• Wounded warriors should be assigned to units local to their homes for the purpose of accountability and tracking their progress through the medical system. These service members risk falling between the cracks that are created between the Department of Defense and the Department of Veterans Affairs. The military needs to take responsibility for monitoring and advocating for their people until they are fully integrated into the Veterans Affairs system.
• Extensive mental health assessments should be given immediately upon return to home units with follow-up assessments as prescribed by mental health officials. When Reservists return to their civilian lives they may develop mental complications not previously noticed. Experts in this field need to be consulted to determine a monitoring program with no negative career repercussions associated with seeking mental health treatment.
• Traumatic Brain injury is the signature wound from Iraq. Predeployment baseline tests should be taken to measure changes in returning warriors.

SEAMLESS TRANSITION UNDER TRICARE, REQUIRING CHANGES TO USERRA AND SCRA 

Initial Coverage: The FY-2005 National Defense Authorization Act made permanent initial TRICARE health coverage up to 90 days prior to activation for servicemembers who receive a “delayed-effective-date” order for contingency operations greater than 30-days.

The Risk: If Reserve component (RC) members have their orders cancelled after enrolling in the initial TRICARE coverage, and they also have cancelled their employer’s health insurance, they are at risk. When the member returns to his employer and hasn’t been covered under orders, he or she no longer has USERRA protection.

Legislative Solution: Section 4317 of title 38 (USERRA) needs language included to protect this group of Guardsmen and Reservists.

Demobilization Coverage: Congress made TAMP and TRS benefits permanent in the FY-2005 NDAA. Changes to USERRA and SCRA are needed.

Transitional Assistance Management Program (TAMP) provides 180 days health care coverage as a transition to civilian life. Under TAMP, the service member and family members are eligible to use TRICARE.

TRICARE Reserve Select (TRS) is a health plan offered to Selected Reservists while they remain in a drill status. Should they discontinue drilling, they lose coverage.

The problem: The Uniformed Services Employment and Reemployment Act (USERRA) and the Servicemembers Civil Relief Act (SCRA) have not been updated to match these TRS health care enhancements.

SCRA: The Servicemembers Civil Relief Act provides for the reinstatement of any individual health insurance upon termination or release from service. The insurance must have been in effect before such service commenced and terminated during the period of military service. The reinstatement of the health insurance is not subject to exclusions or a waiting period if the medical condition in question arose before or during the period of service. The servicemember must apply for the reinstatement of the health insurance within 120 days after termination or release from military service.

USERRA: The Uniformed Services Employment and Reemployment Rights Act (USERRA) ensures immediate reinstatement of health care by the employer only at the time when the RC member returns to employment. If the RC member continues on TAMP health care, or chooses to use the TRICARE Reserve Select coverage, the employer could decline reinstatement of health care to the Reservist when the government plan expires, requiring him or her to wait until the next open registration period, which could be months in the future.

The Risk: Health Insurance Portability and Accountability Act (HIPPA) states that a pre-existing condition will be covered when transitioning between insurance plans if an individual was “covered by previous health insurance (which qualifies under HIPAA as creditable coverage) and if there was not a break in coverage between the plans of 63 days or more.” TRICARE is a qualifying plan.

If a member utilizes transitional health care over 120 days for an individual health insurance, or declines the employer’s plan on the day of re-employment to continue on TRS, the demobilized service member may loose his or her USERRA or SCRA protection for a continuation of health care coverage. Should a waiting period exceed 63 days, pre-existing conditions of the member or family may not be covered.

Legislative Solution 

Section 4317 of title 38 (USERRA) needs to include protections for returning RC member employees who elect TRICARE Reserve Select. Subsection (a)(1) of section 4317 of title 38, United States Code, should be amended by inserting after `by reason of service in the uniformed services,' the following: `or such person becomes eligible for medical under chapter 55 of title 10 by reason of subsection (d) of section of 1074 or 1076 of that title’.

Section 704 of the Servicemembers Civil relief act states in section (d) TIME FOR APPLYING FOR REINSTATEMENT- An application under this section must be filed not later than 120 days after the date of the termination of or release from military service. Suggested change 180 from 120 days and inclusion of “or upon completion of the person's eligibility for medical care under chapter 55 of title 10 by reason of subsection (d) of section 1076 of that title”

If TRICARE benefits aren’t protected under USERRA and SCRA, members may only provide health care plans for family members, and turn to the Veterans Health Administration for their personal health care coverage. At a time when the VHA system is taxed by high demand, and health care costs are increasing, TRICARE benefits as well as Military and VHA medical coverage should be optimized.

CONCLUSION

Mr. Chairman and distinguished members of the Committee, America’s service men and women from the Reserve Components come from the heart of communities across this great country and its territories. Many were among the first to respond to their nation’s call after September 11, 2001. They have proven themselves to be worthy heroes and capable warriors and have earned the respect they so richly deserve from their fellow citizens. What they also deserve is the equality in benefits that are given to their Active Component brothers and sisters.

The Reserve Officers Association urges the Congress to ensure that our newest veterans, the members of our Reserve Components, are treated equitably and fairly in benefits in addition to being honored as proud citizen soldiers, sailors, airmen, and Marines in the highest traditions of this great country.