[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]





                   UNIFORMED SERVICES EMPLOYMENT AND
                      REEMPLOYMENT RIGHTS ACT AND
                 SERVICEMEMBERS CIVIL RELIEF ACT ISSUES

=======================================================================

                             FIELD 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
                 FIELD HEARING HELD IN BENTONVILLE, AR

                               __________

                           Serial No. 110-101

                               __________

       Printed for the use of the Committee on Veterans' Affairs





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                     COMMITTEE ON VETERANS' AFFAIRS

                    BOB FILNER, California, Chairman

CORRINE BROWN, Florida               STEVE BUYER, Indiana, Ranking
VIC SNYDER, Arkansas                 CLIFF STEARNS, Florida
MICHAEL H. MICHAUD, Maine            JERRY MORAN, Kansas
STEPHANIE HERSETH SANDLIN, South     HENRY E. BROWN, Jr., South 
Dakota                               Carolina
HARRY E. MITCHELL, Arizona           JEFF MILLER, Florida
JOHN J. HALL, New York               JOHN BOOZMAN, Arkansas
PHIL HARE, Illinois                  GINNY BROWN-WAITE, Florida
SHELLEY BERKLEY, Nevada              MICHAEL R. TURNER, Ohio
JOHN T. SALAZAR, Colorado            BRIAN P. BILBRAY, California
CIRO D. RODRIGUEZ, Texas             DOUG LAMBORN, Colorado
JOE DONNELLY, Indiana                GUS M. BILIRAKIS, Florida
JERRY McNERNEY, California           VERN BUCHANAN, Florida
ZACHARY T. SPACE, Ohio               STEVE SCALISE, Louisiana
TIMOTHY J. WALZ, Minnesota
DONALD J. CAZAYOUX, Jr., Louisiana

                   Malcom A. Shorter, Staff Director

                                 ______

                  SUBCOMMITTEE ON ECONOMIC OPPORTUNITY

          STEPHANIE HERSETH SANDLIN, South Dakota, Chairwoman

JOE DONNELLY, Indiana                JOHN BOOZMAN, Arkansas, Ranking
JERRY McCNERNEY, California          JERRY MORAN, Kansas
JOHN J. HALL, New York               STEVE SCALISE, Louisiana

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.







                            C O N T E N T S

                               __________

                            August 18, 2008

                                                                   Page
Uniformed Services Employment and Reemployment Rights Act and 
  Servicemembers Civil Relief Act Issues.........................     1

                           OPENING STATEMENTS

Chairwoman Stephanie Herseth Sandlin.............................     1
    Prepared statement of Chairwoman Herseth Sandlin.............    42
Hon. John Boozman, Ranking Republican Member.....................     3
    Prepared statement of Congressman Boozman....................    43

                               WITNESSES

U.S. Office of Special Counsel, James P. Mitchell, Chief of 
  Staff, Director of Communications..............................    32
    Prepared statement of Mr. Mitchell...........................    60
U.S. Department of Labor, John M. McWilliam, Deputy Assistant 
  Secretary, Veterans' Employment and Training Service...........    34
    Prepared statement of Mr. McWilliam..........................    64
American Legion, Department of Arkansas, William Vines, 
  Commander,
  Post 31........................................................    22
    Prepared statement of Mr. Vines..............................    57
Major General William D. Wofford, Adjutant General...............    12
    Prepared statement of General Wofford........................    45
Captain Thomas Lee, Staff Judge Advocate.........................    14
    Prepared statement of Captain Lee............................    49
Arkansas University Small Business Development Center, Arkansas 
  State University, State University, AR, Herb Lawrence, Center 
  Director.......................................................    20
    Prepared statement of Mr. Lawrence...........................    53
Employer Support of the Guard and Reserve, Don Morrow, Chairman, 
  Arkansas Field Committee.......................................    18
    Prepared statement of Mr. Morrow.............................    52
Merritt, Lieutenant Colonel Michael D., Deputy Brigade Commander, 
  142d Fires Brigade, Arkansas Army National Guard...............     6
    Prepared statement of Colonel Merritt........................    44
Smith, Paige, Fayetteville, AR, Family Readiness Coordinator for 
  Headquarters 142d Fires Brigade, Arkansas National Guard.......     4
    Prepared statement of Ms. Smith..............................    43

                   MATERIAL SUBMITTED FOR THE RECORD

    Hon. Stephanie Herseth Sandlin, Chairwoman, Subcommittee on 
      Economic Opportunities, Committee on Veterans' Affairs, to 
      John McWilliam, Deputy Assistant Secretary, Veterans' 
      Employment and Training Service, U.S. Department of Labor, 
      letter dated August 26, 2008, and response letter dated 
      October 7, 2008............................................    69

 
                   UNIFORMED SERVICES EMPLOYMENT AND
                      REEMPLOYMENT RIGHTS ACT AND
                    SERVICEMEMBERS CIVIL RELIEF ACT
                                 ISSUES

                              ----------                              


                        MONDAY, AUGUST 18, 2008

            U. S. House of Representatives,
                    Committee on Veterans' Affairs,
                      Subcommittee on Economic Opportunity,
                                                    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 
service men 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 6 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 prepared statement of Chairwoman Herseth Sandlin 
appears on p. 42.]
    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 prepared statement of Congressman Boozman appears on 
p. 43.]
    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 5 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 5 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

                    STATEMENT OF PAIGE SMITH

    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 6 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 6 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 prepared statement of Ms. Smith appears on p. 43.]
    Ms. Herseth Sandlin. Thank you, Ms. Smith.
    Mr. Merritt, you are now recognized for 5 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 4 years on active 
duty before leaving active duty and beginning a civilian career 
and joining the Army National Guard. Over the course 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 prepared statement of Colonel Merritt appears on p. 
44.]
    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 workforce, 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 [continuing]. 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 [continuing]. Is a week a sufficient 
amount of time? Do you think 2 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 
timeframe. 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 [continuing]. 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 2 
weeks, then they wouldn't have to take it----
    Ms. Herseth Sandlin. Uh-huh.
    Ms. Smith [continuing]. 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 [continuing]. 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 of 
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 
toward. 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 [continuing]. 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 [continuing]. 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 the 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 [continuing]. 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 5 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 6 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 7 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 4 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 prepared statement of General Wofford appears on p. 
45.]
    Ms. Herseth Sandlin. Thank you, General Wofford.
    Captain Lee, you're recognized for 5 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 5 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 6 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 6 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 6 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 prepared statement of Captain Lee appears on p. 49.]
    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 6 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 [continuing]. 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 [continuing]. 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 [continuing]. 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 [continuing]. 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're deployed and when they get back home and it takes 
education of the family. And as Ms. Smith said, they need time 
to get to know each other, to become reacquainted. And I think 
that is one of the greatest things that we can do and are doing 
now. It's just taken us a long time to figure that out.
    Mr. Boozman. We really have some excellent credit 
counseling resources and things. And I would hope--and I know 
that you all are working----
    General Wofford. Yes, sir.
    Mr. Boozman [continuing]. Really hard in trying to see how 
we can integrate those things to ward off problems. I had the 
opportunity of being with the General in Iraq a few weeks ago, 
and I do want to compliment you for the great job that you're 
doing. And you can tell by the way that you are received over 
there, that they have a lot of admiration for the job that 
you're doing, so give yourself a pat.
    General Wofford. Thank you, sir.
    Mr. Boozman. And we really do appreciate you guys. Thank 
you for being here.
    Captain Lee. Thank you.
    General Wofford. Thank you.
    Ms. Herseth Sandlin. Thank you, both, for your insight, 
leadership and your service to our men and women in uniform. We 
look forward to following up with you on some of the 
recommendations and insights that you've offered to the 
Subcommittee today.
    General Wofford. Thank you.
    Ms. Herseth Sandlin. Thank you, again, for your testimony.
    We would now like to welcome the third panel. Joining us is 

Mr. Don Morrow, Arkansas Chairman of Employer Support for the 
Guard and Reserve; Mr. Herb Lawrence, Center Director for the 
Small Business Development Center (SBDC) of Arkansas State 
University; and Mr. William Vines, Commander of Post 31 in the 
Department of Arkansas, the American Legion.
    Gentlemen, welcome. Thank you for being here with us today. 
We look forward to your testimony. Mr. Morrow, we begin with 
you. You are recognized for 5 minutes.

 STATEMENTS OF DON MORROW, CHAIRMAN, ARKANSAS FIELD COMMITTEE, 
   EMPLOYER SUPPORT OF THE GUARD AND RESERVE; HERB LAWRENCE, 
CENTER DIRECTOR, ARKANSAS UNIVERSITY SMALL BUSINESS DEVELOPMENT 
 CENTER, ARKANSAS STATE UNIVERSITY, STATE UNIVERSITY, AR; AND 
WILLIAM VINES, COMMANDER, POST 31, AMERICAN LEGION, DEPARTMENT 
                          OF ARKANSAS

                    STATEMENT OF DON MORROW

    Mr. Morrow. Chairwoman Herseth Sandlin, Mr. Boozman, thank 
you for the invitation to offer my perspective on issues 
relating to the Uniformed Services Employment and Reemployment 
Rights Act (USERRA) as it applies to the Arkansas National 
Guard and Reserve members and their employers.
    USERRA 1994 protects the employment and reemployment rights 
of Federal and non-Federal employees who leave their employment 
to perform military service.
    The role of informing servicemembers and employers about 
this law and enforcing it falls to several different government 
organizations. It should be noted that USERRA covers all 
employees except screeners employed by the Transportation 
Security Administration.
    ESGR is a Department of Defense organization that seeks to 
develop and promote a culture in which the American employers 
support the value of military service of their employees. We do 
this by recognizing outstanding support, increasing awareness 
of the law and resolving conflicts through mediation. Gaining 
and maintaining employer support requires a strong network 
composed of both military and civilian employer leaders that's 
capable of providing communication, education and exchange of 
information. ESGR works with the Reserve component leadership 
of each service, appropriate government organizations such as 
the U.S. Department of Labor (DOL) and the U.S. Small Business 
Administration (SBA) and industry associations such as chambers 
of commerce and others to create broad based, nationwide 
support for our troops.
    It's important to note that ESGR is not an enforcement 
agency and we do not have statutory authority to offer formal 
legal counsel or to participate in any formal investigation or 
litigation process. Our part in USERRA issue is to inform and 
educate our customers, the servicemembers and their civilian 
employers, regarding their rights and responsibility under the 
USERRA statute; also to provide mediation service.
    We have approximately 900 volunteer ombudsmen throughout 
the country and a national call center in Arlington, Virginia, 
to provide this service. Our call center received 13,116 
requests for assistance during Fiscal 2007. Of these calls, 171 
were from servicemembers or their civilian employers in 
Arkansas. Of those requests, 10,742, 129 for Arkansas, were 
informative in nature; that is, they were sufficiently resolved 
by providing information about the law. The remaining 2,374, 42 
for Arkansas, were assigned as cases to our ombudsmen.
    Through a Memorandum of Understanding between ESGR and DOL 
Veterans' Employment and Training Service (VETS), ESGR informs 
those servicemembers whose cases ESGR is unable to successfully 
mediate within 14 days of their options to either contact the 
DOL or to retain private counsel. During Fiscal 2007, ESGR 
referred 416 cases to DOL. It should be further noted that ESGR 
mediation process is covered by the Administrative Dispute 
Resolution Act of 1996, which minimizes the amount of specific 
data that can be released about individual cases.
    The ESGR's mandate ends at this point in the USERRA 
process. As I understand it, the Department of Labor 
investigates and attempts to resolve these claims that are 
filed by the servicemembers. If not successful, DOL informs the 
Federal claimant that they may have their claims referred to 
the Office of Special Counsel and informs the non-Federal 
claimants that they may engage Department of Justice. Of 
course, all parties reserve the right to engage private counsel 
at any time.
    As of June 30th, 2008, 651,918 Reserve component members 
have been mobilized since the terrorist attacks of 11 
September. There are 108,010 Reserve component members 
mobilized as of July the 30th. As of June, 2008, Arkansas had 
16,726 Reserve component members. The use of the Reserve 
component has shifted from a strategic reserve to an 
operational reserve, whereby members of the National Guard and 
Reserve no longer are forces held in reserve, but are integral 
and integrated part of the total force.
    I see I'm running out of time, so let me thank you for 
allowing me to give my testimony today. And I'll be happy to 
answer any questions.
    [The prepared statement of Mr. Morrow appears on p. 52.]
    Ms. Herseth Sandlin. Thank you, Mr. Morrow.
    Mr. Lawrence, you are recognized for 5 minutes.

                   STATEMENT OF HERB LAWRENCE

    Mr. Lawrence. Thank you. Chairwoman Sandlin, Congressman 
Boozman, Members of the Subcommittee, as a retired military 
officer, as a father of a son who just returned from the surge 
and all the soldiers who are coming after me, I thank you for 
allowing me to speak to this Subcommittee.
    I am the State--the Small Business Development Center 
Director for Arkansas State University, part of a statewide 
small business network. We have been working with small 
business owners who are involved in deployment for the past 
several years. Continued deployment of National Guard and 
Reserve military personnel in the Global War on Terror, who are 
also businessowners, has created additional hardships on these 
Reserve components' servicemembers. Nationally, continued 
deployment of this subgroup of Guardsmen and Reservists has 
resulted in numerous business failures, losses of business 
income, bankruptcies and economic challenges to their 
enterprises. They have created undue hardships on their 
civilian career.
    The playing field between the Reserve component 
businessowner and the non-military businessowner is no longer 
even. And their service to our country comes at a significant 
sacrifice to their civilian endeavors.
    USERRA, especially in terms of its impact on interest rate 
caps and deployment loans, does not appear to me to 
differentiate between consumer-related loans and business loans 
and does not appear to prohibit its application to business 
loans.
    However, we do have a number of consumer--excuse me--of 
commercial lenders out there who are confused about exactly 
what impact the Service Civil Relief Act has on businessowners, 
especially because of the variety of loans that those 
businesses might have. A small businessowner could have 
revolving lines of credit, as well as business term loans, 
business credit card loans, equipment leasing, accounts 
receivable factoring; all of which are critical to sustain most 
business endeavors, but are challenged by some lenders. I 
believe it is more out of not knowing the law and what they are 
required to do, as opposed to not wanting to support our 
servicemembers.
    The Servicemembers Civil Relief Act, clarification for 
commercial lenders to their obligations, to business-related 
loans needs to be more clearly defined to the lender. 
Additionally, servicemembers who are businessowners, need to be 
identified by command prior to deployment and access to 
consulting and counseling business assistance needs to be 
provided that targets the debt obligations and the options 
available to those servicemembers to reduce the negative impact 
of servicing those loans during and upon return from active 
duty.
    Also, the time limits on removal of the six percent cap 
should be expanded for businessowner servicemembers upon their 
return to ensure they have the best opportunity to get their 
businesses back to pre-deployment levels of revenues and 
customer bases to ensure they can service the debt. If I work 
for someone else and I go back to my job and get my due level 
of--and my old level of income, having that eight percent back 
is not an issue. But for small businessowners who have lost 
significant revenues during that 12-month period, putting them 
back to eight percent or 9 percent may not be to their benefit. 
If there's a way we can expand the timeframe to allow them to 
continue that 6 percent until they can regain that, it would be 
helpful.
    Current assistance to service related businessowners called 
to active duty is inadequate to help keep many of them 
operational or to help them rebuild upon redeployment. The U.S. 
Small Business Administration programs aimed specifically at 
veteran and Reserve component businessowners have improved 
dramatically, but are still not sufficient to meet all of their 
needs. The Patriot Express Loan Guaranty Loan Program is not 
available to many commercial lenders. Additionally, the SBA 
Direct Loan Program for military servicemembers, the Economic 
Injury Disaster Loan (EIDL), is only a stopgap at present time 
and is limited to working capital. The EIDL should be expanded 
to help refinance existing business-related debt, provide 
deferments where possible and repayment until reasonable time 
after redeployment to be expanded to meet the needs, as well as 
working capital. Not all businesses need it, but there are a 
number that we've worked with who could have used that 
assistance.
    In summary, our soldiers aren't looking for a handout and 
they're not looking for a subsidy. What they want is assistance 
to help them regain their competitiveness and to level--and to 
levelize their playingfield.
    And very quickly I'll make a comment too that--to follow up 
with the General on his discussion of seeing some employers 
having problems wanting to hire Guardsmen.
    I had an informal poll of a number of my lenders, asking if 
an individual came in--all things being equal, credit history, 
collateral, ability to repay--that came in and asked for a new 
loan, and they knew that individual was a Guardsman or a 
Reservist and if there was a good chance of being deployed, 
would that impact their decision? Obviously, they wouldn't come 
out and say, Absolutely, it would, but they did say that would 
be a significant challenge to overcome in making a decision to 
make another loan to these individuals.
    I thank you very much for your time to listen to me. Thank 
you.
    [The prepared statement of Mr. Lawrence appears on p. 53.]
    Ms. Herseth Sandlin. Thank you, Mr. Lawrence.
    Commander, you are now recognized.

                   STATEMENT OF WILLIAM VINES

    Mr. Vines. Thank you. As commander of the American Legion 
Post in Fort Smith, I'm honored to be asked to represent the 
American Legion for the State of Arkansas, and I'm happy to be 
on a panel with the good General Wofford there and to be 
working with my favorite Congressman, John Boozman. Both of 
these gentlemen are well respected, well known and the troops 
really honor and respect both of them here in this part of the 
State.
    In fact, the good Congressman told me and I'm very pleased 
to be in the presence of--he said that Chairlady Sandlin would 
be the next Governor of the State of South Dakota----
    Ms. Herseth Sandlin. Thank----
    Mr. Vines [continuing]. Followed immediately by that you 
would be the next U.S. Senator from South Dakota, so we're very 
proud to be here with you.
    Ms. Herseth Sandlin. Thank you.
    Mr. Vines. And we welcome you and all those from out of 
State and those from across the State to beautiful Northwest 
Arkansas. And I hope John has had an opportunity to show you 
all the scenic beauty of our State, our tree-covered mountains 
and the fresh air that we have here and the beautiful clear 
waters of Beaver Lake, which is just a few miles east of us 
here. And I know that my formal statement is on the record, so 
I'm going to kind of jump around here and hit things that are 
near and dear to my heart.
    Just a few miles down the road in Fort Smith and Van Buren, 
just sitting in the river bottom across the river from each 
other and most of our industry in the State of Arkansas is 
located in the river bottom and, of course, we have Whirlpool, 
Baldor Electric, Hiram Walker, Planter's Peanuts--some of the 
big name brand industries, as well as many smaller industries 
that service them.
    And, of course, up here in the mountains, you have Bekaert 
Steel and the two world class corporations, Wal-Mart and Tyson 
Foods, so we have a lot of industry. Right here in Bentonville 
where we are now, there's a Guard unit and many of the towns 
around here have Guard units, so these fellows--we have a good 
education system here in Northwest Arkansas.
    We have good schools and I feel like our people get a 
little better education, maybe, than they would a lot of other 
places. Consequently, with all this concentration of industry 
and with the troops in the Guard, we have a lot of our 
employees are Guardsmen. And this has always been the as I 
think Colonel--well, our good Colonel back there mentioned and 
General Wofford both--it's always been kind of a plus to be in 
the Guard because these people knew they were going to be 
hiring a good troop, a little better than troop. And when they 
hire them and they've come in and they really advance a little 
faster than their peers because of the training they've had, a 
good education and the military training which teaches you a 
lot of leadership and chain of command and how to deal with 
problems.
    Consequently, when they are deployed as we are now so often 
being deployed, this is a tough deal for the employers. It's 
tough on the family. It's tough on the troop, but it's also 
hard on these employers. And, as we mentioned earlier, the 
smaller the company, the harder it is. So I just--in fact, this 
past Friday, met with several of our industrial leaders and 
CEOs there in Fort Smith, and we had a nice, little informal 
conversation. And one of the things that they mentioned 
having--they know I've been involved with the military for 40 
years, and been involved with the industry for 40 years, and 
I've been both an employee and an employer and I kind of see 
both sides of the coin here.
    And they know they can trust me. I'm not going to tell it 
to you who they are, but they have said in this meeting that 
they really now are a little hesitant about hiring our Guard 
troops. When they find out that they're going to the Guard, 
they really kind of give it some thought.
    So I think we need to not only take care of the troops and 
the families, but we need to also look after these employers 
and give them some perks, you know; take care of the folks who 
are taking care of us by--I don't know--give them tax breaks. 
Give them preferential--some of these government contracts--the 
many government contracts we have, maybe look at those 
employers who support the military effort toward getting those 
contracts. We just need to look after the employers as well as 
we do our own troops. And I think we do a good job with the 
troops. When they go off, they know what they have coming to 
them and many times, they know it better than the employer 
does, so, yes, ma'am, thank you.
    [The prepared statement of Mr. Vines appears on p. 57.]
    Ms. Herseth Sandlin. Well, thank you, Commander.
    Let me start with a question for both you, Mr. Vines, and 
Mr. Morrow.
    Let me read to you a section of General Wofford's testimony 
and pose a similar question to you as I did to him in terms of 
what you hear the most from employers that would be helpful to 
address this issue of a current disincentive because of the 
deployment pace among National Guard versus what we can do to 
offset that.
    One recommendation is a tax incentive for employers. 
Another is to provide health benefits for servicemembers and 
their families on an ongoing basis so businesses don't have to 
provide healthcare as a part of the benefits package. Also, 
eliminating Social Security and retirement penalties for those 
retirees who temporarily backfill deployed or mobilized 
servicemembers would provide considerable relief. Another is 
reimburse replacement training expenses for businesses and, 
finally, reimbursing municipalities for overtime for policemen 
or firefighters who are required to fill in for deployed 
servicemembers would go a long way to providing a strong 
support network.
    Which of those do you hear the most would be most helpful 
to employers in making decisions to overcome any hesitation 
now? Would it be the healthcare benefits as General Wofford has 
been hearing the most? Is it a different incentive, like a tax 
incentive? Mr. Morrow, what do you think?
    Mr. Morrow. Well, as General Wofford mentioned, I think 
probably the healthcare incentive might be the most practical. 
Obviously, we hear a great deal about tax incentives. And I 
think the somewhat recent idea of being able to forgive some of 
the employment taxes for hiring the replacements, I think, is 
one of the items that I hear a good bit about. And you 
mentioned municipalities. Municipalities are probably unfairly 
hit. Perhaps, unfair might be the wrong term, but we certainly 
have a high percentage of policemen, firemen, municipal 
employees in the Guard and Reserve.
    And we have a lot of cities that's been hit very, very 
heavily with their police force, their firefighters. And it's 
very difficult to hire replacements for those individuals. In 
many cases, what the employers are saying, If you allow us to 
hire some of these recent retirees back in to fill those 
positions and give us a tax break in that process might be an 
effective procedure for us.
    Ms. Herseth Sandlin. Mr. Vines?
    Mr. Vines. I think the tax breaks, definitely, would be 
number one on the list. And I think if there's any way that we 
can work this out so the corporations have a preferential 
bidding situation on government contracts and so forth, I hear 
that a lot. With our industry in Fort Smith and--and with our--
some of the big construction companies, that would certainly 
play a part. And we need to keep these employers happy because, 
you know, if they're not happy and Mama's not happy, then the 
troop's not going to re-up. And it all really is just one big 
ball of wax there that needs to be dealt with.
    And I hope that we can do something to limit the number of 
deployments. I hope this will kind of calm down a little bit. 
And in talking to young people about the fact that they ought 
to be joining the Guard and all the great benefits we have, I 
keep telling them, this is all going to settle down here one of 
these days and you don't have to worry about going off and 
leaving your loved ones and leaving your job. But when they do, 
they need to know that they come back to and our employers in 
this area are very patriotic. We don't have much problem. Any 
problem we have, I notice, is kind of where the rubber hits the 
road there. It's the shop foreman or the guy on the loading 
dock who says, no, you can't go to Guard drill Saturday. You've 
got to be here. Don't care what the law is. Don't care what the 
military says. I want this truck loaded on Saturday morning, or 
I'm in big trouble with the boss.
    And, you know, so we discussed that Friday, that we would 
also make certain that it gets down through the ranks----
    Ms. Herseth Sandlin. Uh-huh.
    Mr. Vines [continuing]. That the law is down through the 
ranks and that they have to go by it. But we also need to--the 
troops need to certainly let the employers know ahead of time 
when they're going to be gone, when they want to be gone. And 
this is one of the things that is stressed, that they, as soon 
as they can and as early as possible, let their employer know.
    But, you know, this is the big deal for me. I think that 
working through the employers, we can do an awful lot of good 
for the employees.
    Ms. Herseth Sandlin. Thank you.
    Mr. Vines. Yes, ma'am.
    Ms. Herseth Sandlin. I have some additional questions for 
each of you. Right now, I'd like to recognize Mr. Boozman.
    Mr. Boozman. Thank you, Madam Chair.
    General Morrow, I could have said the same things about you 
a few years ago, in the sense when you led our last deployment 
so successfully, you have done such a great job. You're so well 
respected and we really do appreciate your service to our 
country.
    One of the things that would be helpful in following up on 
the Chair's question is, we have this cost to the 
municipalities. We have it to small business. We have it to, as 
Mr. Vines was saying, to our major industries like Planter's 
Peanuts or whatever. One of the things that would be helpful is 
in quantifying that, you know.
    And do you have any experience in that, Mr. Lawrence. Do 
you--I mean, is there data that we can say Arkansas, you know, 
this or that deployment is costing small business this amount 
of money and could give some examples for our municipalities 
or----
    Mr. Lawrence. I can certainly tell you the number of 
Guardsmen who it appears to be impacted who are small 
businessowners. The SBA nationally will say 7 percent are self-
employed or sole proprietors. When you add to that those who 
are in partnerships, closely held corporations, I've seen 
numbers as much as 12 to 
14 percent. I work--thanks to General Wofford, I was able to 
attend most of the 39th Brigade's SRPs; identify those small 
businessowners; provide them with a business mobilization 
planning guide.
    And I came up and met with 253 self-professed small 
businessowners out of about 2,600, so as far as the percentage 
who are involved, I would say we're probably right on national 
averages. As far as our failures at the moment, I'm not sure 
we're seeing. All of mine is coming from those soldiers who are 
coming back who go, I need help. I've run out. And so I'm 
seeing, as a small business development center director, on an 
individual basis.
    One thing we are trying to do through the Small Business 
Development Center Network is to find some way to start 
surveying Arkansas Guardsmen as they're coming back. Are you a 
businessowner? Were you a businessowner? Have you faced issues? 
What challenge? We're trying to quantify that, but, actually, 
at the present time, it's pretty much still anecdotal. I knew 
to come see you because I had problems with my lawn care 
business. All my customers went to my competitors, but the bank 
wants their money. So at that moment, it's mainly anecdotal 
from the small business side as far as the actual failures.
    Mr. Boozman. Well, I think anything we can do to quantify 
that would be real helpful. The other thing, we've got the 
hardship on the Guardsmen themselves. And then, again, so many 
of our small businesses--I don't know what is the average size 
of the small businesses in Arkansas, but it's--you know, it 
might be seven or eight employees. And, if a key guy is gone, 
then certainly, we need to quantify how much that's costing so 
that we can look at--we need some arguments to move forward 
with considering health insurance, considering tax breaks, 
considering some of the things that you all have said. This 
will be good for business and moving forward.
    But we do appreciate you. We appreciate all that Arkansas 
State is doing----
    Mr. Lawrence. Thank you.
    Mr. Boozman [continuing]. In this regard. They're really 
becoming a--somebody that has really picked the ball up and 
we're very, very proud of their efforts.
    Mr. Lawrence. The PRIDE Center has been very effective 
there as well, yes, sir.
    Mr. Boozman. Very much.
    And then you might just take a second and just describe 
what's going on with the center.
    Mr. Lawrence. With the PRIDE Center.
    Mr. Boozman. Yes, sir.
    Mr. Lawrence. Okay. Yes, sir, the--ASU, Arkansas State 
University was fortunate enough to receive funding from an 
alumnus, who is also retired military, who is concerned about 
the impact of all the returning veterans, whether they're 
Guard, Reserves or active duty--coming off of active duty who 
are suffering some type of injuries, be it physical, be it 
mental, psychological.
    And they developed what is called the Beck, B-E-C-K, PRIDE 
Center in our College of Nursing and Allied Health. And it is 
a--basically, a clinic without walls.
    They've hired several consultants, most of whom are prior 
military and as a servicemember comes back, they're suffering 
whether it's a physical issue or mental, they can go and work 
through them. They will help them get to the U.S. Department of 
Veterans Affairs (VA), if necessary; help them with other types 
of concern of outside consulting, clinical issues that occur. 
And it's all confidential and they've been very successful, as 
well as going further. Helping them to looking at getting into 
school, dealing with their handicaps, especially if they've 
lost limbs; finding opportunities in the civilian world to 
become effective and contribute.
    And it's just been one of those that, thanks to an alumnus, 
Mr. Beck, and to the dedication of our Dean of the College of 
Nursing and Allied Health, Susan Hanrahan and Susan Tonymon, 
who's the PRIDE Center Director. It's just taken off. My 
Center, I feel, is very fortunate to be able to work with them, 
as they have their servicemembers come in that have issues to 
start a business, so an excellent job being done over there in 
Northeast Arkansas. We're very proud of them.
    Mr. Boozman. Yeah, I know they've become a big part of the 
task force that Mr. Westmoreland's----
    Mr. Lawrence. Yes.
    Mr. Boozman [continuing]. Heading to--to try and to be 
helpful.
    Thank you.
    Ms. Herseth Sandlin. Okay. Well, thank you. I appreciate 
learning more about what's been happening in other States, 
especially with some of our universities, to provide more 
outreach and services to our returning veterans.
    Mr. Lawrence, are you familiar with the Transition 
Assistance Program?
    Mr. Lawrence. Yes.
    Ms. Herseth Sandlin. Yes? You state that, a minimum, 
businessowners should be identified and they should be made 
aware of how Servicemembers Civil Relief Act can assist them 
with their business debt.
    Is this something we should be doing in the TAP program.
    Mr. Lawrence. We do use that, the Transition Assistance 
Program----
    Ms. Herseth Sandlin. Here----
    Mr. Lawrence [continuing]. Here in Arkansas.
    Ms. Herseth Sandlin [continuing]. USERRA----
    Mr. Lawrence. Yes.
    Ms. Herseth SAndlin [continuing]. Is offered here at the 
bases in Arkansas.
    Mr. Lawrence. Here in Arkansas and this because we're 
looking at Federal and possibly on a national basis. When 
General Wofford took over as Adjutant General, I pulled--I went 
and spoke with him and asked him about the impact of the 
deployment of small businessowners with the 39th Brigade, at 
which point General Wofford, being General Wofford, said, go 
find out and come up with something.
    And the answer was we prepared with their office, the 
Arkansas National Guard, the business mobilization planning 
guide so that when I would identify a businessowner, we would 
give them this guide; work with them to try and help. When we 
worked with the 39th, General Wofford turned me over to the 
Transition Assistance Office and I developed a very strong 
relationship with Ms. Barbara Lee. And it's worked very 
successfully here in Arkansas, and so it's a model that we're 
hoping we can--you know, can be carried forward into other 
States, in addition to just the deploying servicemembers, so I 
go to every SRP that occurs or my staff does----
    Ms. Herseth Sandlin. Uh-huh.
    Mr. Lawrence [continuing]. And work right beside the 
Transition Assistance and with the Employer Support. 
Additionally, we are involved in all of the reintegration 
briefings. So when a unit returns back from deployment, we are 
there with the Transition Assistance Office, identifying those 
who we obviously missed since we didn't start this until about 
18 months ago, who had been deployed. Are you a businessowner. 
Do you need help? What can we do? Because all the assistance 
through the Small Business Development Center system is free of 
charge and absolutely confidential.
    So it's just allowing us to see, yes, I need some help. 
I've got problems. And we identify who they are, where they're 
located because my Center works only in the northeast part of 
the State. I then turn them over to the appropriate--my 
counterpart, wherever they may be; if they're up here, to the 
University of Arkansas, Fayetteville, SBDC. And also, we get a 
lot who are saying, You know, I'm really interested in starting 
a business. What do I need to do? And so we help them.
    Our State Director for the Small Business Development 
Center Network has even made all of our Starting a Business in 
Arkansas workshops that we do throughout the State free of 
charge to any Guardsman, Reservist, any veteran and his spouse 
who wants to attend, just to try and help them. So we've been 
very fortunate in being able to work hand-in-glove with the 
Transition Assistance Office and it's been a very beneficial 
relationship.
    Ms. Herseth Sandlin. I appreciate that.
    In our two prior field hearings, we focused, specifically, 
on TAP and in the prior Congress under Mr. Boozman's 
leadership, we had other field hearings that focused on 
Transition Assistance. You're absolutely right in terms of 
trying to find models that are working in States and we find 
consistently that Arkansas and the leadership in the National 
Guard is furthering models that can work effectively in other 
States. That's part of what we're trying to do here, as well as 
find out more to share best practices, even if it does not end 
up being legislation and a change in policy. It's sharing 
information to the public is another one of our 
responsibilities on the Subcommittee, so I appreciate your 
information.
    Mr. Lawrence. Well, in fact, the work that the Transition 
Assistance Office did--has been doing with the small business--
Guard's members who are small businesses, she was actually 
nominated and won the Arkansas Small Business Administration 
Veteran Champion of the Year for her work with the veteran--
with the----
    Ms. Herseth Sandlin. That's great.
    Mr. Lawrence [continuing]. SBA and with her veterans.
    Ms. Herseth Sandlin. That's great and that's a great segue 
for my next question for you. Who should have the lead 
responsibility in educating commercial lenders? Should it be 
SBA? Should it be the U.S. Department of Veterans Affairs?
    Mr. Lawrence. I would say that the VA would be more--might 
be better able to do that. And the only reason I would say that 
is some lenders are not pro-SBA, and so, you know, for whatever 
reason. And so they may have an SBA person come in and not want 
to listen. And now I think the SBA could effectively do that. 
They do deal with lenders on a daily basis. I'm not sure given 
the size of the SBA----
    Ms. Herseth Sandlin. Uh-huh.
    Mr. Lawrence [continuing]. I mean, there's----
    Ms. Herseth Sandlin. Yes.
    Mr. Lawrence [continuing]. There's more employees at the 
McClelland VA Hospital than there is in the entire Small 
Business Administration that they would have the ability to do 
that.
    Ms. Herseth Sandlin. Okay.
    Mr. Lawrence. But I would say from a size standpoint, 
possibly, the VA would be a better unbiased person to talk with 
lenders.
    Ms. Herseth Sandlin. A final question for you, Mr. 
Lawrence. You had stated that the 6 percent interest cap should 
be expanded to give the businessowner time during that 
reintegration and readjustment period.
    Do you have any suggestions on what a reasonable time 
period would be, 6 months? Longer?
    Mr. Lawrence. Possibly. Well, it would depend on the 
business. I hate to use that. Some may not need it at all, but 
if you think that many of these Guardsmen spend a number of 
years building their business to the point it could generate 
enough revenues to be able to support the pre-deployment debt 
level. And then they leave and they are the key person in that 
business, so that their revenues, their customer base, 
basically, goes away because no matter how much you may like 
that individual, if you need that service, you can't wait 12 
months.
    And so they see that erosion of their customer base. It's 
going to take them some time to rebuild the customer base; to 
bring their revenue level back up to where they can service 
that debt. At a minimum, I would think 6 months would be a 
reasonable amount. There might be some--like, if you were in a 
consulting business, that might have to go longer. But I would 
say 6 months would certainly be a good start.
    Ms. Herseth Sandlin. Okay. Just one or two more questions.
    Mr. Morrow, you're the former Adjutant General of the 
Arkansas National Guard?
    Mr. Morrow. Yes, ma'am.
    Ms. Herseth Sandlin. I'm sorry I didn't recognize that 
earlier. Thank you, General, for all of the other capacities in 
which you've served servicemembers here in Arkansas. You had 
stated that you're working to raise the awareness of USERRA for 
all members of the Reserve components. Are they all in Arkansas 
currently receiving that training and information?
    Mr. Morrow. Madam Chairwoman, the answer is yes, as it 
applies to units. When a unit is mobilized, regardless of the 
branch, we know about it. When Individual Ready Reserve (IRR) 
members are mobilized, we don't know about it, and so in 
several cases, we miss the IRR. However, the vast majority, 
obviously, are in organized units and we do manage to brief 
every unit.
    I'd also like to comment that in the area of educating 
employers, I think we do a very good job in educating the 
employers. It's very, very difficult to reach the small 
employers because when we have events, such as boss lifts, 
meetings at the various chambers around the State, we get the 
larger employers. For the past 2 years, we've had very 
successful meetings with the Society of Human Resource 
Management, SHRM. We've met with that conference for the last 2 
years; been very successful; have been able to brief those 
human resource managers.
    Also another big program with ESGR is the statements of 
support that we gain from employers. And Arkansas, currently, 
has reached its goal for this fiscal year. We've signed well 
over 682, which was our goal. We've signed well over that 
number of statements of support with various employers. And 
that's been done through meetings with chambers of commerce 
throughout the State, with various organizations in their 
annual meetings, the Association of Arkansas Counties, SHRM, as 
I mentioned and any other organization that we can get on their 
calendar for their annual meeting. I think we've been very 
successful there. And I think we've done a very good job in 
reaching the major employers.
    As I said, it's very, very difficult to get the small 
employer to attend those meetings. It's very difficult for them 
to give up the time to be able to attend those meetings.
    Ms. Herseth Sandlin. Well, I appreciate that insight. Going 
back to your first comments about the Individual Ready Reserve 
and that they're getting the training, the information on 
USERRA by units. One of the things that we have found out, 
starting in Indiana, and some of what we're hearing in DC, is 
this challenge, not just with regard to information on USERRA 
rights, but other benefits with the smaller detachments that 
are being deployed. It was one thing when it was the whole 
unit.
    The Adjutant General in South Dakota is trying to figure 
out ways to look at the services and information they're 
providing to the Reserve units, in addition to the National 
Guard. Because we are finding that the Reserve units are 
falling through the cracks, either as a unit or the smaller 
detachments than the individuals that are being deployed and 
attached to a larger unit at their mobilization site before 
deployment.
    You state that you become aware of when the unit gets 
deployed, right? Now, do you become aware of that because your 
office receives direct notification from the DoD, or is it just 
through people that you know in the community and news reports?
    Mr. Morrow. Well, it's actually a combination of all those 
things. However, Arkansas is probably in the more fortunate 
position there than a lot of other States. All the headquarters 
for the Reserve components in Arkansas, save one, are located 
at Camp Robinson.
    That's where our ESGR office is located. We have a very 
good relationship with the commanders of all those various 
Reserve component entities.
    The one that's an exception, however, is really not a 
problem for us because it's located at Little Rock Air Force 
Base. The Air Force Reserve is located there. All the others 
are at Camp Robinson, all within just a few miles of our State 
ESGR headquarters. And, as I said, with the relationship we 
have with those commanders, I don't think we miss any units. 
The individuals out there in the IRR, we don't know about 
those. We don't know about all of them.
    Ms. Herseth Sandlin. Let me just explain my frustration 
with the Department of Defense in so easily being able to find 
these individuals to mobilize them, but seemingly, having 
difficulty finding them when they're wanting to share 
information about their benefits. Then, of course, we have the 
issue of some of the blips when people were getting deployed 
and they were enrolled in TRICARE, and then all of a sudden, a 
family fell out of TRICARE. I mean, there were just things we 
had to work through.
    In your experience, do you think that it would be feasible 
and reasonable for the Department of Defense to be able to 
notify, assuming we can address all the privacy issues--but to 
notify every State ESGR office for individuals in Reserve 
components who are mobilized?
    Mr. Morrow. Well, ma'am, I think it'd be possible because 
when the notification is sent out for the servicemember to 
report, a notification could be sent to ESGR. We could then, at 
least, through telephone make some contact with that 
individual. So, yes, I assume there would be a way to do that. 
And, certainly, we'd be willing to make the contact and provide 
the information to the individual. We can provide it by mail. 
We can provide by telephone, if necessary.
    Ms. Herseth Sandlin. Thank you. I want to be real cognizant 
of our time, so I may submit a question in writing for you, Mr. 
Vines, because we do have one more panel. I appreciate all of 
your testimony today.
    Mr. Boozman, did you have any final questions.
    Mr. Boozman. Well, I'd just say that I think you're kind of 
in a unique situation, General, in the sense of seeing things 
in light of being the commander and all this you've got to deal 
with there. And then in your current capacity that, perhaps you 
and your guys could give that some thought as to how we could 
locate and do a better job of helping the individuals that are 
in that situation. Because it does seem as we've gone 
throughout the country and in Washington that really is a 
problem.
    And, again, especially, in visiting with their wives and 
this and that it's very easy to, when the brigade leaves or 
this or that leaves. It's just a whole different deal and some 
of those individuals seem to be just kind of left out of the 
mix. So any advice you could give us as far as how we could do 
a better job of that or how you see it could be handled in a 
way that is reasonable. That would be very, very helpful. We 
would appreciate it.
    Mr. Morrow. I assume the only way that can happen is for 
DoD to notify us because, otherwise, we have no means----
    Mr. Boozman. Right.
    Mr. Morrow [continuing]. Of knowing when those folks are 
mobilized. I would point out, as a percentage, they're a very 
minor percentage. However, again, they don't have a family 
support system----
    Mr.Boozman. Not----
    Mr. Morrow [continuing] Doing----
    Ms. Herseth Sandlin. Exactly.
    Mr. Morrow [continuing]. Anything for them.
    Mr. Boozman. And that's really where it came. We've noticed 
it as in the last panels, them talking about it and just really 
not having much support at all, so that would be very helpful.
    The Patriot Loan Program, why is it not available to some 
lenders?
    Mr. Lawrence. For a lender to be a Patriot Express Lender, 
that bank must first be a SBA Express Lender, and then they 
apply to become a Patriot Express. In order for you to become 
an SBA Express Lender, you have to have so many SBA guarantees 
on the books already. Your liquidation rates must be below a 
certain percentage. There's a number of hoops that a bank has 
to jump through because the benefits from the SBA's standpoint 
that they're giving that banker to use that express, requires 
them to really monitor very closely.
    So the result is while the larger banks, national banks, 
the big banks, are Patriot Express Lenders in Arkansas; 
Metropolitan National Bank, of course; Liberty Bank. I'm sure 
up here in Northwest Arkansas some of the large ones have gone 
through that process and are. The smaller banks, the First 
Community Bank of Batesville, the Citizens Bank of Salem, 
Arkansas, they may do one or two SBS guarantees a year and they 
haven't built the track record. Now, they may also have 
Guardsmen who are small business owners. The best they can--you 
know, their choice then is to say, You want to go to one of our 
competitors? And, of course, that's not--so that's the biggest 
challenge.
    The Patriot Express Program is a wonderful program is the 
Guardsman or the Reservist businessowner can find the bank that 
can do it for them. But it's just the requirements that the SBA 
has to impose does not allow it to go to every commercial 
lender that probably would like to use it.
    Mr. Boozman. I see. Mr. Vines, you're kind of in a unique 
position. I don't think anybody's more supportive in this State 
of you of our armed services, in every capacity.
    Mr. Vines. Thank you.
    Mr. Boozman. But working for a manufacturer, yourself being 
very active in the City of Fort Smith and very active in the 
manufacturing community, any help that you could give us in--in 
talking to those guys. We mentioned a number of different 
things, the tax breaks--the this and that. I'd like for you to 
really follow up on that and just kind of quantify that as to, 
some sort of ranking, as to what they felt like, whether it was 
health insurance or this or that. I think that would be very, 
very helpful.
    So I appreciate all of you guys. We just thank you for your 
service and thank you for all that you're doing for veterans in 
a variety of different ways. We appreciate you very much.
    Mr. Lawrence. Thank you.
    Mr. Vines. Thank you, Mr. Congressman and thank you, 
Governor.
    Ms. Herseth Sandlin. Mr. Lawrence, if we could get a copy 
for staff of some of the materials that you referenced, that 
would be helpful.
    Mr. Lawrence. Certainly. I brought several of these, as 
well.
    Ms. Herseth Sandlin. Thank you. Okay. Sorry I missed that. 
Thank you. Again, I appreciate all of your testimony and your 
service to country and for our Nation's veterans.
    We will now have our final panel join us at the witness 
table. We have joining us Mr. James Mitchell, Chief of Staff 
and Director of Communications for the Office of Special 
Counsel (OSC); and Mr. John McWilliam, Deputy Assistant 
Secretary of Veterans' Employment and Training Service in the 
U.S. Department of Labor. Who is accompanied by somebody you 
had introduced me to earlier from here in Arkansas. If you 
could introduce him to the rest of the audience because I think 
he's very familiar with Mr. Boozman.
    Mr. McWilliam. Thank you, Madam Chairwoman. I'm accompanied 
today by Mr. Roy Schultz, who is our newly hired Director for 
Veterans' Employment and Training within the State of Arkansas.
    Ms. Herseth Sandlin. Very good. Well, again, thank you for 
being here with us. We look forward to your testimony. We're 
pleased that you could be here to hear the testimony of prior 
panels.
    We will go ahead and start with you, Mr. Mitchell. You are 
recognized for 5 minutes.

 STATEMENTS OF JAMES P. MITCHELL, CHIEF OF STAFF, DIRECTOR OF 
  COMMUNICATIONS, U.S. OFFICE OF SPECIAL COUNSEL; AND JOHN M. 
MCWILLIAM, DEPUTY ASSISTANT SECRETARY, VETERANS' EMPLOYMENT AND 
           TRAINING SERVICE, U.S. DEPARTMENT OF LABOR

                 STATEMENT OF JAMES P. MITCHELL

    Mr. MITCHELL. Thank you, Chairwoman Herseth Sandlin, 
Ranking Member Boozman. Good morning. I'm James P. Mitchell, 
Chief of Staff and Director of Communications of the U.S. 
Office of Special Counsel or OSC. Thank you for the opportunity 
to provide our perspectives on the enforcement of USERRA, the 
Uniform Services Employment and Reemployment Rights Act.
    Our military members understand their obligations and they 
serve when called. Unfortunately, not all employers understand 
their obligations to their employees. And some servicemembers, 
mostly members of the National Guard and Reserve, return from 
active duty, but are turned away by their civilian employers 
who seem to be saying, welcome back. You're fired. This happens 
even when the employer is the same Federal Government that 
mobilized the servicemember.
    USERRA provides the strong enforcement mechanism for 
Federal employees, giving jurisdiction to the Merit System 
Protection Board. A complaint under USERRA may be made to the 
Department of Labor, Veterans' Employment and Training Service 
or VETS. If the employer is a Federal agency and VETS cannot 
resolve the claim, the complainant may request referral to OSC 
for possible prosecution. Also, cases with allegations of 
prohibited personnel practice violations, which come under our 
jurisdiction, are referred to OSC. While USERRA expanded OSC's 
role as a protector of the Federal merit system, it established 
a split process. First, VETS investigates. Then the matter may 
be referred to OSC for prosecution.
    To evaluate the potential advantages of having a single 
agency handle these claims, Congress in 2004 established a 
USERRA Demonstration Project, directing about half of Federal 
employee claims to OSC. During the Demonstration Project, which 
ran from February 2005 through December 2007, OSC obtained 
corrective action for servicemembers in over 30 percent of 
cases. This rate is significantly higher than achieved by other 
governmental investigative agencies. And that resulted from 
thorough investigations and legal analysis, educating Federal 
employers about USERRA and a credible threat of litigation, 
which itself, leads agencies to settle claims.
    We value the commitment of men and women of our military 
and work aggressively to safeguard the merit system enforcing 
USERRA. The Demonstration Project showed that Federal claimants 
who come to us get better and faster service. My statement, for 
the record, recounts examples of cases where OSC obtained 
employment and restored Federal employees' benefits. And beyond 
corrective action for the employee, OSC seeks to prevent future 
agency violations through, what we call, systemic corrective 
action. For example, we help agencies modify their leave and 
promotion policies to comply with USERRA. We provide USERRA 
training to personnel and we require agencies to post USERRA 
information.
    The Demonstration Project eliminated referral between 
agencies and allowed claimants to obtain faster, more effective 
relief. With a single entity handling and resolving cases, 
claimants benefited from a more efficient and transparent 
process that increases communication and accountability. 
Congress tied the outcome of the USERRA Demonstration Project 
to a U.S. Government Accountability Office (GAO) evaluation, 
but despite an April 1st, 2007, deadline, it was submitted to 
Congress only days before the August, 2007 recess. The 
Demonstration Project was to expire September 30th, so Congress 
had little time to act. Moreover, the GAO report did not 
address a central question; that being, are Federal-sector 
USERRA claimants better served when they can file complaints 
directly with OSC for both investigation and litigation.
    The Demonstration Project was, ultimately, extended to 
December 31st, but then OSC lost authority to accept direct 
USERRA claims by Federal employees. So where does this leave 
USERRA in enforcement? Today, more than 106,000 members of the 
National Guard and Reserve are mobilized. A quarter of them are 
Federal employees.
    Troops returning home in greater numbers could cause a 
spike in USERRA enforcement demand. However, enforcement 
capacity has been reduced, leading to problems for larger 
numbers of veterans; what we might call a Walter Reed moment 
for USERRA. Congress can recover this capacity by assigning the 
task of investigating and resolving USERRA claims by Federal 
employees to OSC, which specializes in the enforcement of 
Federal personnel laws. We are ready to do our part to make 
their transition back to civilian life as smooth as possible.
    Thank you for your attention. I look forward to your 
questions.
    [The prepared statement of Mr. Mitchell appears on p. 60.]
    Ms. Herseth Sandlin. Thank you.
    Mr. McWilliam?

                 STATEMENT OF JOHN M. McWILLIAM

    Mr. McWILLIAM. Thank you, Madam Chairwoman, and 
Mr. Boozman. Mr. Schultz and I are pleased to be here today to 
appear before the Subcommittee to discuss employment and 
reemployment concerns from deployments and multiple deployments 
of active duty and Reserve component servicemembers. Congress, 
of course, enacted USERRA to protect the employment rights of 
the men and women who leave their jobs while serving as members 
of our military.
    One of our Department's top priorities is to protect our 
military members' jobs when they're called up to serve. We work 
hand-in-hand with Defense and Justice and the Special Counsel 
to enforce USERRA. The Department of Labor both investigates 
complaints by servicemembers and veterans and administers a 
comprehensive outreach education and technical assistance 
program. We work closely with the ESGR to ensure servicemembers 
are briefed on their USERRA rights before and after they are 
mobilized.
    We conduct numerous USERRA outreach and education programs 
to inform servicemembers and employers on their rights and 
responsibilities under the law. Since 9/11, we have provided 
USERRA assistance to over 535,000 servicemembers, employers and 
others. This includes 341 USERRA mobilization and 
demobilization briefings given to over 267,000 servicemembers. 
The Defense Department reports in their Status of Forces Survey 
that on the average, each National Guard and Reserve component 
member receives two USERRA briefings. We believe the low rate 
of reported USERRA problems is due, in part, to our extensive 
outreach, the Agency's user friendly regulations, the 
collaborative efforts between Labor, Justice, Defense and 
Special Counsel and, in great part, to the tremendous support 
the vast majority of employers show for the Nation's men and 
women in uniform. VETS continues to provide support in all the 
States. We work very closely with the ESGR and the National 
Guard.
    We are looking forward to supporting the return of the 39th 
Brigade to Arkansas this year.
    Madam Chairwoman, the United States has the best, the most 
capable, the most advanced military in the world. The 
dedication to service and the willingness of our servicemembers 
to serve is inspiring. Labor takes seriously its 
responsibilities for assisting our veterans in returning to 
their previous employment, in finding good, new jobs and 
careers and in protecting their job rights.
    We are dedicated to doing everything possible to help 
protect their economic and job security. Mr. Schultz and I look 
forward to answering your questions.
    [The prepared statement of Mr. McWilliam appears on p. 64.]
    Ms. Herseth Sandlin. Thank you both for your testimony.
    We'll begin questions for this panel with Mr. Boozman.
    Mr. Boozman. Thank you very much. Mike Westbrook told me--
he said it was great to hear two agencies argue over who could 
do the best job for veterans, so we do appreciate that.
    You know, Mr. Mitchell makes a strong case, Mr. McWilliam, 
for doing that, with the success of the Demonstration Project 
and things and I've got a lawyer here that's licking his lips 
wanting to get after these people that either don't understand 
the law or are abusing it or whatever. You mentioned the good 
that you're doing as far as outreach and all of those things. 
You know, that wouldn't change, so I know you respond to 
somebody in your testimony, but what's the reason not to do 
that?
    Mr. McWilliam. Well, thank you, Mr. Boozman. We believe the 
Demonstration Program highlighted areas where we have improved 
our program. We have done that, particularly in reporting and 
in calculating. We have a very high satisfactory case 
resolution, as does the Office of Special Counsel. Thirty-one 
percent of our cases are either granted or settled. We have a 
53-day average case closing. We believe that there is an 
inherent advantage in having one agency investigate claims and 
then using other agencies to actually pursue the legal 
remedies, such as the Department of Justice does for the non-
Federal cases and the Special Counsel does for the Federal 
cases.
    Mr. Boozman. Very good. Do you want to respond? This is 
kind of fun.
    Mr. Mitchell. And we're sitting close enough together, too.
    Well, we think that when it comes to Federal claims, we are 
the specialists in that area. And one of the--I'm getting some 
backup here--one of the issues is that oftentimes a USERRA 
claim will also contain an allegation of a prohibitive 
personnel practice violation. And it is--when it goes to VETS, 
it's up to them to figure out that there's a prohibitive 
personnel practice in there and it's taken often a long time 
for VETS, which has spread all over the country--has a lot of 
people working on these issues; and many of whom are not really 
familiar with prohibitive personnel practices.
    So it can take quite awhile, many months sometimes, before 
we will see a claim referred to us. We think, frankly, there's 
a two-for here; that if we took over the Federal claims, it 
would free up VETS to focus on the non-Federal, the private 
sector, the State and local government claims, while we focused 
on the Federal where we are specialists. And we think that the 
Demonstration Project demonstrated that we were doing a 
superior job of dealing with the Federal claims.
    And it was very disappointing to have all this run out at 
the end of the year and with all the energy and all the 
enthusiasm that we had for enforcing USERRA. In fact, we had 
hired an individual who had been involved in writing the 
original USERRA litigation, Captain Sam Wright, was with us. 
And he was so disappointed that when we lost our ability to do 
direct USERRA cases that he went into private law practice, and 
so lost him. So it's been kind of a morale kick for us, but we 
really want to have USERRA back. We really want to contribute.
    Mr. Boozman. Very good. Today and then in other testimony, 
in Washington and stuff, we've had some conflicting testimony 
about whether or not USERRA cases are declining or are arising 
or whatever. Can you call comment about that? Do you feel like 
they're on the increase? Are they on the decline or stabilized 
or----
    Mr. Mitchell. Well, why don't you go ahead, John----
    Mr. McWilliam. All right.
    Mr. Mitchell [continuing]. Because they're on the decline 
for us, definitely.
    Mr. McWilliam. Mr. Boozman, they certainly are both in 
total number of cases, they're on decline and also in a ratio 
of number of cases per demobilized Guard and Reservist, which 
is a very key factor that we look at that has fallen 
significantly over recent years recently.
    Mr. Boozman. Does VETS, do they participate in the national 
conferences, the training events where, for instance, the 
Society for Human Resources Management that was alluded to 
earlier in the----
    Mr. McWilliam. Yes.
    Mr. Boozman [continuing]. Testimony.
    Mr. McWilliam. Yes, sir. We try to attend as many of those 
as we can. We attend SHRM each year and put up a booth and talk 
with people there. We go to a whole host of them. I have some 
examples. We participate in many human resources councils 
around the United States. We have recently gone to the 
Industrial Liaison Group of Arkansas and the Society of 
Professional Benefits Administrators. There's a whole series of 
associations of employment councils. We attend those meetings 
also and speak about USERRA.
    Mr. Boozman. Thank you, Madam Chair.
    Ms. Herseth Sandlin. Thank you, Mr. Boozman.
    Mr. Boozman. I'll turn it over to another lawyer.
    Ms. Herseth Sandlin. Well, Mr. Mitchell, I think you made a 
pretty compelling case based on the Demonstration Project and 
based on the statistics that you offered at the beginning of 
your testimony that one quarter of the 106,000 currently 
deployed are Federal employees for the role of the Office of 
Special Counsel here. Especially as it relates to the more 
specialized training to identify, investigate and work through 
the prohibitive personnel practices you've described.
    A couple of questions. What do you think the main reasons 
are that Federal Government agencies continue to violate 
USERRA?
    Mr. MITCHELL. Well, Federal Government agencies are, 
generally, quite large and we've found that larger and the more 
spread out they seem to be all over the country--examples of 
these are the Postal Service, the Veterans Administration and, 
actually DoD in its components--that we see larger numbers of 
cases coming from those agencies. And that's probably a factor 
of outreach, not being able to get to a Postmaster General in 
South Dakota, necessarily, or a Postmaster in South Dakota, who 
may have influence over whether a letter carrier who comes back 
from active duty is going to be able to have his job back. And 
so the--I think the size of the agencies and the distribution 
of those agencies all over the country is a factor in having 
more USERRA claims.
    Ms. Herseth Sandlin. So given the decentralized nature of 
some of those agencies----
    Mr. Mitchell. Yes.
    Ms. Herseth Sandlin [continuing]. Do you feel that the 
centralized nature of OSC is more capable of dealing with that, 
roughly, 10 percent?
    Mr. Mitchell. Well, when the claim comes in, we can deal 
with the----
    Ms. Herseth Sandlin. Federal----
    Mr. Mitchell [continuing]. Federal claim more quickly 
because we're much more familiar with those areas of law.
    Ms. Herseth Sandlin. Right. So if the Office of Special 
Counsel were to get primary referral for all the Federal cases, 
would you need a bigger budget? With what you currently have, 
would that allow you to meet the needs that you anticipate?
    Mr. Mitchell. We had calculated last year that we'd need 
about $2.5 million added to our now $17.4 million budget to 
grow our USERRA unit back and add the capacity to take on 
double the number of cases that we were taking in during the 
Demonstration Project. During the Demonstration Project, if a 
claimant had and even numbered Social Security number final 
digit, the claim went to VETS. And if it was odd numbered, it 
came to us, and if it came to us, then we'd have all of them.
    Ms. Herseth Sandlin. Okay. Mr. McWilliam, you identified a 
53- to 57-day turnaround. How is that calculated? Is that 
calculated based on all cases entered or is that calculated in 
some way of those that actually require some days, weeks, 
months of investigation and completion?
    Mr. McWilliam. Ma'am, it's all cases for which we received 
a claim from a veteran or a servicemember.
    Ms. Herseth Sandlin. Are some of those claims addressed and 
rectified fairly easily so that it's just almost a day turn? I 
mean, you can get an answer and solve it within a day.
    Mr. McWilliam. I would say some of them within several 
weeks, ma'am, yes.
    Ms. Herseth Sandlin. State that again. Some of them 
within----
    Mr. McWILLIAM. I'm sorry.
    Ms. Herseth Sandlin [continuing]. Weeks.
    Mr. McWILLIAM. Some of them don't take as long as others. 
Absolutely. Some just take a few weeks to do. By the time the 
investigator receives the complaint, talks to the veteran, the 
claimant who's making the claim, assemble some of the initial 
paperwork, it's possible that they could be settled fairly 
shortly. I don't have a specific time or minimum amount of time 
that it takes.
    Ms. Herseth Sandlin. Okay. I just want to make sure that 
you mentioned that part of the Demonstration Project led to 
improvements in DOL's and VETS' reporting----
    Mr. McWilliam. Yes, ma'am.
    Ms. Herseth Sandlin [continuing]. And calculation. I would 
be interested and, perhaps, you could provide to the 
Subcommittee, with all claims, I would like to see the date 
entered and the date closed to see how that average is being 
calculated.
    Mr. McWilliam. Age them? Yes, ma'am, we could do that.
    Ms. Herseth Sandlin. Okay. Just for an example, Mr. Boozman 
can go through all his District staff who are here. We do 
casework----
    Mr. McWilliam. Certainly.
    Ms. Herseth Sandlin [continuing]. On behalf of constituents 
and, sometimes, it's something that we can easily handle. We 
can make a quick phone call, put them in touch. We enter it. We 
open a case.
    Mr. McWilliam. Yes, ma'am.
    Ms. Herseth Sandlin. We close it in our IQ system or 
whatever. So that certainly affects, the average time----
    Mr. McWilliam. Yes, it would.
    Ms. Herseth Sandlin [continuing]. That it takes.
    Mr. McWilliam. Madam Chairman, I was just talking about 
ones where we actually receive a formal, written complaint from 
a servicemember. I was not including any technical assistance 
that we do, which often is like you say a telephone call and we 
just talk to the people and clarify issues. But we can 
certainly----
    Ms. Herseth Sandlin. Okay.
    Mr. McWilliam [continuing]. Clarify that----
    Ms. Herseth Sandlin. Yeah. If you could----
    Mr. McWilliam [continuing]. Certainly.
    Ms. Herseth Sandlin [continuing]. Provide us both the 
actual written complaints that are----
    Mr. McWilliam. Yes.
    Ms. Herseth Sandlin [continuing]. Filed, as well as, maybe 
some additional information on----
    Mr. McWilliam. Certainly.
    Ms. Herseth Sandlin [continuing]. The technical assistance.
    Mr. McWilliam. Yes, ma'am. Certainly.
    [The information was provided in the post-hearing questions 
and responses for the record, which appears on p. 69.]
    Ms. Herseth Sandlin. Okay. You also stated in your 
testimony that VETS is conducting an evaluation of USERRA 
investigative process.
    Mr. McWilliam. Yes, ma'am.
    Ms. Herseth Sandlin. What will the evaluation entail and 
when will it be completed?
    Mr. McWilliam. We've decided, ma'am, we wanted to do a 
business process redesign of the entire system, Six Sigma, 
along those lines. We have a contract out. We are waiting right 
now to--I believe it's being evaluated to make an award to a 
consulting firm to ask them to look at the whole process. 
It's----
    Ms. Herseth Sandlin. And any timetable then so----
    Mr. McWilliam. I believe it's a one-year timeframe, ma'am.
    Ms. Herseth Sandlin [continuing]. A consulting firm who 
can----
    Mr. McWilliam. Yes, ma'am----
    Ms. Herseth Sandlin [continuing]. Meet with you.
    Mr. McWilliam [continuing]. For this review. It takes about 
that long to do a really solid business process redesign. And I 
intend to work through all our major processes. We decided to 
start with USERRA, and then we're going to go to competitive 
grants and non-competitive grants. As your Committee is aware, 
we've, in essence, done this for the TAP employment workshops 
right now. So we're just in the process of working through each 
one of our major programs.
    Ms. Herseth Sandlin. Okay. One final question for both of 
you. In your experience in your respective offices, you've seen 
your share of GAO reports. How would you describe the GAO 
report and evaluation that was finally submitted to the 
Committee last summer? Was it one of the more thorough ones 
you've seen? Did it include as many helpful recommendations 
that you've seen in the GAO report on other operations within 
each of your offices?
    Mr. McWilliam. Madam Chairwoman, I think the GAO reports, 
although we may not always agree with their recommendations, we 
think their conclusions are usually very well done and very 
well thought out. They identified several areas, particularly 
in data management that have been very helpful to us. They made 
some recommendations that the Committee has asked us to do to 
look at making sure that our annual report includes information 
from other organizations. And so I thought it helped us out 
quite a bit in improving the process.
    Ms. Herseth Sandlin. Thank you.
    Mr. Mitchell.
    Mr. Mitchell. May I provide a contrasting view?
    The GAO, in our--in fact, we filed with them quite an 
extensive letter of comments. It seemed to focus more on 
computer data elements than it did on the quality. In fact, 
they admitted that they did not evaluate the quality of the 
work that was being done by both agencies. They got hung up on 
how the computer systems handled the data, and--where we would 
have preferred something that we offered to Senator Kennedy's 
staff before a hearing last November is they came in and we 
gave them a pile of cases.
    And they went through the cases over several days. And we 
would have preferred the GAO, actually, get into the cases, 
evaluate the work that was done and contact the claimants to 
see if they were satisfied and evaluate the quality. That 
wasn't done and it was--just seemed to be this hang-up on the 
computer data elements. And we were very disappointed in the 
outcome of the--well--and there were really no recommendations 
that affected us in that--in that GAO report. It didn't come to 
any conclusion.
    Ms. Herseth Sandlin. Mr. Boozman, do you have any follow-up 
questions?
    Mr. Boozman. Well, yes ma'am, a couple of them.
    How long is a vet willing to wait? You mentioned the 
timeframe and stuff and, I mean, how much of this is settled 
just by the fact that the claimant just gets tired of fooling 
with it and then moves on and finds themselves another job?
    Mr. Mitchell. They'll let you think about that one while 
we're thinking about it. It varies. I mean----
    Mr. Boozman. Is that a factor in some of these.
    Mr. Mitchell. It is a factor. In some of the cases, they 
aren't--the veteran doesn't bring a compelling case. There were 
missteps at the beginning in notifying the employer. There are 
problems like that, but we've found that, generally, the 
claimants that come to us stay with us through the process 
until we've resolved the claim.
    Mr. Boozman. The--go ahead, if you'd like.
    Mr. McWilliam. I don't have much to add to that, Mr. 
Boozman. A veteran, at any time, can withdraw and go to private 
counsel. They can request that we forward it and refer it. I 
don't have any numbers on that.
    Mr. Boozman. One of the other witnesses mentioned, private 
counsel and the fact that there is no reimbursement for that. 
Is that something that we need to look at in the sense that 
somebody's in the right and, yet, they have to go out and, in 
some cases, hire private counsel. Should we make amends for 
that in any way or----
    The other question I have is, would they be less likely to 
do that with which group, as far as feeling like they need to 
hire private counsel?
    Mr. Mitchell. Well, of course, if they stay with us and we 
see them through, we're their attorney and can see them through 
the process.
    Mr. Boozman. So----
    Mr. Mitchell. And we don't charge attorney fees.
    Mr. Boozman. That's what I thought. Would that be an 
argument for shifting.
    Mr. Mitchell. Yes, sir.
    Mr. Boozman. You provide the counsel----
    Mr. Mitchell. Right. We can----
    Mr. Boozman [continuing]. And it's free.
    Mr. Mitchell [continuing]. Take care of the prosecution and 
it's when they go outside and certainly those who wind up going 
outside, there's quite a large number who, of, I think USERRA 
claimants who go to law firms to settle claims and I think it 
would be with considering arranging for attorneys fees to be 
covered for them.
    Mr. Boozman. Very good. Would you agree with that Mr. 
McWilliam----
    Mr. McWilliam. Mr. Boozman----
    Mr. Boozman [continuing]. On the----
    Mr. McWilliam [continuing]. I'm sorry. I don't have an 
administrative position on that.
    Mr. Boozman. Okay. Very good. Well, thank you, Madam Chair, 
and I thank the witnesses very much. You guys did a great job. 
And, like I said, it really is refreshing that, you know, 
you're both, you know, fighting for veterans and making a case 
as to which would do the better job. We really do appreciate 
you guys.
    Mr. McWilliam. Mr. Boozman, I'm sorry. I didn't give a very 
complete answer on that. If you take the case to court and they 
find in favor of you, attorney fees are recoverable by the 
court----
    Mr. Boozman. Okay.
    Mr. McWilliam [continuing]. Under USERRA.
    Mr. Mitchell. By the court, yeah.
    Mr. Boozman. I want to thank you for being here and thank 
your staff, Juan, heading that up and you guys that do all the 
work over there; Mike, for doing such a good job and then Steve 
Gray back there, who's coordinated everything here and does 
such a good job for veterans in Arkansas. We really appreciate 
him. And we just appreciate our Chairlady for the hard work and 
her commitment to veterans. You know, being on the Veterans' 
Affairs Committee is something that we all ask to do. That's 
not a--that's a Committee that is a labor of love and we just--
we really do appreciate your leadership.
    Ms. Herseth Sandlin. Well, thank you, Mr. Boozman. We 
appreciate your leadership and hospitality here in Arkansas. 
Once again, I would like to thank your staff who is here with 
us from your District offices here in the Third District and 
your constituents who took time to be here from various regions 
of the State. I know some of them had to drive a distance to 
join us today to share their insights and expertise and our 
folks who have traveled to join us from Washington, DC. Our 
staffs do an excellent job of counsel here at the table; our 
other Committee staff who help do all the logistics and set 
these up. We thank them for the good work that they do to 
support our efforts in our desire to best serve our Nation's 
veterans.
    Again, I want to thank all of our panelists for being here 
today. Your insights, your perspectives are invaluable to the 
work that we do and we appreciate the thoughts that you had on 
both USERRA and the Servicemembers Civil Relief Act. We take 
away from today some ideas that will get us working on possibly 
new legislation to introduce when we return to session this 
fall to continue our efforts in the 110th Congress and lay the 
groundwork for the 111th Congress as well. Thank you all very 
much. This hearing now stands adjourned.
    [Whereupon, the Subcommittee adjourned.]



                            A P P E N D I X

                              ----------                              

    Prepared Statement of Hon. Stephanie Herseth Sandlin, Chairwoman
    I would like to thank Ranking Member John Boozman for inviting us 
here today as we conduct this official hearing in his home state. Under 
the leadership of then Chairman Boozman, we conducted a field hearing 
in Rogers, Arkansas, which provided the Subcommittee the opportunity to 
receive testimony from constituents affected by the Transition 
Assistance Program. As we continue to work together to help our 
nation's veterans, I would also like to thank Ranking Member Boozman 
for his continued strong bipartisan support of our nation's veterans.
    I look forward to hearing from our guest panelists whose testimony 
will focus on employment and reemployment rights for service members 
and veterans. As many of you know, the Uniformed Services Employment 
and Reemployment Rights Act (USERRA) and Service Civil Relief Act 
(SCRA) were both enacted into law to provide our activated service 
members with protections while serving one's country.
    In the past, we have heard stories and anecdotal evidence from 
returning servicemembers and veterans as they have 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 that do not understand USERRA and SCRA rights. Regardless, 
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 interest at 
six percent during deployments, require institutes of higher learning 
to refund tuition and fees for unearned credit, and in addition, 
guarantee our servicemembers a place when they return to school,
      Provide a servicemember 13 months to begin paying their 
student loans after an activation should they decide not to return to 
school immediately,
      Amend SCRA to cover service contracts to allow our men 
and women in uniform with deployment orders to more easily terminate or 
suspend their service contracts without fee or penalty, and
      Amend SCRA to allow a military spouse to claim the same 
state as the servicemember in regards to state and property taxes, and 
voter registration.

    Furthermore, the Committee Chairman 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 many of our servicemembers returning from 
deployments find themselves in a predicament where existing laws might 
not be sufficient to protect them, laws are not being 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 look forward to working with Ranking Member Boozman and the other 
Members of the Subcommittee as we continue to work diligently to 
provide the necessary safeguards to protect our servicemembers and 
veterans to return to civilian life.

                                 
   Prepared Statement of Hon. John Boozman, Ranking Republican Member
    Good morning. Let me 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 
partisan bickering and how Congress isn't capable of anything. I am 
very fortunate that when I was chair of the Subcommittee, Ms. Herseth 
Sandlin was my Ranking Member. I would like to have kept the job, but I 
cannot ask for a better Chair who works in a bipartisan manner and 
looks to do both good things for veterans and is mindful of how we 
spend our tax dollars.
    Members of the National Guard and Reserves continue to bear a 
significant load in the War on Terror. In Arkansas alone, the over 
11,200 members of the National Guard have been mobilized since 9/11/01 
and there are over 3,000 currently deployed overseas. They have 
conducted the full spectrum of operations in the War on Terror. For 
example, the 213th Area Support Medical Company treated over 20,000 
patients in Iraq and the 875th Engineer Battalion cleared 1244 
explosive devices. Our aviation units performed every kind of mission 
from medivac to air control. Our military police and related units 
provided security and civil support. They are warriors all and I thank 
them for their service.
    Fortunately, we have laws like the Uniformed Services Employment 
and Reemployment Rights Act or USERRA, meant to ensure that when 
someone returns from military service, they find their job waiting for 
them. We also have a law called the Service Members 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 these laws--
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 contributions of the spouses who keep the home running 
while the service member is called away. In the face 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 DoD should 
develop a Spouses Service Medal in recognition of their contributions 
to the Nation's defense.
    Once again, I thank the chair for her consideration and I look 
forward to hearing from our witnesses.

                                 
                   Prepared Statement of Paige Smith
    Chairwoman Herseth Sandlin, distinguished members of the Committee, 
I am Mrs. Paige Smith, and I am testifying in my position as the Family 
Readiness Coordinator for Headquarters 142d Fires Brigade and the wife 
of a recently deployed and returned soldier (SFC 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, I would like to address the Servicemembers Civil Relief Act 
(SCRA) and the six percent cap on interest rates on pre-mobilization 
debt for mobilizing Guard members. When my husband's unit deployed, I 
know first hand that all our soldiers were entitled to have all pre-
mobilization debt reduced to a maximum of 6% interest rate. It has been 
my experience as the Family Readiness Coordinator that the majority of 
soldiers involved in this mobilization received the debt relief due to 
their creditors supporting the war effort and creditors reducing the 
interest rates. I know of no instances that a creditor did not reduce 
our soldier's pre-mobe debt interest rates and for that we are all 
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 their 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 the position of 
choosing between their families and their country. This was one of the 
most pressing issues of SCRA and should be resolved.
    Second, I would like to address The Family and Medical Leave Act 
(FMLA) which was amended on January 28, 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 affect. Washington state and California have each 
passed a Spouse Leave Law in which employers must provide a certain 
amount (Washington: 15days; California: 10 days) 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 military spouses that do not fall under FMLA to have the same 
rights as those that do. I would ask your assistance in implementing 
Federal legislation to address this issue that effects the majority of 
our soldiers during pre-mobilization and post mobilization.
    I would like to conclude my testimony by thanking you for the hard 
work of the Congressional staff in all areas concerning Soldier and 
Family care issues. I appreciate this opportunity to testify before 
this Subcommittee and represent all military spouses and families of 
the 142d Fires Brigade of the Arkansas Army National Guard.

                                 
  Prepared Statement of Lieutenant Colonel Michael D. Merritt, Deputy 
                           Brigade Commander
                           EXECUTIVE SUMMARY
    I am Lieutenant Colonel Michael D. Merritt, Deputy Brigade 
Commander, 142nd Fires Brigade, Arkansas Army National Guard. I 
appreciate the opportunity to appear before you and submit testimony 
relative to my experiences as they relate to USERRA.
    I received my commission in 1984 and spent four (4) years on active 
duty before beginning a civilian career as a Human Resource Manager and 
joining the Army National Guard. I have seen the impact of military 
service in the Reserve Component (RC) from the employer's perspective 
as well as the Servicemember's. As a National Guard officer recently 
returned from deployment overseas as a battalion commander, I have a 
heightened awareness of the impact military service has on the 
employer/employee relationship.
    My personal experiences and most of those of my Soldiers have ended 
positively. The greatest contributing factor to those outcomes has been 
the desire of employers to take care of their reserve component 
employees, not from a sense of obligation to comply with USERRA 
requirements. Most concerns have come from the perceived missed 
opportunities, or concern their commitment to serve will hurt their 
chances to advance in the future.
    Doing the right thing has been the objective of all my past 
employers and USERRA only came into play as a reference. As a Human 
Resource professional I know many civilian managers to include Human 
Resource personnel are not as familiar with USERRA as they should be. 
You might credit that to the lack of challenges made by returning 
service members under USERRA. I believe a better understanding of 
USERRA, periodic review of company policy for compliance and a 
communication plan could help prevent misunderstandings and alleviate a 
lot of worries from employers and employees alike.
                               __________
    Chairwoman Herseth Sandlin, distinguished members of the Committee, 
I am Lieutenant Colonel Michael D. Merritt, Deputy Brigade Commander, 
142nd Fires Brigade, Arkansas Army National Guard. I appreciate the 
opportunity to appear before you and submit testimony relative to my 
experience as a member of the National Guard and as an employee of a 
Fortune 500 corporation. Specifically, issues related to my legal 
rights under USERRA. My testimony today reflects my personal views and 
does not necessarily reflect the views of the Army, the Department of 
Defense, or the Administration.
    Let me begin by giving you a brief background of my military and 
civilian career paths. I received my commission as a Regular Army 
officer in 1984 and spent the next four (4) years on active duty before 
beginning a civilian career and joining the Army National Guard. Over 
the course of 19 years I have been exposed to the impacts of military 
service in the Reserve component from both the employer's perspective 
as well as the Servicemembers'. For seventeen of those nineteen years I 
have been in the Human Resource profession, with fifteen of those years 
as a Human Resource Manager. I have held positions in locations that 
had as few as one hundred employees to as many as eleven hundred. 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 OIF as an artillery battalion commander, I have seen the 
impact of military service on the employer to employee relationship.
    My personal experiences have 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 service member employees, than out of 
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 their 
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 term of service (ETS) 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 or 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 Human 
Resource 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 my deployment and I 
had no desire to put my family through that at such a difficult time. 
The positive turn came when I reminded my employer about USERRA 
requirements and they quickly recognized both the legal situation and 
my personal desire not to move and promised my original position back.
    After returning to the United States, I made the decision to resign 
my position 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 my 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 service members 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 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 worries.
    I would like to express my appreciation for being given this 
opportunity to submit testimony to the Committee.

                                 
         Prepared Statement of Major General William D. Wofford
                           EXECUTIVE SUMMARY
    This testimony addresses five issues related to the Uniformed 
Services Employment and Reemployment Rights Act, as well as the 
Servicemembers Civil Relief Act.

      The NDAA of 2008. The NDAA of 2008 contains a clause that 
confirms that court ordered stay provisions under SCRA do apply to 
child custody proceedings. In the past several state courts had 
incorrectly held that SCRA did not apply to domestic relations. The 
NDAA of 2008 clarified this important issue.
      Six Percent Interest Rate for Pre-Mobilization Debt. Some 
Servicemembers in Arkansas do not receive debt relief because their 
income is not materially affected during a mobilization. However, it is 
important to point out that most creditors comply with the law even 
when they are under no obligation viewing this as their part of the war 
effort.
      Continued Enforcement of SCRA/USERRA under the Department 
of Justice's Civil Rights Division. Servicemembers seeking help under 
SCRA first contact the military assistance judge advocate's office. If 
the JAG cannot resolve the matter and determines that assistance from 
the Department of Justice would be appropriate, the JAG will submit a 
request to the Civil Rights Division or U.S. Attorney's Office.
      Awarding of Attorney's Fees. Currently if a Servicemember 
has an issue and is required to pursue legal action to enforce rights 
under SCRA there is no provision for recovery of the cost of an 
attorney. If SCRA was amended to allow the recovery of attorney's fees, 
it could increase the number of attorneys willing to represent our 
Servicemembers in SCRA court actions.
      Employment Concerns. There is mounting evidence that 
employers are becoming more reluctant to hire members of the Reserve 
components because of repeat, second and third, deployments. There have 
been recommendations to provide incentives for employers to hire 
Guardsman. These include: tax incentives, health benefits, eliminating 
Social Security and retirement penalties for retirees who temporarily 
backfill deployed Servicemembers, reimburse replacement training 
expenses, and reimbursing municipalities for overtime for policeman and 
fire fighters that are required to fill in for deployed Servicemembers.

    Once again I would like to thank the Committee for all of their 
efforts in these matters.
                               __________
    Chairwoman Herseth Sandlin and distinguished members of the 
Committee, I am Major General William D. Wofford, and I am testifying 
in my position as the Adjutant General for the State of Arkansas. 
Please understand that my testimony today reflects my views as the 
Adjutant General of Arkansas and does not necessarily reflect the views 
of the Army, the Department of Defense, or the Administration. Thank 
you for the opportunity to personally appear before you and submit this 
written testimony relative to issues pertaining to the support of our 
national Guardsmen. Your invitation encouraged me to address the 
following issues:

    1.  The successful passing of the provision related to child 
custody in the National Defense Authorization Act of 2008
    2.  The six percent cap on interest rates on pre-mobilization debt 
for mobilized Servicemembers
    3.  The Department of Justice Civil Rights Division for enforcement 
of Servicemembers Civil Relief Act (SCRA) and USERRA issues
    4.  Possibly including a provision to award attorney's fees under 
SCRA
    5.  Employment concerns of the Reserve forces
THE NATIONAL DEFENSE AUTHORIZATION ACT OF 2008
    I would like to begin my testimony by thanking the Congressional 
staff for their hard work on the inclusion of a very important clause 
in the NDAA of 2008: the affirmative clause that court-ordered stay 
provisions under SCRA do apply to child custody proceedings.
    During previous military mobilizations, military legal assistance 
officers advised Servicemembers that they would not lose custody of 
their children due to an impending deployment because of the Soldiers 
and Sailors Relief Act.
    When the Arkansas National Guard began mobilizing in 2003 for 
operation Iraqi Freedom, Arkansas JAG office attorneys also advised our 
Guardsmen that they would not lose custody of their children while they 
were deployed because the Soldier's and Sailor's Relief Act would allow 
for a stay of proceedings while they were fighting our country's wars.
    Unfortunately, several state courts, including Arkansas' case 
Lenser v. McGowan, have incorrectly held that the newly created 
Servicemembers Civil Relief Act did not apply to domestic relations. 
This left Servicemembers who were custodial parents in a position of 
choosing between fighting for their country--or ignoring military 
orders to fight for custodial rights. This is the dilemma that most 
military attorneys agree the Servicemembers Civil Relief Act intended 
to prevent.
    In Lenser v. McGowan, SPC Michael Lenser and his wife were having a 
custody dispute over their child. SPC Lenser asked the Court for a Stay 
since he had already mobilized from National Guard status to active 
duty status for an eighteen month mobilization that included a year 
long deployment to Iraq. The trial court denied his initial stay 
request and entered an order awarding custody to the child's mother.
    Then the Court further stayed the matter until he returned from the 
deployment. SPC Lenser appealed this ruling and the Arkansas State 
Supreme Court agreed with the lower court's ruling. The Supreme Court 
ruled that a lower court has jurisdiction to consider matters such as 
support, custody, and other similar matters that arise during the 
course of the stay. This ruling in large part nullifies the intent of 
the Servicemembers' Civil Relief Act.
    This contributed to SPC Lenser's dilemma of serving his country or 
keeping custody of his child. Lenser had no court enforceable rights to 
his child during his deployment. In order to talk to the child or visit 
the child during his fifteen days of leave from theater, Lenser was 
required to have the consent of his wife. Neither were the child's 
paternal grandparents to be allowed to visit the child during his 
deployment unless the wife consented.
    Once SPC Lenser returned from Iraq, he divorced his wife and now 
has custody of the child, but the personal and emotional conflict 
suffered by SPC Lenser and his parents was exactly what the SCRA 
intended to avoid.
    Congress answered this issue in the NDAA of 2008. Section 522 of 
SCRA now specifically states that the act applies to child custody 
cases. I thank the Congress for their hard work ensuring that 
Servicemembers are no longer in the position of choosing between their 
families and their country. This was one of the most pressing issues of 
SCRA and it appears to be resolved.
SIX PERCENT INTEREST RATE COMBINED ASSESSMENT PROGRAM ON PRE-
        MOBILIZATION DEBT
    When a Servicemember mobilizes, they are entitled to have all pre 
mobilization debt reduced to a maximum 6% interest rate if their income 
is materially affected.
    While the majority of creditors do allow Arkansas Guardsmen to 
reduce their interest rate, oftentimes our Servicemembers don't receive 
the debt relief under the law because the Servicemember's income is not 
materially affected under the law in order to trigger the debt relief 
provisions.
    While the majority of our Arkansas Servicemembers do enjoy the same 
debt relief, it's due to creditors voluntarily reducing the interest 
rate because of their support of Servicemembers. However, if the letter 
of the law was upheld, many Servicemembers would not receive this 
benefit.
    There is a ``gray area'' that allows for a creditor to compel a 
Servicemember to prove that their income is materially affected before 
they will reduce the interest rate to six percent. Under SCRA, it's 
clear that it is the creditor's responsibility to prove that the 
Servicemember's income has been materially affected. Currently, as 
things stand, it is often the Servicemember who has to take the time to 
prove their income has been affected. This is clearly an unfair burden 
on the Servicemember or family; they have to spend their last days 
together before deployment gathering and providing information to prove 
their amount of income. This is an encumbrance when the Servicemember 
is preparing for war.
    In other cases, creditors may reduce the interest rate, but not 
reduce the minimum payment. This should also be reduced and is 
problematic for Servicemembers and the families they leave behind. 
Under this, the monthly payment remains the same, although there is 
more of the amount going to pay down the principal of the loan. 
However, this still negates the intent of the act which is to reduce 
debts for a Servicemember while answering their country's call.
    I would like to emphasize that this is an issue with only a 
minority of creditors. Most are happy to comply with the SCRA and see 
reducing the interest rate as their way of supporting our 
Servicemembers. Some creditors have gone so far as to reduce all 
interest rates while a Servicemember is deployed. This not only helps 
the Servicemember while they are deployed, but allows them to further 
reduce their principal once they return. These creditors should be 
commended for going above and beyond.
CONTINUED RESOURCES FOR THE DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION 
        FOR SCRA AND USERRA COMPLIANCE
    We need continued enforcement under the Department of Justice's 
Civil Rights Division on SCRA issues. While the Division continues to 
build the SCRA enforcement program, since receiving enforcement 
authority in 2006, the division has opened several investigations and 
has resolved the first such investigation with a favorable outcome.
    In addition, the Division engages in a sustained outreach effort, 
which includes visiting military bases throughout the country to 
educate and inform JAG attorneys that it is actively investigating SCRA 
matters and stands ready to help them with enforcement.
    The process is that Servicemembers who are seeking help under SCRA 
first contact their military assistance judge advocate in the Arkansas 
National Guard. If the JAG 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 or a U.S. Attorney's 
Office. This office complements private enforcement actions brought by 
private counsel representing a Servicemember. It is important that the 
division continue its work with the Servicemembers and JAG legal 
assistance attorneys to ensure Servicemembers' rights are respected 
under SCRA.
    In Arkansas, we've had a number of SCRA issues come up with the 
last deployment of the 39th Brigade; fortunately, the issues were 
usually resolved between the Servicemember, the opposing party and the 
local National Guard judge advocates.
    Having Department of Justice assistance to ensure SCRA provisions 
are upheld, is invaluable support and we ask for this Committee's 
continued support in SCRA and USERRA issues.
AWARDING OF ATTORNEY'S FEES
    Generally, Servicemembers' creditors, employees, and landlords 
deserve to be commended on the sacrifices that they make to ensure that 
a Servicemember is prepared to leave his civilian position and fight in 
the war effort. However, some of these entities are not aware of the 
protections of SCRA and others choose not to comply.
    Unfortunately, if a Servicemember has to pursue legal action to 
enforce their rights through SCRA, there is no provision for recovery 
of the expense of the attorney he must hire to get relief.
    To help ensure the protections Congress has provided under Federal 
law, we request that you consider amending the SCRA to add a provision 
authorizing courts to award exemplary or punitive damages and 
attorneys' fees to Servicemembers whose rights are violated 
intentionally or willfully under SCRA. This change would be reflective 
of the Civil Rights Act's provisions and fulfill its intentions.
    In most cases, the amount in controversy is insufficient to allow 
an attorney to proceed on a contingency basis. While National Guard 
judge advocates are ready to try to resolve the issue, they are not 
allowed to represent Servicemembers in actual court proceedings. 
Further, most attorneys will not accept SCRA violation cases on a 
commission basis because there simply is little financial reward. If an 
amendment was passed by Congress to allow the recovery of attorney's 
fees, it would increase the number of attorneys willing to represent 
our Servicemembers.
EMPLOYMENT CONCERNS OF THE RESERVE FORCES
    Before I discuss this issue, I would like to emphasize that our 
Servicemembers in the Arkansas National Guard receive outstanding 
support from employers when our members 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 
are mobilized.
    However, I would like to share with you a growing concern. Although 
our employers demonstrate solid support for 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 
repeat, second and third, deployments.
    It has become apparent that those traits exhibited by members of 
the Guard and Reserves 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 are 
going to be deployed for twelve months every 3 or 4 years. The business 
men and women that are responsible to their superiors and stakeholders 
are making hiring decisions that will best help their organization's 
financial bottom line.
    For over a year I have taken the opportunity to speak to numerous 
civic organizations, chambers of commerce, and business leaders around 
the state of Arkansas about the National Guard. I certainly emphasize 
the advantages to their businesses that come with hiring Guard members 
because of their work ethic and character traits.
    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 have received some valuable feedback 
that I would like to share with you. Much of this feedback is 
resounding evidence that the transition of the Reserve Components from 
a strategic reserve to an operational force has taken a drastic toll on 
businesses, and has had a definitive impact in those business 
considerations used when making hiring decisions.
    This has led me to advance a few recommendations that would help 
make it cost effective for business leaders, especially in small 
businesses, to hire a member of the Guard or Reserves.
    One recommendation is a tax incentive for employers; another is to 
provide health benefits for Servicemembers and their families on an 
ongoing basis, so businesses don't have to provide healthcare as part 
of a benefits package. Also eliminating Social Security and retirement 
penalties for those retirees who temporarily backfill deployed or 
mobilized Servicemembers would provide considerable relief. Another is 
reimbursed replacement training expenses for businesses. And finally, 
reimbursing municipalities for overtime for policemen or fire fighters 
that are required to fill in for deployed Servicemembers would go a 
long way to providing a strong support network for our country and a 
continuity in the workforce when our Servicemembers are called to 
serve.
    Chairwoman Herseth Sandlin and distinguished members of this 
Committee, I apologize for veering off somewhat from the USERRA and 
SCRA topics that we were invited here to address today, but I feel it 
is imperative that we examine possible initiatives and help build a 
strong case to make it cost effective for business leaders of our 
Nation to continue hiring members of the Reserve Components.
    Several months ago, I made the comment to Dr. L. Gordon Sumner, 
Jr., National Director of the Employer Support to the Guard and Reserve 
Program, that if we did not make it cost effective for business men and 
women to hire members of the Guard and Reserves, we would not be able 
to maintain a Reserve Component five years from now. He corrected me by 
responding that if we don't do something soon about this issue we will 
not have a Guard and Reserve three years from now.
    I appreciate this opportunity to submit testimony to the Committee 
on Veterans Affairs Subcommittee on Economic Opportunity. On behalf of 
our Servicemembers, I would like to thank you for all the hard work and 
service you provide. The Arkansas National Guard especially thanks you 
for the support that you provide us. I look forward to answering any 
questions that you may have on August 18, 2008.

                                 
               Prepared Statement of Captain Thomas Lee,
             Staff Judge Advocate, Arkansas National Guard
                           EXECUTIVE SUMMARY
    I would like to take the time to explain what services the Judge 
Advocates of the Arkansas National Guard provide and the type of issues 
that we see. In the last five years, we have seen almost 10,000 
Servicemembers come through our legal station on their way to various 
deployments. We have provided some sort of legal service to each and 
every one of them.

      I have enclosed a table regarding legal actions that 
Servicemembers of the 39th Brigade Combat Team have faced since their 
January 2008 mobilization.


----------------------------------------------------------------------------------------------------------------
                            ISSUE                                     INSTANCE                      %
----------------------------------------------------------------------------------------------------------------
6% interest                                                                        24                      29.2
----------------------------------------------------------------------------------------------------------------
Eviction                                                                           12                      14.6
----------------------------------------------------------------------------------------------------------------
Auto Repossession                                                                  16                      19.5
----------------------------------------------------------------------------------------------------------------
Judicial Stay                                                                       8                       9.8
----------------------------------------------------------------------------------------------------------------
Unpaid Debt Issues                                                                  4                       4.9
----------------------------------------------------------------------------------------------------------------
Child Support                                                                       2                       2.4
----------------------------------------------------------------------------------------------------------------
Residential Lease Termination                                                       2                       2.4
----------------------------------------------------------------------------------------------------------------
Other                                                                               7                      17.1
----------------------------------------------------------------------------------------------------------------


      The most common problem during a deployment is a creditor 
not understanding the law of the six percent interest rate cap on pre-
mobilization debt under SCRA.
      The other issue that requires much time of the local 
judge advocates is domestic relations issues.
      I appreciate this opportunity to submit testimony to the 
Committee on Veterans Affairs Subcommittee on Economic Opportunity. The 
Judge Advocates would like to thank you for all the hard work and 
services that you provide all Servicemembers.
                               __________
    Chairwoman Herseth Sandlin and distinguished members of the 
Committee, I am Captain Thomas Lee, and I am testifying regarding my 
position as the Staff Judge Advocate of the Arkansas National Guard. 
Please understand that my testimony today reflects my personal views 
and what I have seen for the last five years as a Judge Advocate and 
does not necessarily reflect the views of the Army, the Department of 
Defense, or the Administration. Thank you for the opportunity to 
personally appear before you and submit this written testimony relative 
to issues with legal support of our National Guardsmen. I would like to 
take the time to explain what services the Judge Advocates of the 
Arkansas National Guard provide and the type of issues that we see. In 
the last five years, we have seen almost 10,000 Servicemembers come 
through our legal station on their way to various deployments. We have 
spoken with each one.
    As a Judge Advocate, I split our legal assistance services into 
three stages corresponding to the current status of the Servicemember. 
We see different issues and provide varying service depending upon the 
stage of the Servicemember. The first stage being the pre-mobilization 
phase when the Servicemember is preparing for deployment and legal 
issues that they think may arise or while they attempt to resolve 
current legal issues. The second stage is the post-mobilization phase 
where the Servicemembers, their families, or legal representatives have 
arising legal issues, but are not in a position to resolve them. The 
third stage is the demobilization phase where the Servicemember has 
returned and must resolve legal issues that arose from the deployment 
or were judicially stayed during the deployment.
Phase I--Pre-mobilization
    Before a Servicemember leaves Arkansas on a mobilization he must go 
through a Soldier Readiness Process (SRP). Often a Servicemember goes 
through the SRP and later will process through a Soldier Readiness 
Certification (SRC) before leaving Arkansas. SRPs and SRCs are 
basically the benchmark of the deployment process. At each SRP and SRC, 
the Servicemember speaks with a Judge Advocate and is asked if he needs 
any legal assistance. We have multiple stations where a Judge Advocate 
will draft the Servicemember a will or a power of attorney. Generally, 
we try to talk the Servicemember out of a general power of attorney and 
instead draft a specific power of attorney for whatever purpose the 
Servicemember needs, or we ask that they wait until they need a power 
of attorney and we can prepare and e-mail one to them at that time.
    Also at the SRP, we ask whether the Servicemembers have any legal 
issues that will prevent them from deploying. Then we provide them with 
a packet of information. The packet includes letters that they can send 
to the creditors asking for their creditors to reduce their interest 
rate to six percent, letters for terminating a residential lease, an 
Internal Revenue Code power of attorney for tax purposes, and a sample 
letter to send to a court to stay a pending court proceeding and a 
guide on how to resolve fines and warrants.
    During this phase, our Judge Advocates will often talk directly to 
prosecuting attorneys and judges concerning our Servicemembers that 
have pending misdemeanor charges or traffic violations in our various 
courts. Usually the prosecuting attorney and judges agree to re-arrange 
their docket so that Servicemembers may attend to these matters before 
they deploy. The prosecutors and judges throughout Arkansas have been a 
tremendous help in the war effort.
Phase II--Post-mobilization
    At this time, there are roughly 4,000 members of the Arkansas 
National Guard on active military orders. Between the two Judge 
Advocates of Arkansas National Guard Joint Forces Headquarters and the 
one Judge Advocate of the rear detachment 39th Brigade Combat Team 
Legal, we receive an average of 223 calls a month seeking legal 
assistance information. The phone calls come from Servicemembers, their 
families, attorneys, and creditors. We provide all groups as much 
information as we can on military legal issues. Generally, the 
questions are related to the Servicemembers Civil Relief Act (SCRA). I 
have enclosed a table regarding legal actions falling under SCRA that 
Servicemembers of the 39th Brigade Combat Team have faced since their 
January 2008 mobilization.


----------------------------------------------------------------------------------------------------------------
                          ISSUE                                    INSTANCES                       %
----------------------------------------------------------------------------------------------------------------
6% interest                                                                      24                        29.2
----------------------------------------------------------------------------------------------------------------
Eviction                                                                         12                        14.6
----------------------------------------------------------------------------------------------------------------
Auto Repossession                                                                16                        19.5
----------------------------------------------------------------------------------------------------------------
Judicial Stay                                                                     8                         9.8
----------------------------------------------------------------------------------------------------------------
Unpaid Debt Issues                                                                4                         4.9
----------------------------------------------------------------------------------------------------------------
Child Support                                                                     2                         2.4
----------------------------------------------------------------------------------------------------------------
Residential Lease Termination                                                     2                         2.4
----------------------------------------------------------------------------------------------------------------
Other                                                                             7                        17.1
----------------------------------------------------------------------------------------------------------------

Table 1--Legal actions involving the 39th BCT since mobilization
    Our Servicemembers often run into financial problems when 
transitioning from their civilian pay status to a military pay status. 
The rights from repossession of vehicles and eviction from homes are a 
key element in SCRA for our Servicemembers and their families. While 
many of the issues arising from the pay transition are not per se legal 
issues, our Judge Advocates are able to assist the Servicemembers in 
resolving the temporary financial hardship with their creditors.
    The most common problem during a deployment is a creditor not 
understanding the law of the six percent interest rate cap on pre-
mobilization debt under SCRA. Generally, this issue can be resolved 
between the Servicemember and the Judge Advocate once the creditor is 
aware of the law and the Judge Advocate determines whether the section 
of SCRA applies to the Servicemember's case. Since the 39th Brigade 
Combat Team has deployed, almost a third of all legal assistance 
actions are regarding six percent interest rate issues.
Phase III--Demobilization
    Once a Servicemember returns from deployment, he will go through 
the legal section at the mobilization center. The Judge Advocate will 
ask Servicemembers if they have any legal assistance issues that need 
to be resolved. Hopefully, the Servicemember will notify the Judge 
Advocate at that time if he is aware there is a legal issue; however, 
the Servicemember often does not find out that they have legal issues 
until they return home. If they do notify the Judge Advocate at the 
mobilization center of pending legal issues, the Judge Advocate will 
try to resolve them or they will notify us about the matter and we will 
help the Servicemember resolve the issue. Having mobilized and deployed 
myself has allowed me to develop a good working relationship with the 
Judge Advocates at the various mobilization centers.
    The most common legal issue when Servicemembers return home is that 
someone has obtained a default judgment against them as the court is 
often not aware that the Servicemember was deployed. SCRA allows the 
Servicemember to file a motion with the court to set aside the default 
judgment. Often, it is the Judge Advocate providing legal guidance to 
the Servicemember on how to get a default judgment set aside.
    The other issue that requires much time of the local Judge 
Advocates is domestic relations. Whether it is a Servicemember who lost 
custody of their children or the Servicemember wants to dissolve his 
marriage, the Judge Advocate will provide assistance. Usually, the 
Judge Advocate works in coordination with the Army Chaplain and family 
assistance personnel, advising the Servicemember of various options. It 
is unfortunate that many families are irreparably harmed by 
deployments, but it is a fact of being a Servicemember not only in the 
National Guard and Reserves but any other service component. For those 
Servicemembers and their spouses who seek a divorce while deployed, 
Judge Advocates advise them of the legal hurdles and refer them to a 
civilian attorney in their community. We do not go to court 
representing either party.
    We are still looking for ways of improving how Servicemembers may 
reach our office. This requires a team effort by the Arkansas National 
Guard as a whole. Our family assistance coordinators pass out our phone 
numbers at military family gatherings. Our public affairs department 
has a website so if Servicemembers need assistance, they can contact 
their office and public affairs will route the issue to the Judge 
Advocate.
    I appreciate this opportunity to submit testimony to the Committee 
on Veterans Affairs Subcommittee on Economic Opportunity. I would like 
to thank you for all the hard work and services that you provide all 
Servicemembers. The Arkansas National Guard especially thanks you for 
the support that you provide us. I look forward to answering any 
questions that you may have on August 18, 2008.

                                 
 Prepared Statement of Don Morrow, Chairman, Arkansas Field Committee, 
               Employer Support of the Guard and Reserve
    Chairwoman Herseth-Sandlin, Mr. Boozman, and members of the 
committee: thank you for the invitation to offer my perspective on 
issues relating to the Uniformed Services Employment and Reemployment 
Rights Act (USERRA), as it applies to Arkansas National Guard and 
Reserve members and their employers.
    The Uniformed Services Employment and Reemployment Rights Act 1994 
protects the employment and reemployment rights of federal and 
nonfederal employees who leave their employment to perform military 
service. The role of informing Service members and employers about this 
law and of enforcing it, fall to several different government 
organizations. It should be noted that USERRA covers all employees 
except screeners employed by the Transportation Security 
Administration.
    Employer Support of the Guard and Reserve (ESGR) is a Department of 
Defense organization that seeks to develop and promote a culture in 
which all American employers support and value the military service of 
their employees. We do this by recognizing outstanding support, 
increasing awareness of the law, and resolving conflicts through 
mediation.
    Gaining and maintaining employer support requires a strong network 
comprised of both military and civilian-employer leaders that is 
capable of providing communication, education, and exchange of 
information. ESGR works with the Reserve component leadership from each 
service, appropriate government organizations such as the Department of 
Labor's Veterans' Employment and Training Service (DOL-VETS), and the 
Small Business Administration, and industry associations such as the 
Chamber of Commerce and others, to create broad-based, nationwide 
support for our troops.
    It is important to note that ESGR is not an enforcement agency, and 
we do not have statutory authority to offer formal legal counsel or to 
participate in any formal investigative or litigation process. Our part 
in the USERRA issue is to inform and educate our customers--Service 
members and their civilian employers--regarding their rights and 
responsibilities under the USERRA statute, and also provide mediation 
services. We have approximately 900 trained volunteer ombudsmen 
throughout the country and a national call center in Arlington, 
Virginia, to provide this service. Our call center received 13,116 
requests for assistance during Fiscal Year (FY) 2007. Of those calls, 
171 were from Service members or their civilian employers in Arkansas. 
Of those requests, 10,742 (129 for Arkansas) were informational in 
nature, that is, they were sufficiently resolved by providing 
information about the law. The remaining 2,374 (42 for Arkansas) were 
assigned as cases to our ombudsmen. Through a Memorandum of 
Understanding (MoU) between ESGR and DOL-VETS, ESGR informs those 
Service members whose cases ESGR is unable to successfully mediate 
within 14 days of their options to either contact the DOL-VETS or to 
retain private counsel. During FY 2007, ESGR referred 416 cases to DOL-
VETS. It should be further noted that the ESGR mediation process is 
covered by the Administrative Dispute Resolution Act 1996, which 
minimizes the amount of specific data that can be released about 
individual cases.
    ESGR's mandate ends at this point in the USERRA resolution process. 
As I understand it, the Department of Labor (DOL) investigates and 
attempts to resolve claims filed by Service members, and, if not 
successful, DOL informs the federal claimants that they may request to 
have their claims referred to the Office of Special Counsel, and 
informs non-federal claimants that they may engage the Department of 
Justice. Of course, all parties reserve the right to engage private 
counsel at any time.
    As of June 30, 2008, 651,918 Reserve component members have been 
mobilized since the terrorist attacks on September 11, 2001. There are 
108,010 Reserve component members mobilized as of July 30, 2008. As of 
June 2008, Arkansas had 16,726 Reserve component members. The use of 
the Reserve component has shifted from a strategic reserve to an 
operational reserve whereby members of the National Guard and Reserve 
no longer are forces held in reserve but are an integrated and integral 
part of our total force.
    The Department is well aware of the stress this operational use has 
on our Service members and their employers. To that end, Secretary 
Gates has provided policy guidance designed to give more predictability 
as to the frequency and duration of Reserve component mobilizations so 
that both Reserve component members and their employers can better plan 
their professional and personal futures.
    As I stated earlier, ESGR operates proactive outreach programs to 
inform, educate, and recognize the employers of our Service members. We 
do this to raise awareness of USERRA and to thank employers for their 
support. As you know, employers suffer twice the cost when their 
employees are mobilized for military duty, in that they lose their 
trained, productive employees and they have to often hire replacements 
for the time those employees are gone. We talk all the time about the 
costs borne by our Service members, and by their families. Those are no 
doubt real costs. However, we do not often talk about the costs borne 
by the employers of Guard and Reserve members. These employers do not 
have a choice when we take away their employees for months. Despite 
these very real costs, employers across the country continue to provide 
incredible support, and it is the least we can do to publicly recognize 
that support.
    All of our records, including the numbers of Reserve component 
members who contact us to recognize their employers, to the day-to-day 
interaction ESGR volunteers across the country have with Service 
members and employers, to the ever decreasing numbers of USERRA cases 
handled by ESGR, indicate that employer support for the Guard and 
Reserve remains strong. Of course, there are instances of USERRA 
violations, but I urge caution to not extrapolate isolated but highly 
visible problems into broad-based policy problems.
    We are working with the individual Uniformed Services to raise 
awareness of USERRA and to provide training about USERRA to all Reserve 
component members. We also continue to work with the appropriate 
federal government agencies such as the DOL-VETS, the Department of 
Veterans Affairs, and the Small Business Administration, to better 
communicate to Service members and their employers about USERRA, 
transition assistance and reintegration programs.
    The Department has also provided ESGR more resources over the past 
five years to better serve our customers and we now have 166 full-time 
staff around the country in addition to the approximately 4,400 
volunteers. The ESGR Arkansas Field Committee has approximately 50 
volunteers assisting Service members and their civilian employers. We 
also have a national customer service center that is operational 12 
hours per day during the workweek to provide service.
    We continue to believe that the existing USERRA process is the 
process that will continue to best serve the interests of Service 
members, whereby the Department of Defense, through the ESGR 
organization, provides mediation, and the DOL continues to have the 
statutory authority to investigate USERRA claims. The ESGR and DOL 
will, of course, continue to collaborate to the fullest extent possible 
to ensure the speediest and most effective resolution of USERRA 
challenges.
    For our part, ESGR will continue its mission to gain and maintain 
employer support by recognizing outstanding support, increasing 
awareness of the law, and resolving conflicts through mediation, and by 
cooperating to the fullest extent allowable with the DOL.
    I hope that I have been able to clarify the role played by the 
Arkansas ESGR in helping employers and Service members as it relates to 
the USERRA statute. Thank you.

                                 
    Prepared Statement of Herb Lawrence, Center Director, Arkansas 
              University Small Business Development Center
                           EXECUTIVE SUMMARY
    Continued deployment of National Guard and Reserve military 
personnel in the Global War on Terror who are also businessowners is 
creating additional hardships on those reserve component service 
members than their non-businessowner/self-employed counterparts. 
Continued deployments of this sub group of Guardsmen and Reservists has 
resulted in numerous business failures, losses of business income, 
bankruptcies and economic losses to their enterprises that have created 
undue hardships on their civilian careers. The playing field between 
reserve component businessowners and non military businessowners is no 
longer even and their service to their country is resulting in 
significant losses in their civilian careers.
    The SCRA especially in terms of its impact on interest rate caps 
for pre deployment loans does not differentiate between consumer 
related loans and business loans although the wording of the act does 
not appear to prohibit its application to business loans. However 
service members who own their own businesses also have pre deployment 
business debt that is not clearly identified in the wording such as 
revolving lines of credit, business term loans, business credit card 
loans, equipment leasing or accounts receivable factoring, all of which 
are critical to sustainment of most business endeavors.
    SCRA clarification for commercial lenders as to their obligation to 
business related loans needs to be more clearly defined, service 
members who are businessowners need to be identified by command prior 
to deployment and access to consulting/counseling business assistance 
needs to be provided that targets their debt obligations and options 
available to the service member to reduce the negative impact of 
servicing those loans upon their return from active duty. SCRA time 
limits on removal of the 6% cap need to be expanded for business owner 
service members upon return from active duty to ensure best possible 
opportunity to get their businesses back to pre deployment levels of 
revenues and customer bases to ensure they can service the debt.
    Commercial lenders need further education on the SCRA and its 
impact specifically to small business owner service members and be 
provided with tools to help them provide the best possible alternatives 
to assist those customers retain a viable business upon return from 
deployment. Some confusion exists among commercial lenders as to the 
scope and applicability of SCRA to businessowners who are called to 
active duty.
    Current assistance to service related businessowners called to 
active duty is inadequate to help keep them operational or to help them 
rebuild upon deployment. U.S. Small Business Administration programs 
aimed specifically at veterans and reserve component businessowners has 
improved but is still not sufficient to meet their needs. Patriot 
Express guaranty loan programs are not available to many commercial 
lenders and need to be expanded to allow smaller community banks to 
access the program. Additionally the SBA direct loan program for 
military service members EIDL (Economic Injury Disaster Loan) direct 
loan program is only a stop gap at the present time and is limited to 
working capital. The EIDL should be expanded to help refinance existing 
business related debt, provide deferments on repayment until a 
reasonable time after redeployment and be expanded to include needs 
other than working capital.
                               __________
   Servicemembers Civil Relief Act (SCRA) and its Impact on Reserve 
                       Component Business Owners
    In 1777 the commanding general of the British forces in North 
America summarily dismissed concerns expressed by his staff about the 
quality of the colonists' military force as ``an army of peddlers and 
shop keepers''. Those militia ``small businessowners'' went on to 
defeat that super power, win our nation its freedom, and have continued 
to serve as our National Guard and Reserves in every major conflict 
since then.
    The continued deployment of our nation's reserve component since 
2003 is unprecedented in modern times. Not since World War II has the 
nation's National Guard and Reserves been called upon to mobilize and 
deploy to supplement the country's armed forces in combat operations 
overseas to this level. As the subcommittee is well aware these 
continued deployments on our nation's National Guard and Reserves have 
created great hardships on these citizen soldiers, their families and 
their civilian careers.
    Nowhere is this more evident than in the challenges that our 
reserve components ``peddlers and shop keepers'' face. The impact of 
continued deployment on those military personnel who are businessowners 
or self employed is a critical issue that deserves congressional 
assistance. The U.S. Small Business Administration estimates that at 
least 7- of all reserve component service members are self employed or 
sole proprietors. When the number of service members who are involved 
in other business entities is included (those in partnerships or with 
substantial ownership in privately held corporations such as Sub 
Chapter S, C Corporations or Limited Liability Companies) these 
percentages of impacted members increase significantly. Estimates range 
from 10% to 14% for the number of service members involved in some form 
of businessownership. While these are a relatively small proportion of 
all Reserve Component service members, these individuals tend to hold 
critical ``mid-level'' positions in their units. While retention of all 
military members is of great importance to sustaining our armed forces, 
the potential loss of many of these key leaders would be detrimental to 
the deploying units.
    Small businessowners who are members of our National Guard and 
Reserves face additional challenges as they prepare for continued 
deployments overseas for extended periods of time. In addition to the 
personal and family issues that must be overcome these service members 
also must make hard decisions about their business operations. Unlike 
their fellow soldiers who are guaranteed their jobs by their employers, 
no such guaranty exists for these small businessowners. When the yellow 
ribbons are taken down and the parades are over this sub set of service 
members must deal with the often negative consequences that their 
absence has had on their livelihood.
    Because of the nature of their businesses, the deploying service 
member is generally the key management person of that business and his 
or her extended deployment causes severe problems as they attempt to 
rebuild their businesses. Many have been forced to close their 
businesses during deployment or to have family members attempt to 
sustain it while they are on active duty and the majority find that the 
loss of revenues and loss of their customer base upon their return 
makes return to pre-deployment levels of operations a significant 
challenge. For many of these citizen soldiers the result of their 
decision to serve their country results in a level of sacrifice and 
loss far greater than that of their non-businessowner fellow service 
members.
    While the Servicemember Civil Relief Act has proven itself to be a 
significant piece of legislation aiding many deploying service members, 
especially in terms of pre-deployment debt obligations, its protection 
to these small businessowners seems to be of limited value and is not 
uniformly understood by all commercial lenders. While the Act does not 
have specific language differentiating consumer loans from business 
loans, it does create confusion among some commercial lenders as to 
whether it even applies to business loans.
    The majority of all small businesses have to operate on some form 
of debt financing. Whether this is in the form of term loans, revolving 
lines of credit, accounts receivable factoring, equipment leases or 
business credit cards, commercial loans are a fact of life for most 
businesses to succeed. Unlike consumer loans (home mortgages, auto 
loans, credit cards, etc.) that are paid for by the borrower from wages 
and salaries received by their employers, commercial business loans 
must be repaid from the revenues generated by these small businesses. 
12-15 month deployments of businessowners results in losses of revenues 
which in turn impacts their ability to meet their financial obligations 
to their lenders.
    While the 6% cap of interest rates required by the SCRA are 
invaluable to many service members as they face decreased household 
income due to their military deployment, even this reduction is often 
not enough to allow that returning businessowner to deal with the 
challenge. When a businessowner losses a significant part of ongoing 
revenues due to his or her deployment even a 6% cap is not sufficient 
to keep that business afloat.
    At a minimum all service members called to active duty who are 
businessowners should be identified and they should be made aware of 
how SCRA can assist them with business debt. These service members must 
have access to individual counseling assistance at no charge who are 
able to review their business financial position, their current 
business debt schedules and work out plans to assist them in meeting 
with lenders to implement SCRA requirements as they currently exist.
    More emphasis must be placed on educating commercial lenders 
especially those involved in business related loans of their 
obligations under SCRA to help these deploying businessowners with 
their debt issues. Discussions with loan officers from a number of 
financial institutions around north central and Northeast Arkansas 
indicates that they are not fully aware of their responsibilities under 
SCRA to deploying businessowners.
    However, the benefits available under SCRA as it is currently 
written are not sufficient to help those returning service member 
businessowners deal with the challenges of rebuilding their businesses. 
SCRA allows the lender to return loans to pre-deployment interest rate 
levels upon release from active duty. While this is not as significant 
an issue to returning service members who are returning to their old 
civilian employers and thus to their pre-deployment income levels, for 
most small businessowners rebuilding revenues and customers to the pre-
deployment levels is not an overnight proposition. It often took years 
for that businessperson to build his or her revenues to its pre-
deployment level and will take significant time for them to return to 
those levels after deployment ends. At a minimum continuation of the 6% 
interest rate cap for business loans should be allowed to continue for 
a reasonable amount of time after the businessowner returns to civilian 
life to help rebuild their business.
    Another issue that is not adequately addressed with SCRA is in the 
scope of the enterprises that would be covered under the 6% cap. While 
as written it impacts both the deploying service member and his/her 
dependents it does not address those businessowners who are involved in 
partnerships where they are partial owners in the business but their 
departure has a significant negative impact on the partnerships earning 
ability and thus ability to service business debt. As example a 3 
person medical clinic where one of the three partners is a reserve 
component service member and is called to active duty, while the other 
two members may not be service members, that departing individual is a 
significant contributor in civilian life to the overall revenue stream 
of the business and thus to the ability of the partnership to meet 
their contractual debts. Assuming that all three partners co-signed for 
business debt, even though that deploying member is only a one-third 
owner, the business should have access to the same interest rate cap as 
if that individual was a sole owner.
    Finally, although outside the scope of the SCRA as it is currently 
written the Subcommittee should give consideration to changes or 
additions to the Act that will further help reduce the negative impact 
of businessownership on these service members. For many small 
businessowners even a reduction of interest rates to 6% on their 
business loans is not sufficient to help their business survive the 
deployment and regain lost revenues or customers. It is strongly 
suggested that Congress review possible legislation that would 
facilitate ``banking holidays'' for those deploying service members 
whose businesses will not be able to be sustained during their 
deployment even at the 6% cap. Obviously commercial lenders are not in 
a position on their own to provide these total payment deferments for 
the period of the deployment without some type of governmental 
involvement such as providing some form of guaranty on these loans 
similar to U.S. Small Business Administration guarantees or other 
governmental guaranty programs. Another option is the possible 
expansion of the current SBA disaster direct loan program Economic 
Injury Disaster Loans (EIDL) for deploying small businessowners that 
would allow the government to ``buy out'' the loans from the lenders 
and set up terms that would benefit the service member.
    The U.S. Small Business Administration has made significant 
improvements on their loan assistance programs aimed at veterans and 
reserve component service members through their Patriot Express 
programs and the EIDL direct loans; however these initial moves need to 
be significantly enhanced to ensure our businessowner service members 
are able to operate on a par with non military businesses. The Patriot 
Express loan is limited to those commercial lenders who are already 
members of the SBA Express loan program and in Arkansas only a very 
limited number of larger banks are able to use this program. Small 
community banks do not have access to this program and thus are not 
able to provide the assistance with the SBA guaranty to their service 
member customers.
    Additionally the Economic Injury Disaster Loan program through the 
SBA while beneficial to those service members who qualify is limited to 
working capital needs and does not include the ability to refinance 
existing commercial loans nor to provide loans for equipment, 
inventory, or other normal business loan needs.
    Reserve component businessowners find themselves at a significant 
disadvantage economically and through access to capital that 
significantly cripples their ability to keep their business operational 
while deployed or to recover upon return when compared to their non-
service member competitors. Banking requirements also make it difficult 
for individual banks to make deferments or other assistance to their 
reserve component business customers without some form of governmental 
assistance.
    In conclusion, small businessownership is and remains the bedrock 
of our economy and studies from the Small Business Administration show 
that veteran owned businesses are significantly more likely to be 
formed and to succeed than their non-veteran counterparts. However, 
continued deployment of this significant subgroup of our reserve 
component in the Global War on Terror has created a tremendous barrier 
to their normal civilian operations far in excess of that faced by non-
business owner service members or their non-business owner fellow 
service members. I urge the Subcommittee on Economic Opportunity of the 
House Committee on Veterans' Affairs to give consideration to the 
current level of assistance available to reserve component 
businessowners under the SCRA, to look at expansion of assistance under 
SCRA that addresses unique lending needs of these service members and 
to consider alternative forms of direct governmental assistance to 
allow these citizen soldiers to remain on a level playing field as they 
strive to keep their business enterprises viable.

                                 
   Prepared Statement of William Vines, Commander, Post 31, American 
                     Legion, Department of Arkansas
                           EXECUTIVE SUMMARY
    Sustained and multiple deployments have taken a significant toll on 
servicemembers and their families, who are bearing a disproportionate 
burden on these wars. Servicemembers, who honorably defend this 
country, depend on laws like USERRA to protect their jobs while they 
are involuntarily activated and sent to war. According to the 
Department of Defense's (DoD) Status of Forces study released in 
November 2007, among Post-9/11 returning National Guard and Reservists, 
nearly 11,000 were denied prompt reemployment and more than 20,000 lost 
seniority, pay, and other benefits awarded to them through their 
dedicated service.
    In addition, nearly 20,000 saw their pensions cut and more than 
15,000 did not receive the training they needed to return to their 
former jobs. Twenty-three percent of National Guard and Reservists 
surveyed in 2006 who could not find a job post-deployment said that 
they were unemployed because their previous employer did not promptly 
rehire them as required by law. It was the intent of Congress in 
enacting USERRA that no veteran be denied employment, reemployment, 
advancement or discrimination in employment for serving their country 
in the interest of protecting our nation.
    The very nature of military service often compromises the ability 
of service members to fulfill their financial obligations and to assert 
many of their legal rights. It is unfair to expect servicemembers to 
concentrate on fighting battles overseas and then simultaneously attend 
to all their personal matters at home. SCRA helps ease the economic and 
legal burdens on military personnel called to active duty status in 
Operation Iraqi Freedom and Operation Enduring Freedom. Relief under 
SCRA extends to actions terminating leases, evictions, foreclosures and 
repossessions, default judgment, lower interest rates on credit cards 
and loans and protects against lapses or termination of insurance 
policies.
    Millions of servicemembers depend on USERRA and SCRA protections 
while they are called to serve their country. USERRA and SCRA were 
created to prohibit discrimination against and eliminate the 
disadvantages faced by deployed servicemembers. The American Legion 
recommends strengthening the enforcement on USERRA and SCRA. There 
needs to be effective consequences for non-compliance or proactive 
regulation of these Acts to ensure that veterans are not disadvantaged 
or unable to return to their previous jobs, due to their honorable 
service to our Nation. The American Legion urges this Subcommittee to 
send a strong message to Congress to ensure full protections and 
benefits under these Acts.
                               __________
    Madam Chairwoman and Members of the Subcommittee:
    The American Legion appreciates this opportunity to share its views 
on USERRA and SCRA.
UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT (USERRA)
    Over seven years of war has caused record high deployment rates of 
reserve component soldiers, who have the responsibility of maintaining 
civilian employment while waiting for the call to serve their nation. 
Many of these soldiers, who struggle daily to balance their dual 
military and civilian lives, have returned home from deployment to find 
their employers not hiring them back. According to the Department of 
Defense's (DoD) Status of Forces study released in November 2007, among 
Post-9/11 returning National Guard and Reservists, nearly 11,000 were 
denied prompt reemployment and more than 20,000 lost seniority, pay, 
and other benefits awarded to them.
    In addition, nearly 20,000 saw their pensions cut and more than 
15,000 did not receive the training they needed to return to their 
former jobs. Twenty-three percent of National Guard and Reservists 
surveyed in 2006 who could not find a job post-deployment said that 
they were unemployed because their previous employer did not promptly 
rehire them as required by law. Sustained and multiple deployments have 
taken a significant toll on service members and their families, who are 
bearing a disproportionate burden of these wars. Service members, who 
honorably defend this country, depend on laws like USERRA to protect 
their jobs while they are involuntarily activated and sent to war. It 
was the intent of Congress in enacting USERRA that no veteran be denied 
employment, reemployment, advancement or discrimination in employment 
for serving their country in the interest of protecting our nation.
    The Uniformed Services Employment and Reemployment Rights Act 
(USERRA) 1994, 38 United States Code (U.S.C.) Sec. Sec. 4301-4334, was 
signed into law on October 13, 1994. USERRA prohibits discrimination in 
employment on the basis of an individual's: prior service in the 
uniformed services; current obligations as a member of the uniformed 
services; or, intent to join the uniformed services. USERRA also 
provides reemployment rights with the pre-service employer following 
qualifying service in the uniformed services. In general, the protected 
person is to be reemployed with the status, seniority, and rate of pay 
as if continuously employed during the period of service. USERRA 
applies to private employers, the Federal Government, and State and 
local governments. It applies to employers operating overseas as well.
    The Department of Labor, through the Veterans' Employment and 
Training Service (VETS), provides assistance to all persons having 
claims under USERRA. The Department of Labor is the enforcement 
authority for USERRA and it processes all formal complaints of 
violations of the law. VETS refers unresolved claims to the Department 
of Justice (DOJ) or the Office of Special Counsel (OSC) for litigation 
as appropriate. The veteran may then request that the Department of 
Justice litigate on their behalf but only after a certain period has 
passed.
    Although USERRA defines individual agency roles and 
responsibilities, it does not make any single individual or office 
accountable for maintaining visibility over the entire complaint 
resolution process. In a report addressing USERRA issues by the 
Government Accountability Office (GAO) in October 2005, it noted that 
the ability of federal agencies to monitor the efficiency and 
effectiveness of the complaint process was hampered by a lack of 
visibility resulting, in part, from the separated responsibilities for 
addressing complaints from among multiple agencies. The GAO report 
recommended that Congress consider designating a single individual or 
office to maintain visibility over the entire complaint resolution 
process from DoD through DOL, DOJ, and OSC. This would encourage 
agencies to focus on overall results than agency-specific outputs and 
thereby improve federal responsiveness to service member complaints 
that are referred from one agency to another. The American Legion 
supports this recommendation by GAO.
    Since September 11, 2001, DoD has relied on more than 600,000 
members of the National Guard and Reserve components to support various 
operations abroad and at home. In particular, from September 2001 to 
July 2007, the department deployed more than 434,000 Reservists to 
support operations in DoD's Central Command area of responsibility. 
During this same period, DOL/VETS have provided USERRA assistance to 
over 410,000 employers and service members. In FY 2006, VETS staff 
closed 1,377 USERRA complaints, recovering $2,346,142.04 in lost wages 
and benefits and in FY 2007, VETS staff closed 1,200 USERRA complaints, 
recovering $1,886,572.95 in lost wages and benefits. Soldiers who are 
called to active duty serve and protect their country. They should not 
come home from a military leave of absence to find they have no job or 
that their seniority has been taken from them.
    With the rising numbers of USERRA cases across the country, The 
American Legion is deeply concerned with the protection of the service 
member and the prevention of the service member not being reemployed by 
their previous employer after deployment(s). USERRA cases have become 
more complex than in the past and frequently involve multiple issues. 
This is due to longer and more frequent deployments of National Guard 
and Reserve members. As currently drafted, USERRA fails to adequately 
support military personnel upon their return to civilian employment as 
numerous employers have violated the rules laid out in Title 38 of the 
United States Code. The American Legion thanks this Subcommittee for 
supporting H.R. 6225, Improving SCRA and USERRA Protections Act of 
2008, which has passed the House and referred to the Senate Veterans' 
Affairs Committee. H.R. 6225 would require courts to grant injunctive 
relief, when appropriate, to veterans filing claims against state or 
private employers under USERRA. The bill would also prohibit 
governmental entities from charging fees to some service members for 
terminating utility contracts, and it would prohibit state and local 
governments from imposing certain taxes on some spouses of service 
members. Additionally, the bill would require public institutions of 
higher learning to refund tuition and fees to service members if they 
must leave school for military service commitments.
    The Servicemembers Access to Justice Act (SAJA) is also new 
legislation that is under consideration. SAJA would strengthen the 
protections in current law to ensure that service members' and 
veterans' employment and reemployment rights are effectively enforced 
under USERRA. Specifically, this bill would make it easier for service 
members to obtain justice when their employment rights are violated by 
prohibiting employers from requiring service members to give up their 
ability to enforce their rights under USERRA in court in order to get a 
job or keep a job.
SERVICEMEMBERS CIVIL RELIEF ACT (SCRA)
    The very nature of military service often compromises the ability 
of service members to fulfill their financial obligations and to assert 
many of their legal rights. On December 19, 2003, the President signed 
into law theServicemembers Civil Relief Act (SCRA). This law is a 
complete revision of the Soldiers' and Sailors' Civil Relief Act 
(SSCRA) 1940. This helps ease the economic and legal burdens on 
military personnel called to active duty status in Operation Iraqi 
Freedom and Operation Enduring Freedom. Relief under SCRA extends to:

      reducing the rate of interest for debts incurred before 
entering active duty to 6 percent
      tolling civil statutes of limitations
      staying civil and administrative proceeding and execution 
of judgments
      protecting against default judgments, evictions, mortgage 
foreclosures and repossessions of property
      providng the ability to terminate residential and 
automobile leases

    With the military's increased reliance on National Guard and 
Reserve units and individuals, creditors residing in remote areas of 
the country outside of the traditional military towns are not aware of 
this Act, including members of the Reserve components. Therefore, 
service members are experiencing serious financial difficulties while 
on active duty--their cars are repossessed, homes foreclosed and credit 
histories ruined because this legislation is unknown. We simply cannot 
afford to have our men and women in Afghanistan, Iraq, or elsewhere 
distracted by concerns over whether someone is seeking a default 
judgment against them back home, or repossessing their leased car, or 
evicting their spouse and children, or selling their house at an 
auction sale, or running up penalties on credit cards with 21 percent 
interest rates.
    In the most unfortunate of circumstances, lenders are unwilling to 
negotiate and assist veterans who are in default status even though 
these veterans are in a good position to correct the situation. It is 
unfair to expect service members to concentrate on fighting battles 
overseas and simultaneously attend to all their personal matters at 
home. Moreover, veterans have a positive track record of following 
through with payments. During the fourth quarter of 2007, only 2.83 
percent of homeowners using Veterans Affairs (VA's) Loan Guaranty 
program were seriously delinquent. This is much lower when compared to 
6 percent for Federal Housing Administration mortgages, and a whopping 
14.44 percent for the subprime mortgages.
    The American Legion has produced a brochure on active duty legal 
rights, copies of which will be distributed across the country. If the 
Transition Assistance Program (TAP) was mandatory, service members and 
local community businesses would also know of this program, and a lot 
of frustration, time and misunderstandings could be avoided. To their 
credit, Navy TAP representatives discuss personal financial planning 
during workshops and seminars. However, the Reserve components need to 
have this issue also addressed pre and post deployment.
    H.R. 4883 is a bill to amend SCRA to provide for a limitation on 
the sale, foreclosure, or seizure of property owned by a service member 
during a 1 year period following the service member's period of 
military service. This legislation would greatly assist those veterans 
that were deployed to a combat zone and had little time to successfully 
transition from active duty military service to the civilian sector. 
Members of the Reserve components would be the largest benefactors of 
an extension from 90 days to 1 year. Enactment of this legislation 
would provide veterans an extended period of time to become employed, 
correct all their finances and assist them in the transition process. 
The American Legion supports this legislation.
CONCLUSION
    Millions of service members depend on USERRA and SCRA protections 
while they are called to serve their country. USERRA and SCRA were 
created to prohibit discrimination against and eliminate the 
disadvantages faced by deployed service members. Again, The American 
Legion recommends strengthening the enforcement on USERRA and SCRA. 
There needs to be effective consequences for non-compliance or 
proactive regulation of these Acts to ensure that veterans are not 
disadvantaged or unable to return to their previous jobs, due to their 
honorable service to our Nation. An individual should never be forced 
to choose between serving in the National Guard/Reserve and keeping 
their civilian employment. Such decisions could easily and quickly 
undermine our National Security. The American Legion urges this 
Subcommittee to send a strong message to Congress to ensure full 
protections and benefits under these Acts.
    Thank you for the opportunity to submit the opinion of The American 
Legion on these issues.

                                 
 Prepared Statement of James P. Mitchell, Chief of Staff, Director of 
             Communications, U.S. Office of Special Counsel
                           EXECUTIVE SUMMARY
    Not all employers understand their obligations to their employees 
who, through active duty military service, meet their own obligations 
to our nation. Some servicemembers, mostly members of the National 
Guard and Reserve who return from active duty, are turned away by their 
civilian employers upon their return. Some, who also serve their 
country as Federal civilian employees, return from active duty only to 
find that the government that sent them to war is unwilling to welcome 
them back to their jobs.
    The Uniformed Services Employment and Reemployment Rights Act 1994 
(USERRA) strengthened the enforcement mechanism for Federal employees 
by giving the Merit Systems Protection Board (MSPB) explicit 
jurisdiction over USERRA violations by Federal executive agencies.
    Under USERRA, a person claiming a violation by any employer may 
make a complaint to the Department of Labor's Veterans' Employment and 
Training Service (DOL-VETS) which must investigate and attempt to 
resolve the matter. If DOL-VETS cannot resolve a complaint involving a 
Federal executive agency, the individual may appeal to the MSPB, or 
request a referral to the U.S. Office of Special Counsel (OSC) for 
possible representation before the MSPB and, if necessary, the U.S. 
Court of Appeals for the Federal Circuit.
    In 2004, Congress mandated a demonstration project whereby OSC 
would receive roughly half of Federal USERRA claims directly from 
claimants. By combining both the investigative and prosecutorial 
functions in one agency, Congress hoped to determine whether OSC could 
provide better service to Federal employees filing USERRA claims.
    OSC obtained corrective action for servicemembers in more than 30 
percent of the claims filed with us and took less than 120 days on 
average to resolve cases. OSC achieved this high rate of corrective 
action through its thorough investigations, expert analysis of the law, 
ability to educate Federal employers about the requirements of USERRA, 
and a credible threat of litigation before the MSPB. We have the 
ability to get quick and effective relief, while providing a 
centralized point of contact for all service members who work for the 
Federal government.
    The demonstration project expired on December 31, 2007, removing 
OSC authority to accept directly USERRA claims made by federally-
employed servicemembers. Our role in USERRA enforcement continues; if 
DOL-VETS is unable to resolve a claim, a claimant may request that the 
matter be referred to OSC. We may then represent the claimant before 
the MSPB.
    Granting OSC exclusive jurisdiction over the Federal sector USERRA 
cases would benefit Federal employee claimants by having a single 
agency receive, investigate and resolve their claims. Moreover, given 
our expertise and experience in protecting Federal employees from 
prohibited personnel practices, Federal sector USERRA investigation and 
enforcement is a natural ``fit'' for OSC. We don't know when our 
servicemembers will start returning home in greater numbers, boosting 
demand for USERRA enforcement. But, we believe that OSC has 
demonstrated to Congress that it should assign this important 
responsibility solely to OSC.
INTRODUCTION
    Chairwoman Herseth Sandlin, Ranking Member Boozeman, and members of 
the committee: good morning, and thank you for the opportunity to 
testify today on important matters of concern to our servicemembers, 
their families, and ultimately our national security.
    My name is James P. Mitchell and I am Chief of Staff and Director 
of Communications of the U.S. Office of Special Counsel (OSC), an 
independent investigative and prosecutorial agency. I appreciate the 
opportunity to appear before you today to provide our perspectives on 
the enforcement of the Uniformed Services Employment and Reemployment 
Rights Act, or USERRA.
    The U.S. Office of Special Counsel values the tremendous commitment 
of our military men and women. We are dedicated to protecting the 
employment rights of those who serve our nation both as members of the 
Federal civilian workforce and as members of our Armed Forces. We honor 
our commitment by vigorously enforcing USERRA on their behalf, 
including, when necessary, by prosecuting Federal employers before the 
U.S. Merit Systems Protection Board (MSPB).
    While our servicemembers understand and fulfill their obligations 
to our nation, unfortunately, not all employers understand and fulfill 
their obligations to their employees who serve on active duty. Some 
servicemembers, mostly members of the National Guard and Reserve who 
return from active duty in Iraq and Afghanistan combat zones and 
elsewhere, are turned away by their civilian employers or not afforded 
their full rights and benefits upon their return.
    It is difficult to imagine an employer welcoming back a returning 
service member with words to the effect, ``Welcome back--you're 
fired!'' But it happens. This is especially troubling when the very 
government that sent them to war does not welcome them back to their 
government jobs upon their return, or begrudgingly reinstates them, but 
with less pay, status, or benefits than they are entitled to under the 
law.
    Civilian employees of the Federal government represent about 25 
percent of the National Guard and Reserve. Under USERRA, the Federal 
government is supposed to be a ``model'' employer. Yet the very 
government that sends its employees forth into combat might deny them 
their livelihood when they return home.
PROTECTING JOBS OF VETERANS
    Protecting the jobs of returning veterans is not a new concept. The 
Veterans' Reemployment Rights (VRR) law was enacted in 1940 to provide 
those protections. Over time, through a series of amendments and 
sometimes conflicting judicial constructions, it became cumbersome and 
confusing. It had enforcement loopholes as well, especially regarding 
the Federal government as a civilian employer.
    Enacted in 1994, USERRA improved job protections for veterans. It 
strengthened the enforcement mechanism for Federal employees by giving 
the MSPB explicit jurisdiction to adjudicate allegations of USERRA 
violations by Federal executive agencies as employers.
    Under USERRA, a person claiming a violation by any employer 
(Federal, state, local, or private sector) is permitted to make a 
complaint to the Department of Labor's Veterans' Employment and 
Training Service (DOL-VETS), which must investigate and attempt to 
resolve the matter.
    If DOL-VETS cannot resolve a complaint involving a private, state, 
or local employer, the individual may file a private lawsuit or request 
a referral to the Attorney General for possible representation in 
Federal district court.
    If the employer is a Federal executive agency, the individual may 
appeal to the MSPB, or request a referral to OSC for possible 
representation before the MSPB and, if necessary, the U.S. Court of 
Appeals for the Federal Circuit.
    USERRA thus expanded OSC's role as protector of the Federal merit 
system and Federal workplace rights by giving OSC prosecutorial 
authority over Federal sector USERRA claims. However, it also 
established a bifurcated process in which DOL-VETS first investigates 
and attempts to resolve such claims, followed by possible referral to 
OSC for prosecution before the MSPB when there is no resolution by DOL-
VETS.
IMPROVING PROTECTION FOR FEDERAL EMPLOYEES
    Congress recognized the inefficiencies in this process, as well as 
OSC's unique expertise in investigating and prosecuting Federal 
employment claims. In 2004, Congress passed the Veterans Benefits 
Improvement Act (VBIA), and included a demonstration project to 
determine whether OSC could provide better service to Federal employees 
filing USERRA claims.
    Under this demonstration project, roughly half of Federal USERRA 
claims were submitted directly to OSC for investigation and prosecution 
between February 2005 and December 2007.\1\ During this period, the 
time-consuming process that shuffled Federal USERRA claims between 
different Federal entities, before being resolved by OSC, was 
eliminated.
---------------------------------------------------------------------------
    \1\ Under the demonstration project, OSC had exclusive 
investigative jurisdiction over Federal-sector USERRA claims where: 1) 
the claimant's Social Security Number ended in an odd digit, or 2) the 
claimant alleged a prohibited personnel practice (PPP), as well as a 
USERRA violation (regardless of Social Security Number). DOL-VETS 
retained investigative jurisdiction over all other Federal sector 
USERRA claims.
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    During the demonstration project, OSC obtained corrective action 
for service members in over 30 percent of the USERRA claims filed with 
us, a rate that is significantly higher than that for most governmental 
investigative agencies. OSC achieved this high rate of corrective 
action through its thorough investigations, expert analysis of the law, 
ability to educate Federal employers about the requirements of USERRA, 
and a credible threat of litigation before the MSPB.
    A Government Accountability Office (GAO) study of the demonstration 
project showed that it took less than 120 days on average for OSC to 
resolve cases (which includes prosecution as well as investigative 
time).
    Our centralized and straight-line process has ensured that the 
USERRA claims we receive are resolved efficiently, thoroughly, and, 
correctly--under the law. The numerous corrective actions we've 
obtained for returning servicemembers include back pay, promotions, 
restored benefits and seniority, time off and broader ``systemic'' 
changes that prevent future USERRA violations where they work.
    In addition to obtaining corrective action for the individual 
employee, in our role as protector of the Federal merit system, OSC 
seeks ``systemic'' corrective action to prevent future violations by an 
agency. For example, we have assisted agencies in modifying their leave 
and promotion policies to comply with USERRA, provided USERRA training 
to agency managers and HR specialists, and required agencies to post 
USERRA information on their websites and in common areas.
    In a specific case involving the U.S. Postal Service, OSC was 
instrumental in restoring military leave time that was denied to an 
Agency employee. In addition, we worked with the agency to ensure that 
managers accommodate employees who perform military duty by identifying 
and scheduling replacement workers and posting USERRA informational 
posters in locations accessible to employees. The claimant indicated 
that after the Special Counsel's involvement, he noticed a greater 
interest in the agency's efforts to recognize and support veterans.
    Congress tied the outcome of the USERRA demonstration project to a 
GAO evaluation. OSC participated in this evaluation, but GAO's report 
did not meet the April 1, 2007 deadline mandated by Congress. Instead, 
the final report was published only two weeks before the congressional 
August recess, leaving Congress with no opportunity to act on USERRA 
before the demonstration project would conclude on September 30, 2007.
    Moreover, the GAO report did not address the central question that 
the demonstration project was intended to answer: are Federal sector 
USERRA claimants better served when they are permitted to make their 
complaints directly to OSC, for both investigation and litigation, 
bypassing the bifurcated process of referral between agencies? We 
submit that the answer is an emphatic ``yes.''
    The demonstration project was ultimately extended by Congress 
through the FY2008 Continuing Resolution to December 31, 2007, when OSC 
lost the authority to accept directly USERRA claims made by federally 
employed servicemembers. As a result, OSC's role is again limited to 
providing representation to Federal employees who request that their 
USERRA claims be referred to OSC for possible representation before the 
MSPB when DOL-VETS cannot resolve their claims.
OSC: POISED TO HANDLE ALL FEDERAL USERRA CLAIMS
    Although our role is now reduced considerably, we at OSC are 
privileged to be engaged in the Federal sector USERRA enforcement. 
Because the mission of OSC is to protect the Federal Merit System, our 
specialized USERRA unit is staffed with attorneys and investigators who 
are experts in Federal personnel law and have years of experience 
investigating, analyzing, and resolving alleged violations of Federal 
employment rights.
    We are proud of our achievements in enforcing USERRA. We filed the 
first ever prosecutions by OSC in the law's history, obtaining 
corrective action in several cases that had been delayed for years or 
considered non-winnable. For example, in that prosecution, we obtained 
more back pay than originally requested by the claimant, attorneys' 
fees, and interest on those amounts.
    The case of an Army Corps of Engineers employee, who was not 
reemployed after serving in the Air Force, remained unresolved until 
OSC received the case. We prosecuted before the MSPB and obtained full 
corrective action for the servicemember, including $85,000 in back pay, 
reemployment in his former position, and full restoration of seniority 
and benefits.
    When an injured Iraq war veteran returned from duty only to be sent 
home by his Federal employer because he could no long perform his 
former job, we convinced the agency to find him a suitable job 
consistent with his physical limitations, along with back pay.
    Another case involved a claimant who alleged that the U.S. 
Department of Homeland Security (DHS) mischarged his leave and imposed 
a debt on him as a result of his service in the Air Force Reserve. At 
the USERRA unit's request, DHS took a series of actions necessary to 
make the claimant whole, including restoring annual leave, canceling 
the debt, and reimbursing him for lost pay.
    Early this year, a more than sevem-year wait for USERRA relief 
ended for an Air National Guardsman, who lost his Federal job while on 
active military duty. The servicemember filed a USERRA complaint with 
DOL-VETS in November 2000. In 2004, after DOL-VETS had been unable to 
resolve his claim, he requested it be referred to OSC. It was not. 
However, within a few days of the matter being raised in a Senate 
hearing by Alaska Senator Lisa Murkowski, the case was finally referred 
to OSC last November. Within a few months, OSC negotiated a settlement 
that provided the servicemember with 65 months of back pay plus 
interest, and restored his Federal retirement benefits as if he'd been 
properly reemployed in June 2000.
    Many of the claimants described above could have received relief 
faster had OSC been able to receive and investigate their claims from 
the beginning, without the need for attempted resolution and referral 
by DOL-VETS. As the GAO report found, the referral process alone adds 
an average of over eight months to the resolution of such claims (i.e., 
from the time VETS completes its investigation and attempted resolution 
to the time DOL's Solicitor's Office refers the claim to OSC). In the 
last case described above, this process took years and delayed 
significant relief for a deserving servicemember.
    By authorizing OSC to directly accept some Federal USERRA claims 
from the time they are filed, the recently concluded USERRA 
demonstration project eliminated the cumbersome referral process and 
allowed claimants to obtain faster, more effective relief. Instead of 
having to rely on another agency's investigation and frequently having 
to conduct additional investigation, OSC has control of the 
investigation throughout. Moreover, OSC can negotiate with the agency 
and more quickly file with the MSPB, if necessary. Agencies are aware 
of the credible threat of litigation by OSC and more willing to quickly 
resolve meritorious claims as a result. Claimants benefit from a more 
efficient, transparent process that increases accountability and 
communication by having a single entity handle and resolve their claim 
from beginning to end.
    In cases referred from DOL to OSC, OSC has often found that further 
investigation is needed to make a determination, or that the claim has 
not been fully or properly analyzed by DOL under the law. For instance, 
in two of the cases filed by OSC with the MSPB during the current 
Special Counsel's term, DOL recommended that OSC not afford the 
claimant representation (i.e., that the claim was non-meritorious), but 
OSC disagreed and obtained full relief for the servicemembers. 
Authorizing OSC to directly receive and investigate all Federal USERRA 
claims would eliminate these problems and extend the benefits described 
above to all Federal servicemembers.
    OSC is committed to getting as much relief as the law allows for 
our brave service members, and doing so as quickly as possible. These 
patriots have given their all in the service of this great Nation. They 
should never be hung out to dry by a long, drawn-out, confusing 
process. OSC is passionate about obtaining relief for all who come to 
us, and no less for the soldiers of our country who also serve as 
civilians in the Federal government.
    That passion extends beyond resolution of individual USERRA claims. 
Early this month, the Administrator of the Office of Personnel 
Management (OPM) issued a memorandum to heads of executive departments 
and agencies changing a leave policy for Federal employees returning 
from active duty. Previously, OPM's guidance allowed five days of 
excused absence for a returning servicemember, but only upon return 
from a single deployment. The revised policy states that Federal 
civilian employees returning from active duty may receive five days of 
uncharged leave (excused absence) from their civilian duties each time 
they return from deployment. It also allows employees who have already 
returned to work and did not receive these five days of excused absence 
to take them at a time mutually agreeable to the employee and the 
agency.
    This policy change was the result of an OSC initiative: in a July 1 
letter to OPM Administrator Linda Springer, the Special Counsel noted 
that the policy of allowing only a single five-day period of excused 
absence for a returning service member was inconsistent the OPM 
Administrator's own sentiment expressed in a 2003 memorandum 
implementing the policy:

    ``Many of our employees have endured great disruption to their 
families and their normal lives as a result of their service in the war 
against terrorism. Therefore, I join the President in urging that 
agencies do everything possible to ease their return to civilian 
life.''

    The Special Counsel's letter noted that many Federal employees have 
been deployed multiple times, and have suffered on multiple occasions 
the ``disruption to their families and their normal lives'' mentioned 
in OPM's memorandum. He cited studies indicating an increased incidence 
of post-traumatic stress disorder and other psychological problems in 
those who have served multiple tours. Suggesting that returning 
military personnel have an even greater need for five days of 
administrative leave after a subsequent tour than after their first, he 
requested that OPM change its guidance and OPM responded favorably.
    In sum, granting OSC exclusive jurisdiction over all Federal sector 
USERRA cases would benefit Federal employee claimants by having a 
single, specialized agency resolve their claims, as evidenced by OSC's 
track record in USERRA enforcement and its performance during the 
demonstration project. For these reasons, and given OSC's almost 30 
years' experience in investigating and resolving Federal employment 
claims, Federal sector USERRA investigation and enforcement is a 
natural ``fit'' for OSC and its mission. Moreover, such a change would 
free DOL-VETS from having to navigate Federal personnel law (OSC's 
particular expertise), allowing DOL-VETS to focus on serving the larger 
volume of USERRA claimants from the private sector and those in state 
and local governments.
    Thus, the benefit to service members would be doubly positive--for 
Federal service members who would benefit from OSC's specialized 
experience, and for non-Federal service members who would benefit from 
greater attention to their claims at DOL-VETS.
USERRA ``SURGE'' AHEAD?
    Today, America is in the middle of the largest sustained military 
deployment in 30 years. That deployment is not limited to the 
approximately 200,000 servicemembers in Iraq and Afghanistan at this 
moment. In recent years, the number of members of the National Guard 
and Reserve mobilized at one time peaked at more than 212,000. As of 
August 6, the Department of Defense reported that 107,754 members of 
the National Guard and Reserve had been mobilized and were on active 
duty.
    With Federal employees comprising about 25 percent of the National 
Guard and Reserve, will we see a ``spike'' in the number of claims 
filed by returning servicemembers who have been turned away from their 
employers? Will the government demonstrate its support for our troops 
by being fully ready to provide prompt and effective action on these 
claims?
    We don't know when they will start returning home in greater 
numbers, boosting demand for USERRA enforcement. We believe that 
adequate information has been developed to support a decision by 
Congress to assign the task of investigating and resolving USERRA 
claims by Federal employees to OSC. We are poised to assume this 
responsibility and to do our part in making their transition back to 
civilian life as smooth as possible.
    Thank you for your attention and I look forward to your questions.

                                 
 Prepared Statement of John M. McWilliam, Deputy Assistant Secretary, 
  Veterans' Employment and Training Service, U.S. Department of Labor
    Madam Chairwoman Herseth Sandlin, Ranking Member Boozman, and 
distinguished members of the Subcommittee:
    Thank you for the opportunity to discuss employment and 
reemployment concerns resulting from deployments and multiple 
deployments of Active and Reserve Forces.
    The mission of the Veterans' Employment and Training Service (VETS) 
is to provide veterans and transitioning service members with the 
resources and services to succeed in the 21st century workforce. One of 
the most important ways that we meet that mission is by providing 
employment protections for service members as well as National Guard 
(NG) and Reserve Component (RC) members through the Uniformed Services 
Employment and Reemployment Rights Act 1994 (USERRA).
    Congress enacted USERRA to protect the employment rights of the men 
and women who leave their jobs while serving as members of our active 
military, National Guard and Reserve. USERRA authorizes the Secretary 
of Labor (in consultation with the Secretary of Defense) to prescribe 
rules implementing the law as it applies to private, state and local 
employers. On December 19, 2005, VETS issued regulations to implement 
USERRA as it relates to those covered employers. These milestone 
regulations established the rules these covered employers must follow 
as well as spell out the legal rights for eligible service members.
    Since the onset of military operations in Afghanistan and Iraq, 
over 1.6 million members of the active duty military have served in 
these two theaters. In addition, many of the Nation's National Guard 
units and Reservists have also been called to active duty in support of 
the Global War on Terror and have served in these theaters or 
elsewhere.
    In fact, the Department of Defense (DoD) reports that over 600,000 
National Guard and Reserve mobilizations have occurred since September 
11, 2001. This represents the largest deployment of the National Guard 
in the past half century.
What Returning Veterans Face When They Come Home
    These deployments create significant challenges for service members 
and their families. Many members of the National Guard and Reserve are 
married and employed. Long tours of duty overseas interrupt their 
normal roles as workers, parents and members of the community. Lengthy 
tours of duty also challenge employers as they deal with these absences 
and with the reintegration of service members back into the workforce. 
In addition, some National Guard and Reserve members are self-employed 
or own a small business. Extended deployments may mean they face 
special problems, including economic losses or other adverse effects.
    To put this into perspective, each year, nearly 320,000 military 
members return to civilian status--either through retirement, voluntary 
separation from active duty, demobilization or discharge from the 
National Guard or Reserve, or as a result of a discharge due to 
disability.
Service Members Need Good Information and Assistance When They Return 
        to Their Civilian Lives and Jobs
    Service members transitioning to civilian life from active duty 
must have good information as well as the tools and skills to enable a 
smooth transition back to civilian life. This information and 
assistance comes from many sources.
    DoD and each of the military services strive to assist service 
members as they separate from active duty or demobilize and return to 
their civilian life and jobs. Active duty members participate in formal 
separation counseling and transition assistance programs when they are 
preparing for discharge. National Guard and Reserve commanders provide 
information and assistance to their members when they demobilize, so 
their members know how and where they can receive help if they need it. 
States also assist. Most states have created programs to increase 
public support and awareness of returning service members. Services 
include outreach and family support activities, financial assistance 
such as emergency funds, educational assistance, mental health and 
other comprehensive services and assistance to augment the services 
provided by the federal government, including the Transition Assistance 
Program (TAP). TAP consists of comprehensive three-day workshops which 
are provided at selected military installations nationwide. Workshop 
attendees learn about job searches, career decision-making, current 
occupational and labor market conditions, and resume and cover letter 
preparation and interviewing techniques. Participants also are provided 
with an evaluation of their employability relative to the job market 
and receive information on the most current veterans' benefits. DOL has 
also offered to provide TAP employment workshops to returning National 
Guard and Reserve members.
                 Protecting Service Members' Employment
    One of our Department's top priorities is protecting our military 
members' jobs when they're called up to serve. We work hand in hand 
with DoD and Justice (DOJ), and the Office of Special Counsel (OSC) to 
enforce USERRA.
The Uniformed Services Employment and Reemployment Rights Act
    USERRA protects the public and private sector civilian job rights 
and benefits of veterans and members of the armed forces, including 
National Guard and Reserve members. The law prohibits employer 
discrimination due to military obligations and provides reemployment 
rights to returning service members. DOL's Veterans' Employment and 
Training Service (VETS) not only investigates complaints by service 
members and veterans, it also administers a comprehensive outreach, 
education, and technical assistance program here in the United States 
and around the world.
    VETS works closely with DoD's Office of the Assistant Secretary for 
Reserve Affairs' Employer Support of the Guard and Reserve (ESGR) to 
ensure that service members are briefed on their USERRA rights before 
and after they are mobilized. We conduct continuous USERRA outreach and 
education to inform service members and employers on their rights and 
responsibilities under the law. Since most complaints result from a 
misunderstanding of the USERRA obligations and rights, we took an 
important step in 2005 to make it easier to understand the law by 
promulgating clear, easy-to-understand regulations in question-and-
answer format. From the terrorist attacks on September 11, 2001, 
through the end of March 2008, VETS has provided USERRA assistance to 
over 535,000 service members, employers and others. This includes 341 
USERRA mobilization and demobilization briefings given to 267,000 
service members. The 2006 Status of Forces Survey reported that 
National Guard and Reserve Component members received an average of two 
USERRA briefings each, and only seven percent claimed to have 
experienced USERRA-related problems. We believe that this low rate of 
reported USERRA problems is due, in part, to our extensive outreach and 
education; the agency's user-friendly 2005 regulations; the 
collaborative efforts of DOL, DOJ, OSC and ESGR; and to the tremendous 
support the vast majority of employers show for the Nation's men and 
women in uniform.
    Our record in enforcing USERRA shows that we vigorously investigate 
complaints, and when employers do not comply with the law we make every 
effort to bring them into compliance. VETS does this through a nation-
wide network of over 100 highly skilled federal employees who are 
veterans employment specialists. Almost all are veterans themselves. 
They are trained to meet the many workplace employment needs of today's 
service members. VETS' federal employment specialists are located where 
veterans need them most, and they are in all 50 states, the District of 
Columbia, and Puerto Rico. These specialists conduct outreach and 
provide technical assistance to employers, service members, veterans, 
and veterans' organizations on employment and reemployment issues at 
the national, state and local levels, including at locations where 
service members are demobilized.
    VETS teams with ESGR, the OSC, and DOJ to ensure the employment 
rights and benefits for returning service members are protected. ESGR 
engages in a number of efforts to ensure employer support for the Guard 
and Reserve is sustained. ESGR also reinforces the relationship between 
employers and employees through informal USERRA mediation. DOJ and the 
OSC help enforce USERRA by representing USERRA complainants when DOL is 
unable to resolve the complaint and/or when the service member or 
veteran requests their case be referred.
    VETS has a decades-long history of protecting the rights and 
interests of American service men and women employed in both the public 
and private sectors by investigating complaints under USERRA and its 
predecessor laws. Complaints under the Veterans' Reemployment Rights 
Act (VRRA), the predecessor to USERRA (USERRA was enacted into law by 
Public Law 103-353, October 13, 1994) peaked in 1991 following 
mobilizations for Operation Desert Storm, when claims topped 2,500. 
After 9/11, USERRA complaints rose again, from approximately 900 per 
year to approximately 1,500 in FY 2004 and FY 2006. Complaints in FY 
2007 decreased to 1,365. As the chart below shows, complaints during 
the Global War on Terror have never approached the Desert Storm high. 
Once again, we attribute much of this result to VETS' comprehensive 
outreach and education efforts; our work with DoD and DOJ; the 2005 
regulations; and, the strong support of those who employ our Nation's 
service members. In our view, the enactment of USERRA in 1994 also 
played a role, as the statute provided stronger protections and other 
improvements that resulted in a better understanding of the job rights 
and benefits of veterans and members of the armed forces.
                      USERRA AND VRRA CASES OPENED


[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]



    (NOTE: VRRA cases are those prior to the enactment of USERRA on 
October 13, 1994)
    VETS is committed to continuous improvement of our USERRA 
investigative processes and our reporting to Congress on 
investigations. As a result of that commitment, we have made a number 
of investments to our USERRA program, and more are planned. For 
example:
DESERT STORM
GWOT
      We have established a corps of Senior Investigators and 
stationed one in each of our Regions. The Senior Investigators are 
highly specialized experts who are in constant contact with the VETS 
National Office and with their respective Regional Solicitor's offices, 
and provide training and support to investigators in the field.
      In February 2008, VETS implemented a new USERRA 
Operations Manual, and all of our investigative staff has been trained 
on its use. The new manual is electronic and provides search functions 
to enable investigators to quickly locate appropriate procedures and 
pertinent sections of law and regulation. The new manual clarifies 
procedures for notifying claimants of their right to referral, and for 
recording the appropriate case outcomes in the VETS investigative 
database.
      In order to continue to ensure the privacy of our 
electronic investigative data, VETS moved its investigative database 
out of a secure contractor facility to its current location in the 
Department behind the DOL firewall.
      VETS is enhancing and expanding its investigator 
training, to include classroom, online distance learning, and regional 
training seminars.
      VETS has implemented new procedures for enumerating cases 
reported to Congress in order to eliminate any duplication.
      In order to ensure that every case is looked at by at 
least two individuals, VETS is requiring that each USERRA case is 
reviewed by a higher-level supervisor before a claimant is notified of 
the results of our investigation.
      We are evaluating currently available systems that would 
enable us to move to complete electronic case management. This would 
facilitate higher-level reviews within VETS to assist our investigators 
and improve communications on specific cases between VETS and our 
Solicitor's office and between our Solicitor's office and DOJ and OSC.
      VETS is conducting an evaluation of the USERRA 
investigative process to examine the current process and identify 
program improvement strategies to increase efficiency and 
effectiveness.
Protecting the Employment Rights of Servicemembers in Arkansas
    From the start of the Global War on Terror, we observed an initial 
increase in USERRA complaints in Arkansas, including 17 in FY 2002, 22 
in FY 2003, and 30 in FY 2004, although complaints have steadily 
declined over the past few years. In FY 2005, complaints dropped down 
to 27, and in FY 2006 complaints dropped down to 17, a decrease of 
nearly 40 percent. In addition to everything that VETS has done to work 
with both service members and employers alike to decrease the number of 
USERRA complaints, the State of Arkansas has been a more than willing 
partner in these efforts.
    The State of Arkansas has a recently signed Memorandum of 
Understanding (MOU) between the Adjutant General of the Arkansas 
National Guard, the Director of the Arkansas Department of workforce 
Services and the Assistant Secretary of Labor for Veterans' Employment 
& Training. This MOU outlines the new proactive reintegration program 
for National Guard and Reserve members returning to Arkansas as well as 
the continuum of care needed to support a normal life after 
redeployment for our soldiers and families.
    The new reintegration program provides the following schedule of 
services:

      A first meeting is held 30 days after demobilization. 
This is a one-day event, coordinated by the Reintegration working 
group, held offsite within the local community with family members and 
support activities. This event gives the opportunity for families to 
come together and meet one-on-one with a number of agencies. Booths 
available to assist the Soldiers and families are: Military One Source, 
ESGR, VET Center, Judge Advocate General, Department of Education, 
Department of Veterans Affairs, Chaplain, the Arkansas Employment 
Agency, and Military and Family Life Consultant (MFLC). The intent is 
to offer any services that a soldier or family might need to assist the 
soldier with reintegrating into normal life.
      A second meeting is held 60 days after demobilization. 
This is a two-day event, coordinated by the reintegration working 
group, held offsite at a retreat-type setting with family members and 
appropriate support activities.
      A third meeting is held 90 days after demobilization. 
This is a two-day event at the Guard unit's local Armory. It includes 
follow-up briefings by Post-Deployment Health Reassessment (PDHRA), and 
VA Dental in-processing.

    So far in Fiscal Year (FY) 2008, DOL/VETS has participated in two 
joint Reintegration Briefings with approximately 90 returning National 
Guard soldiers in attendance. At each of these briefings, DOL/VETS has 
provided information on employment and reemployment, and we have teamed 
with the Arkansas Department of workforce Services to ensure all 
returning service members are fully aware of their rights and that they 
know where and how they can get help if they need it. The Arkansas 
National Guard Transition Assistance Advisor, Ms. Barbara Lee, is 
preparing a schedule for the return of the 39th Brigade, approximately 
3,000 soldiers, at the end of this year or early next year. VETS will 
be there on-site to provide those returning service members information 
on their rights under USERRA.
    Enforcement is a major focus of VETS, and potential violations of 
USERRA are taken very seriously. VETS has made it easier for a service 
member to determine if he or she has a valid complaint and if so, to 
file a USERRA complaint online through our interactive USERRA elaws 
Advisor. The Advisor leads the user through a series of questions and 
based on the responses, provides the individual with customized 
information on his or her eligibility, rights and responsibilities 
under the law. The elaws Advisor is available at www.dol.gov/elaws/
userra.htm.
Conclusion
    The United States has the best, most capable, most technologically 
advanced military in the world. The dedication to service and the 
willingness of our military to sacrifice in order to support our 
National security is extremely important. The men and women in uniform 
are the guarantors of our freedom and preserve our way of life. Our 
service members are known for their intelligence, strong work ethic, 
loyalty, discipline, and leadership abilities. They have the highly 
sought after marketable professional qualities. Our country is a better 
and safer place because of them.
    DOL takes seriously its responsibilities for assisting our 
veterans, especially those returning from Iraq and Afghanistan, in: 
returning to their previous employment; finding good new jobs and 
careers; and protecting their job rights. These brave men and women are 
protecting our National security and we must do everything we can to 
help protect their economic and job security.
    Thank you for allowing me to testify before this Subcommittee 
today. I am prepared to respond to your questions.

                                 
                   MATERIAL SUBMITTED FOR THE RECORD

              Chairwoman Sandlin's Letter to Mr. McWilliam
                                     Committee on Veteran's Affairs
                               Subcommittee on Economic Opportunity
                                                   Washington, D.C.
                                                    August 26, 2008
Mr. John McWilliam
Deputy Assistant Secretary
Veterans' Employment and Training Service
U.S. Department of Labor
200 Constitution Ave, NW
Room S-2220
Washington, DC 20210

Dear Mr. McWilliam:

    I am sending you some questions in reference to our House Committee 
on Veterans' Affairs Subcommittee on Economic Opportunity Field Hearing 
on Uniformed Services Employment and Reemployment Rights Act and 
Servicemembers Civil Relief Act Issues on August 18, 2008. Please 
answer the enclosed hearing questions by no later than September 26, 
2008.
    In an effort to reduce printing costs, the Committee on Veterans' 
Affairs, in cooperation with the Joint Committee on Printing, is 
implementing some formatting changes for material for all full 
committee and subcommittee hearings. Therefore, it would be appreciated 
if you could provide your answers consecutively on letter size paper, 
single-spaced. In addition, please restate the question in its entirety 
before the answer.
    Due to the delay in receiving mail, please provide your response to 
Ms. Orfa Torres by fax at (202) 225-2034. If you have any questions, 
please call (202) 226-4150.
            Sincerely,
                                         Stephanie Herseth Sandlin,
                                                         Chairwoman
                               __________
                                           U.S. Department of Labor
                              Office of the Assistant Secretary for
                                  Veterans' Employment and Training
                                                    October 7, 2008
The Honorable Stephanie Herseth Sandlin
Chairwoman
U.S. House of Representatives
331 Cannon House Office Building
Washington, DC 20515

Dear Chairwoman Herseth Sandlin:

    Thank you for the opportunity to appear before the House Veterans' 
Affairs Committee's Economic Opportunity Subcommittee Field Hearing on 
August 18, 2008, to testify on the U.S. Department of Labor Veterans' 
Employment and Training Service (VETS) and its administration of the 
Uniformed Services Employment and Reemployment Rights Act of 1994 
(USERRA).
    Subsequent to the oversight hearing, the Subcommittee forwarded a 
question for the record to the Department of Labor. Our response to 
that question is enclosed. In accordance with your instructions, we 
have also provided this response to Ms. Ofra Torres via email and 
facsimile.
    Thank you for the opportunity to appear before the Subcommittee and 
for your continued support of employment services for America's 
veterans.
            Sincerely,
                                                  John M. McWilliam
                                         Deputy Assistant Secretary
                               __________
      
    Question 1: Submit a list of U.S. Department of Labor's USERRA 
related claims. This list should include the date the claim was opened 
and the closing date from 2005 to 2008.

    Response: Rather than listing the over 3500 cases closed by the 
Department of Labor's Veterans' Employment and Training Service (VETS) 
over these years, we developed the following table to facilitate the 
Subcommittee's analysis of the length of time USERRA cases remained 
open in VETS over the years in question. The table indicates that in 
each year, from FY 2005 through August 2008, approximately 85% or more 
of all cases were closed in 120 days or less.
 USERRA Cases Closed by U.S. Department of Labor Veterans' Employment 
        and Training Service (VETS), FY 2005 through August 2008

----------------------------------------------------------------------------------------------------------------
                                                                                                        FY 2008
              Case Age at Closing (days)                     FY 2005           FY 2006       FY 2007      thru
                                                                                                         August
----------------------------------------------------------------------------------------------------------------
<30                                                                  404              529        418        412
----------------------------------------------------------------------------------------------------------------
31 to 60                                                             299              315        313        312
----------------------------------------------------------------------------------------------------------------
61 to 90                                                             201              221        199        233
----------------------------------------------------------------------------------------------------------------
91 to 120                                                            100               97        111        115
----------------------------------------------------------------------------------------------------------------
121 to 150                                                            53               65         65         80
----------------------------------------------------------------------------------------------------------------
151 to 180                                                            39               34         35         44
----------------------------------------------------------------------------------------------------------------
181 to 210                                                            22               16         18         18
----------------------------------------------------------------------------------------------------------------
211 to 240                                                             5               16         12         17
----------------------------------------------------------------------------------------------------------------
241 to 270                                                            15                9          7          9
----------------------------------------------------------------------------------------------------------------
271 to 300                                                             9                5          4          4
----------------------------------------------------------------------------------------------------------------
301 to 330                                                             5                3          4          4
----------------------------------------------------------------------------------------------------------------
331 to 365                                                             3                6          1          4
----------------------------------------------------------------------------------------------------------------
365+                                                                   6                5          6         12
----------------------------------------------------------------------------------------------------------------
TOTAL \1\                                                           1161             1321       1193       1264
----------------------------------------------------------------------------------------------------------------
\1\ These total case closures differ from the total closures reported in VETS' USERRA Annual Reports to Congress
  because multiple closures of the same case have been eliminated in this table. This is not possible in annual
  reports because cases might be reopened and then closed in a later year.

                                 
