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Witness Testimony of Hon. Robin Hayes, a Representative in Congress from the State of North Carolina

EXECUTIVE SUMMARY

Purpose of Legislation:  This bill would amend the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) to authorize the Secretary of Defense to include Full Time National Guard Duty for possible exemption from the USERRA 5-year limit on service.  The Secretary of Defense would be authorized to exempt National Guard service supporting critical homeland defense missions or other missions as deemed appropriate.  Since USERRA already authorizes exemptions for service supporting critical active duty missions, this amendment would simply correct a disparity in the treatment of National Guard members. 

Background:  Currently, certain types of active duty service are exempted from the five-year reemployment limit under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).  These exemptions cover service during a time of war or national emergency, support of missions where others have been ordered to duty under an involuntary call-up authority, and for other critical missions or requirements. 

After the events of September 11, 2001, voluntary active duty in support of Operation Noble Eagle (ONE) and Operation Enduring Freedom (OEF) were exempted from the USERRA 5-year limit on reemployment.  However, full-time National Guard duty performed under Title 32 is not covered under those exemptions. 

As part of the new operational reserve construct, National Guard personnel will be used in ever-increasing numbers to support certain operational requirements while serving in a Title 32, full-time National Guard duty status.  Indeed, section 512 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (Public Law 108-375) added a new chapter 9 to Title 32 to authorize this type of service.  Despite this fact, there is no authority under USERRA to exempt this type of National Guard service. 

Examples of National Guard employment when such a USERRA exemption might be appropriate include airport security following the terrorist attacks of September 11, the recent southwest border security mission, Hurricane Katrina, and the Air Sovereignty Alert missions defending the United States from air attacks.  As we continue to pursue the Global War on Terror, and the National Guard continues to be utilized at a high rate, more of these missions may identify themselves. 

Conclusion:  If the National Guard Employment Protection Act of 2007 is not passed, National Guard members may be put into a position where they are forced to choose whether they support a critical mission, such as Katrina or a mission in support of the Global War on Terror or return to work with their civilian employers. This is already starting to occur.  Like their counterparts supporting critical active duty missions, they should not be forced to make the choice of whether to keep their civilian jobs or support critical national security missions.

The lack of a USERRA exemption for Title 32 Federal full-time National Guard duty is a clear disparity that needs to be addressed.  H.R. 3798 will close this loophole and protect our citizen soldiers.  This legislation is fully supported by the National Guard Association of the United States (NGAUS) and the Enlisted Guard Association of the United States (EANGUS). 


Chairwoman Herseth, Ranking Member Boozman, representatives of our Veterans’ Service Organizations, thank you for the opportunity to be here to address your Subcommittee on an issue that impacts our National Guardsman.  Today, I am proud to stand before this Subcommittee in support of a critical piece of legislation:  The National Guard Employment Protection Act of 2007.

As this Subcommittee is aware, the National Guard operations tempo has increased exponentially since September 11th, and the Federal duties they have been charged with have created a unique situation.  Previously, National Guard doing Federal missions were called up to Title 10 active duty status, but with the Global War on Terror, it became increasingly apparent that there needed to be a mechanism to allow the National Guard to perform Federal missions in Title 32 status. 

It has become clear that unified state-federal cooperative employment of the National Guard provides a uniquely powerful tool to address domestic security needs.  Some examples of this type of Federal Title 32 duty are Air Sovereignty Alert (ASA) providing air defense for our nation, airport security, operations in support of natural disasters such as Hurricane Katrina, fighting wildfires, and border security to name a critical few. 

More and more often, we see operations in which the Federal government provides the funds and the State governors provide the authority and control to execute operations to secure the homeland.  This means that a greater number of National Guardsmen are performing such duties, which unfortunately are not currently covered under USERRA.  Prior to September 11th, there were essentially no operational missions conducted by the National Guard under Title 32 so there was no loophole in the protection afforded National Guardsmen for their Federal service.

To address this loophole, I introduced H.R. 3798, The National Guard Employment Protection Act of 2007, with Congresswoman Madeleine Bordallo of Guam as my Democratic original cosponsor.  The bill would amend the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) to authorize the Secretary of Defense to include Full Time National Guard Duty for possible exemption from the USERRA 5-year limit on service.  Passage of this legislation will ensure that National Guard Members are not forced to choose between keeping their civilian jobs and serving our nation. Since USERRA already authorizes exemptions for service supporting critical active duty missions, this amendment would simply correct a disparity in the treatment of National Guard members. 

It is essential that we make sure all of our nation’s heroes are given adequate opportunity to support Federal missions without it affecting their civilian jobs.  The National Guard has increasingly been called up since September 11th, and North Carolina has one of the highest mobilization rates at over 97% percent.  Whether they are protecting our skies, helping save lives during a national disaster such as Hurricane Katrina, enhancing our border security, or doing another Federal mission, there is no doubt that the National Guard is an essential part of the total force.  America’s National Guardsmen should never be put in a position where they are forced to choose whether to support a critical mission, such as a mission in support of the Global War on Terror, or return to work with their civilian employers in order to protect their jobs.”

At seven years into fighting the Global War on Terror (GWOT), we are starting to see a small but increasing number of National Guardsmen bumping up against their 5 year USERRA protection for their civilian jobs.  According to statistics provided by the National Guard Bureau, since September 11th, 6,984 of our citizen soldiers have been called up to perform Federal missions under Title 32.  There are currently 1,719 Guardsmen performing duty under Title 32 orders.  The Air National Guard has especially been impacted, particularly those airmen performing the Air Sovereignty Alert mission.  They are by no means alone in their situation, as this loophole in employment protection affects the entire National Guard.

If the National Guard Employment Protection Act of 2007 is not passed, National Guard members may be forced to choose between keeping their civilian jobs and serving our nation.  Unfortunately, this is already starting to occur and the problem will likely get worse as people near the current USERRA 5-year job protection limit.  The National Guard is performing critical Federal missions under Title 32 and it is essential that this loophole be closed so that we protect those whose service protects us. 

This legislation is fully supported by the Enlisted Guard Association of the United States (EANGUS) and the National Guard Association of the United States (NGAUS) and I have enclosed their letters of endorsement for the record.   The National Guard Bureau and Department of Defense also favor closing this loophole to protect our National Guardsmen.  Our citizen soldiers fight to protect our nation and our freedom and the very least we can do is protect their rights to serve and also retain livelihood for themselves and their families.

Thank you for the serious consideration of the National Guard Employment Protection Act.  I know all the Members of this Subcommittee share my commitment to the National Guard, and therefore strongly urge passage of this legislation.


Enlisted Association of the National Guard of the United States
Alexandria, VA.
October 11, 2007

The Honorable Ike Skelton
The Honorable Duncan Hunter
United States House of Representatives
Washington, D.C.  20515

The Enlisted Association of the National Guard of the United States (EANGUS) is the only military service association that represents the interests of every enlisted soldier and airmen in the Army and Air National Guard.  With a constituency base of over 414,000 soldiers and airmen, their families, and a large retiree membership, EANGUS engages Capitol Hill on behalf of courageous Guard persons across this nation.

As you begin negotiations for conference on the National Defense Authorization Act for Fiscal Year 2008 (H.R. 1585), we write to express our strong support for fully authorizing the President’s Budget request for the Joint Cargo Aircraft (JCA) and to maintain an Army-led Joint Program Office in accordance with the Memorandum of Agreement.  In particular, we write to express our concerns that Section 132 of the House bill and Section 1029 of the Senate bill would delay fielding of this critical program.

Providing robust intra-theater lift capabilities over the “last tactical mile” of combat operations plays a critical role in supporting the modern war fighter.  However, the current inventory of inter-theater transports is increasingly inadequate for this mission due to increased use in current combat operations, which not only stresses older aircraft such as the C-23 Sherpa but also rapidly ages newer rotorcraft aircraft as well.  The Army C-23 in particular is an aging aircraft which is not pressurized, not certified for medical evacuation missions and incompatible with the standard cargo pallets.  This important intra-theater lift mission cannot continue to be supported by a rapidly aging, overstretched and inadequate fixed wing fleet. 

Once fielded, JCA will provide the rapid, reliable and flexible intra-theater lift capabilities on an asymmetric battlefield.  The JCA will ease the strain on our present fleet and afford the immediate need for greater maximum loads at smaller, unrefined landing strips.  This will get critical equipment and supplies into the fight faster in support of the war fighter.

The need for improved intra-theater lift has repeatedly been studied and validated by the Department of Defense (DOD) through the Joint Requirements Oversight Council (JROC).  The Army and Air Force, in coordination with the National Guard Bureau, meet the joint validated requirement through the capabilities provided by the JCA.  Additionally, the U.S. General Accountability Office (GAO) ruled against the JCA bid protest is a testament to the program’s joint acquisition management.  The joint requirements call for fielding a total of 78 aircraft to the Army, Air Force, National Guard and Army Reserves.  Also, on June 20, 2006, the Army and Air Force Vice Chiefs of Staff signed a Memorandum of Agreement that clearly laid out the joint requirements for the program that meet both Army and Air Force operational capabilities. 

As importantly, current planning would assign the JCA to Army and Air National Guard units in 19 states and the territories of Guam and Puerto Rico.  JCA will provide an added critical capability to state emergency management and homeland security missions.  In addition, JCA will help National Guard units across the country replace missions lost to BRAC 2005, retain personnel with needed skills and recruit new members.  This is the right mission at the right time for the National Guard, and one that is strongly supported by Governors and Adjutants General across the country.

Legislative language in the Senate and House versions of the Defense Authorization Bill, as currently written, would delay the fielding of JCA aircraft.  In particular, the Senate, in Section 1029, has included language that would shift responsibility of the Joint Cargo Aircraft program from the Army to the Air Force divesting the Army of any fixed-wing aircraft missions.  Such a directive would undermine Army fixed-wing capabilities essential to supporting critical combat missions and protecting the homeland.  The Army-led program is on schedule and has met all of its milestones.  Shifting responsibility to the Air Force at this point would set the program back at least two to three years – if not more – due to differing fielding timelines between the services.

The Army, Air Force and the National Guard have worked together to provide a workable Joint solution to an important Joint capability gap. Given the critical need for improved intra-theater lift capabilities, we believe that it is critical that the JCA program continue to move forward without delay.  To this end, we respectfully request your support in conference for fully authorizing the Joint Cargo Aircraft program in fiscal year 2008 as submitted to Congress in the President's Budget, and removing any legislative provisions or requirements that could impede the program’s progress.

Thank you for your consideration and strong support for the men and women of our armed forces.

Working for America’s Best!

MSG Michael P. Cline, USA (Ret)
Executive Director


 

National Guard Association of the United States
Washington, DC
November 19, 2007

The Honorable Robin Hayes
130 Cannon House Office Building
Washington, D.C. 20515

Dear Representative Hayes:

Thank you for sponsoring H.R. 3798.

The service of our men and women of the National Guard ordered to full-time National Guard duty under Title 32 must be protected by the same reemployment rights under the Uniform Services Employment Reemployment Rights Act (USERRA) as are afforded our members ordered to active duty under Title 10.

Although not readily visible to the American public and media, the men and women of the National Guard ordered to serve for on full-time National Guard duty under Title 32 after September 11, 2001 are playing an indispensable role in maintaining the National Guard as ready operational force in the Global War on Terror. As with the active forces, the sacrifice of these men and women involves spending extended periods away from civilian occupations. They should have the same rights under USERRA upon completion of their duty to return with certainty to their civilian jobs as those protecting Reserve Component members serving on active duty under Title 10.

NGAUS strongly supports H.R. 3798 now before the 110th Congress which would establish a National Guard Employment Protection Act that would apply the benefits of USERRA to individuals ordered to full time National Guard duty under Section 502(f) of Title 32 on or after September 11, 2001.

Our young men and women ordered to serve full-time in the National Guard under Title 32 in the Global War of Terror deserve the same re-employment rights as those protecting their active duty counterparts. Thank you again for your efforts.

Sincerely,

Stephen M. Koper
Brigadier General, USAF, (ret)
President