[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]



 
LEGISLATIVE HEARING ON H.R. 3257, H.R. 3484, H.R. 3579, H.R. 3813, H.R. 
                            3948, H.R. 3976,

              H.R. 4079, H.R. 4203, H.R. 4359, H.R. 4469,

                             AND H.R. 4592

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



                                HEARING

                               before the

                  SUBCOMMITTEE ON ECONOMIC OPPORTUNITY

                                 of the

                     COMMITTEE ON VETERANS' AFFAIRS
                     U.S. HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                           FEBRUARY 25, 2010

                               __________

                           Serial No. 111-64

                               __________

       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
DEBORAH L. HALVORSON, Illinois       BRIAN P. BILBRAY, California
THOMAS S.P. PERRIELLO, Virginia      DOUG LAMBORN, Colorado
HARRY TEAGUE, New Mexico             GUS M. BILIRAKIS, Florida
CIRO D. RODRIGUEZ, Texas             VERN BUCHANAN, Florida
JOE DONNELLY, Indiana                DAVID P. ROE, Tennessee
JERRY McNERNEY, California
ZACHARY T. SPACE, Ohio
TIMOTHY J. WALZ, Minnesota
JOHN H. ADLER, New Jersey
ANN KIRKPATRICK, Arizona
GLENN C. NYE, Virginia

                   Malcom A. Shorter, Staff Director

                                 ______

                  Subcommittee on Economic Opportunity

          STEPHANIE HERSETH SANDLIN, South Dakota, Chairwoman

THOMAS S.P. PERRIELLO, Virginia      JOHN BOOZMAN, Arkansas, Ranking
JOHN H. ADLER, New Jersey            JERRY MORAN, Kansas
ANN KIRKPATRICK, Arizona             GUS M. BILIRAKIS, Florida
HARRY TEAGUE, New Mexico

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

                               __________

                           February 25, 2010

                                                                   Page
Legislative Hearing on H.R. 3257, H.R. 3484, H.R. 3579, H.R. 
  3813,
  H.R. 3948, H.R. 3976, H.R. 4079, H.R. 4203, H.R. 4359, H.R. 
  4469, and H.R. 4592............................................     1

                           OPENING STATEMENTS

Chairwoman Stephanie Herseth Sandlin.............................     1
    Prepared statement of Chairwoman Herseth Sandlin.............    41
Hon. John Boozman, Ranking Republican Member.....................     2
    Prepared statement of Congressman Boozman....................    41
Hon. Harry Teague................................................     3
    Prepared statement of Congressman Teague.....................    42
Hon. Thomas S.P. Perriello.......................................     4

                                 ______

                               WITNESSES

U.S. Department of Defense, Colonel Shawn Shumake, USA, Director, 
  Office of Legal Policy, Office of the Under Secretary of 
  Defense (Personnel and Readiness), Program Integration and 
  Legal Policy...................................................    30
    Prepared statement of Colonel Shumake........................    86
U.S. Department of Veterans Affairs, Keith M. Wilson, Director of 
  Education Service, Veterans Benefits Administration............    32
    Prepared statement of Mr. Wilson.............................    87

                                 ______

American Legion, Robert W. Madden, Assistant Director, National 
  Economic Commission............................................    14
    Prepared statement of Mr. Madden.............................    67
Hall, Hon. John J., a Representative in Congress from the State 
  of New York....................................................     6
    Prepared statement of Congressman Hall.......................    42
Iraq and Afghanistan Veterans of America, Timothy S. Embree, 
  Legislative Associate..........................................    17
    Prepared statement of Mr. Embree.............................    71
National Association of State Approving Agencies, James Bombard, 
  Legislative Director, and Chief, New York Bureau of Veterans 
  Education......................................................    19
    Prepared statement of Mr. Bombard............................    76
Putnam, Hon. Adam H., a Representative in Congress from the State 
  of Florida.....................................................     7
    Prepared statement of Mr. Putnam.............................    43
Sestak, Hon. Joe, a Representative in Congress from the State of 
  Pennsylvania...................................................    10
    Prepared statement of Mr. Sestak.............................    44
Smith, Hon. Adam, a Representative in Congress from the State of 
  Washington.....................................................     8
    Prepared statement of Congressman Smith......................    45
Sullivan, Colonel Mark E., USA (Ret.), Law Offices of Mark E. 
  Sullivan, P.A., Raleigh, NC....................................    21
    Prepared statement of Mr. Sullivan...........................    78
Turner, Hon. Michael R., a Representative in Congress from the 
  State of Ohio..................................................    11
    Prepared statement of Congressman Turner.....................    46
Veterans of Foreign Wars of the United States, Justin Brown, 
  Legislative Associate, National Legislative Service............    16
    Prepared statement of Mr. Brown..............................    69

                       SUBMISSIONS FOR THE RECORD

American Bar Association, Patricia E. Apy, statement.............    90
Bannerman, Stacy, Medford, OR, statement.........................    92
Filner, Hon. Bob, Chairman, Committee on Veterans' Affairs, and a 
  Representative in Congress from the State of California, 
  statement......................................................    94
Klein, Hon. Ron, a Representative in Congress from the State of 
  Florida, statement.............................................    94
National Association of Veterans' Program Administrators, Faith 
  DesLauriers, Legislative Director, statement...................    95
National Military Family Association, statement..................    97
Pennsylvania Association of Private School Administrators, 
  statement......................................................    98
Student Veterans of America, Brian Hawthorne, Legislative 
  Director, letter...............................................    99

                   MATERIAL SUBMITTED FOR THE RECORD

Mark E. Sullivan, Law Offices of Mark E. Sullivan, P.A., Raleigh, 
  NC, to Hon. Stephanie Herseth Sandlin, Chair, Subcommittee on 
  Economic Opportunity, Committee on Veterans' Affairs, letter 
  dated April 8, 2010............................................   101


              LEGISLATIVE HEARING ON H.R. 3257, H.R. 3484,



              H.R. 3579, H.R. 3813, H.R. 3948, H.R. 3976,



              H.R. 4079, H.R. 4203, H.R. 4359, H.R. 4469,



                             AND H.R. 4592

                              ----------                              


                      THURSDAY, FEBRUARY 25, 2010

             U.S. House of Representatives,
                    Committee on Veterans' Affairs,
                      Subcommittee on Economic Opportunity,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:07 p.m., in 
Room 334, Cannon House Office Building, Hon. Stephanie Herseth 
Sandlin [Chairwoman of the Subcommittee] presiding.
    Present: Representatives Herseth Sandlin, Perriello, Adler, 
Teague, Boozman.

        OPENING STATEMENT OF CHAIRWOMAN HERSETH SANDLIN

    Ms. Herseth Sandlin. Good afternoon, ladies and gentlemen. 
The Committee on Veterans' Affairs Subcommittee on Economic 
Opportunity hearing on pending legislation will come to order.
    I would like to call attention to the fact that the 
Honorable Ron Klein of Florida, the National Military Family 
Association, the Pennsylvania Association of Private School 
Administrators, Student Veterans of America, the American Bar 
Association (ABA), and Ms. Stacy Bannerman, a citizen from the 
State of Oregon, have asked to submit written statements for 
the hearing record.
    If there is no objection, I ask for unanimous consent that 
their statements be entered for the record. Hearing no 
objection, so entered.
    [The statements appear in the Submissions for the Record, 
which appear on p. 90.]
    I ask unanimous consent that all Members have 5 legislative 
days to revise and extend their remarks and that written 
statements be made part of the record. Hearing no objection, so 
ordered.
    Today we have a full schedule that includes 11 bills before 
us that would address the unique needs of our veterans 
population. The bills before us today seek to expand existing 
laws to provide certain family members with a leave of absence 
from work when a servicemember is called up for active-duty 
service, to modernize fees payable to institutions of higher 
learning for certifying student veterans, to expand education 
entitlements under title 38, reauthorize existing law to 
prevent the foreclosure of a veteran's home, amend on-the-job 
training (OJT) requirements to encourage businesses to hire 
military veterans in a tough economy, make available housing 
loans to construct or modify energy-efficient homes, to provide 
protections under the Servicemembers Civil Relief Act (SCRA) to 
servicemembers with child custody arrangements, and to create 
energy-related job opportunities for military veterans.
    Included in today's hearing is H.R. 3484, which I 
introduced to reauthorize existing law that affords certain 
student veterans with a work study allowance while they are 
enrolled in school.
    Under the current Work Study Program, veterans who qualify 
for the U.S. Department of Veterans Affairs (VA) Work Study 
Program are limited to working on VA-related work such as 
processing VA paperwork, performing outreach services, and 
assisting staff at VA medical facilities or the Offices of the 
National Cemetery Administration.
    The current Work Study Program is scheduled to expire on 
June 30th, 2010. My legislation would simply reauthorize this 
important program to June 30th, 2014, allowing our student 
veterans to gain valuable skills in an approved work 
environment while completing their studies.
    Providing our student veterans with work study 
opportunities is an issue that I take seriously.
    Earlier this year, the House successfully passed H.R. 1037, 
a ``Pilot College Work Study Programs for Veterans Act of 
2009.'' This legislation includes language to direct the 
Secretary of the U.S. Department of Veterans Affairs to conduct 
a 5-year pilot project on expanding existing work study 
activities for veterans.
    Rest assured, I will continue to push for enactment of this 
important legislation for the remainder of the 111th Congress.
    I look forward to receiving feedback on all of the other 
bills before us today, and I now recognize the distinguished 
Ranking Member, Mr. Boozman, for his opening remarks.
    [The prepared statement of Chairwoman Herseth Sandlin 
appears on p. 41.]

             OPENING STATEMENT OF HON. JOHN BOOZMAN

    Mr. Boozman. Thank you, Madam Chair.
    First of all, I want to thank you for including H.R. 4259, 
the ``Warriors Adapting Residences with Mortgages for Energy 
Renovations Act,'' or for short, the WARMER Act, which I 
introduced with Congressman Walz as an original co-sponsor.
    I introduced the WARMER Act as a result of concerns that 
were expressed by the building industry who pointed out several 
shortcomings in the way VA appraised properties with regards to 
energy-efficient improvements.
    Besides some concerns with PAYGO issues, we really have a 
very good collection of bills to consider today. And I do 
appreciate the Members that have worked so hard again coming up 
with ideas, coming up with solutions to some of the problems 
that we have in regard to veterans' issues.
    I do have a little bit of concern with a couple of the 
bills. First, H.R. 4079, which would waive the requirements 
that an employer increases the wages of veterans who are 
employed as apprentices under the title 38 Apprenticeship 
Program, there is a little bit of concern that H.R. 4079 is 
written without the unintended consequences such as lowering 
the apprentice's total wages over the period of training 
because of the statutory reduction in the VA payment.
    But against that concern, we must balance whether some 
jobs, even one with a declining wage, is better than no job at 
all. So, again, those are the things that we need to discuss 
today. I appreciate the bill's intent and hopefully, working to 
resolve that problem.
    I also have a little bit of concern about H.R. 4592. I 
agree with the intent to put veterans in good-paying jobs. And 
I know Mr. Teague is willing to work. And, again, hopefully we 
can work out a few concerns with that bill.
    Finally, we are also interested in hearing the testimony on 
H.R. 4469. It sounds to me like perhaps there are some 
technical, legal issues that are involved and we are going to 
hear a good collection of witnesses in that regard, including 
our colleague, Mr. Turner. So, again, I appreciate the fact 
that we have so many Members who are willing to step forward 
and come up with some good ideas.
    And, again, I very much support your work study endeavor. I 
was a work study guy and know how important that is.
    And so with that, I yield back.
    [The prepared statement of Congressman Boozman appears on
p. 41.]
    Ms. Herseth Sandlin. Thank you, Mr. Boozman.
    Before we begin with our first panel, I would like to 
recognize the Subcommittee Members with legislation before us 
today. Mr. Teague from New Mexico is one of those Members. So I 
would like to recognize you now, Mr. Teague, to speak on the 
bill that we are considering today.

             OPENING STATEMENT OF HON. HARRY TEAGUE

    Mr. Teague. Thank you.
    Madam Chairwoman and Ranking Member, and fellow 
Subcommittee Members, thank you for allowing me to have the 
opportunity to speak on behalf on H.R. 4592.
    This bill addresses three different issues that are vitally 
important to my district and to our country, energy, veterans, 
and jobs.
    The latest survey of unemployed veterans by the U.S. 
Department of Labor show that the number of unemployed Iraq and 
Afghanistan veterans is now almost the same as the number of 
servicemembers currently deployed in support of those two wars.
    When the unemployment rate hit 9.7 percent last fall, the 
veterans of Iraq and Afghanistan were unemployed at the rate of 
11.3 percent. To combat the problem of unemployment among those 
who served our Nation in uniform, I drafted legislation to get 
energy jobs for veterans.
    Under my bill, those who fought for us abroad would be able 
to continue their work for the security of our country when 
they return home by getting a job, producing our energy right 
here in America.
    Energy independence is one of our Nation's foremost 
security imperatives and there is no one more suitable for or 
capable of filling every energy job in America than our 
veterans.
    The national security and economic security of our Nation 
has been secured in large part by our veterans and it can only 
be maintained by freeing us from foreign energy sources and 
putting our citizens back to work.
    The Energy Jobs For Veterans Act would direct the Secretary 
of Labor to award competitive grants to two States to establish 
the program to provide marketable energy job skills and 
employment experiences and lasting employment and well-paying 
energy jobs to veterans.
    The program would provide to an energy employer up to 50 
percent, not to exceed $20,000, of the salary paid to a veteran 
for a year of apprenticeship and on-the-job training.
    Eligible energy employers are those involved in the energy-
efficient building, construction, and retrofit industries, the 
renewable electric power industry, the biofuels industry, the 
energy efficiency assessment industry, the oil and gas 
industry, and the nuclear industry.
    I hope that my colleagues in this Committee and the House 
would agree that this bill brings together three different 
issues in a way that creates a winning opportunity for our 
country.
    I would like to thank the Chairwoman and Ranking Member 
again for allowing this bill to come forward.
    Also, I would like to thank the staff of the Economic 
Opportunity Subcommittee for their assistance, specifically 
Juan Lara, Javier Martinez, and Orfa Torres.
    I would also like to thank Congressman Perriello for co-
sponsoring this legislation with me.
    Thank you once again, Madam Chair. This concludes my 
statement and I would be happy to answer any questions that my 
fellow Committee Members may have.
    [The prepared statement of Congressman Teague appears on
p. 42.]
    Ms. Herseth Sandlin. Thank you, Mr. Teague.
    Mr. Perriello, before we bring up our colleagues on the 
first panel, I wanted to give you and other Subcommittee 
Members who had bills for the Subcommittee an opportunity to 
speak on your respective bills. So I will now recognize you for 
5 minutes.
    Yes, Mr. Boozman.
    Mr. Boozman. I am sorry. Can I interject? I have got to run 
out in the hall for a second. But in regard to Mr. Teague, I 
just want to note that he is certainly one of our most active 
Members on the Subcommittee and does a tremendous job.
    And we do appreciate you bringing forward your legislation. 
And I know that we on our side are going to look at that and 
work with you to try and see how we can again best put veterans 
to work.
    Mr. Teague. Very good. Thank you. I will be more than glad 
to work with you at any time and explain the particulars. Thank 
you.
    Ms. Herseth Sandlin. Thank you, Mr. Boozman.
    Mr. Perriello.

        OPENING STATEMENT OF HON. THOMAS S.P. PERRIELLO

    Mr. Perriello. Thank you, Madam Chair and Ranking Member 
Boozman, for holding this important hearing. I appreciate the 
opportunity to offer testimony in support of my two bills, H.R. 
4079 and H.R. 3976.
    Today unemployment amongst the Nation's 2.5 million 
veterans is at 15.8 percent or three times that of the general 
population. And for veterans of Iraq and Afghanistan, the rate 
of unemployment is a staggering 11.2 percent.
    These numbers are unacceptable. After fighting on the front 
lines of freedom, this Nation's veterans should not have to 
return home only to bear the heavy burden of unemployment.
    To that end, I am committed to introducing and supporting 
legislation aimed at creating, sustaining, and enhancing 
employment opportunities for our veterans.
    H.R. 4079 would temporarily remove the statutory 
requirement that employers provide a mandatory wage increase 
for veterans enrolled in the Department of Veterans Affairs' 
On-the-Job Training Program.
    Let me be clear. This legislation has only one purpose, to 
put veterans to work.
    A survey recently completed by the National Association of 
State Approving Agencies (NASAA) found that 22 of 30 States 
that are active in the very important OJT Program have 
identified lost approval opportunities for veterans due to the 
wage increase requirement.
    When applying for a job or OJT Program, our veterans should 
stand on equal, if not greater footing with those in the 
civilian workforce. But in today's economic climate, well-
qualified veterans who seek employment with private employers 
through the VA's OJT Program find themselves at a competitive 
disadvantage due to the requirement that employers commit to 
providing a mandatory wage increase as a condition of program 
participation.
    It is important to note that H.R. 4079 is only temporary 
and is scheduled to sunset. Moreover, existing law prevents 
employers from paying veteran employees a lesser wage than 
similarly qualified civilian employees.
    H.R. 4079 is supported by the Chairman of the House Armed 
Services Committee, Ike Skelton, the Veterans of Foreign Wars 
(VFW), and the National Association of State Approving 
Agencies.
    And while I have given strong consideration to concerns 
raised by the American Legion and the Iraq and Afghanistan 
Veterans of America (IAVA), I am not convinced that these 
concerns are sufficient to overcome the immediate concerns 
raised by the unprecedented level of unemployment experienced 
by this Nation's veterans.
    The OJT Program provides an invaluable source of employment 
and training and I am committed to ensuring that the program 
remains a viable option for all eligible veterans.
    I am also open to the idea that with the return of stronger 
economic times, we should certainly restore the core meaning of 
the bill, which is not only to provide great economic 
opportunities for our veterans but make sure that those 
employers are treating and compensating those veterans in the 
maximum way possible.
    H.R. 3976, the ``Helping Heroes Keep Their Homes Act,'' 
would amend the Housing and Economic Recovery Act of 2008 to 
extend through December 21, 2015, protections for 
servicemembers relating to mortgage and mortgage foreclosure. 
This common-sense bill will continue to ensure that our men and 
women in uniform receive a fair deal on home loans and provide 
them adequate time to deal responsibly with possible 
foreclosure.
    I strongly support the bill and I thank the veterans 
service organizations (VSOs) assembled for their support. And, 
again, I thank the Chairwoman for her leadership and her 
support on these efforts.
    Ms. Herseth Sandlin. Thank you, both Mr. Perriello, and Mr. 
Teague, for the bills that you have introduced, other bills 
that we have been able to move through our Subcommittee which 
both of you have been original sponsors or co-sponsors. We 
appreciate your hard work, that of your offices and your level 
of activity on our Subcommittee on a variety of different 
issues related to veterans' education and employment issues.
    We will now move to our first panel. Joining us to speak on 
their respective bills are the Chairman of the full Committee 
on Veterans' Affairs, the Honorable Bob Filner of California; 
the Chairman of the Subcommittee on Disability Assistance and 
Memorial Affairs, the Honorable John Hall of New York; the 
Honorable Adam Putnam of Florida; the Honorable Joe Sestak of 
Pennsylvania; the Honorable Adam Smith of Washington; and the 
Honorable Michael Turner of Ohio.
    Gentlemen, welcome to the Subcommittee. We are pleased you 
are here. All of your written statements will be entered into 
the hearing record, we will recognize you in the order as I 
introduced you in the absence of Mr. Filner.
    Mr. Hall, I appreciate your leadership on the Subcommittee 
and the bill that you have introduced that we are considering 
today. You are now recognized.

 STATEMENTS OF HON. JOHN J. HALL, A REPRESENTATIVE IN CONGRESS 
      FROM THE STATE OF NEW YORK; HON. ADAM H. PUTNAM, A 
REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA; HON. JOE 
    SESTAK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF 
  PENNSYLVANIA; HON. ADAM SMITH, A REPRESENTATIVE IN CONGRESS 
  FROM THE STATE OF WASHINGTON; AND HON. MICHAEL R. TURNER, A 
       REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO

                 STATEMENT OF HON. JOHN J. HALL

    Mr. Hall. Thank you, Madam Chair and Members of the 
Committee, Ranking Member Boozman, who I saw in the hall. I 
miss being on this Committee and I greatly appreciate the work 
that you do here.
    I am here today to speak to you about my bill, H.R. 4203, 
which would require the Department of Veterans Affairs to pay 
GI benefits to student veterans by direct deposit into their 
bank accounts.
    Recently too many student veterans have been left waiting 
for GI Bill educational benefits that they have applied for but 
have not yet received. The VA has authorized checks for those 
students, but they are required to travel to one of the VA's 
regional benefit offices with a photo ID, a course schedule, 
and an eligibility certificate before they can receive their 
benefits. In many cases, this is a time-consuming, expenses, 
and unnecessary burden.
    In my district, for instance, in the Hudson Valley, 
veterans are required to travel to lower Manhattan to collect 
emergency education benefits. For an Orange County Community 
College student traveling from Middletown, the round trip cost 
to pick up their checks would be $35 and the trip would be more 
than 4.5 hours. For a Marist College student traveling from 
Poughkeepsie, the round trip cost would be more than $45 and 
the trip would be 4 hours and 15 minutes.
    The New York Regional Benefit Office is only open from 8:30 
a.m. to 4:00 p.m. Monday through Friday, school days. Getting 
to lower Manhattan during the hours that the VA's office is 
open would mean skipping work or class. Requiring veterans to 
travel from their homes to a Regional Office to receive their 
benefit is an onerous and unnecessary burden.
    The fastest method, of course, would be to deliver this 
stipend via direct deposit the same way, by the way, that all 
other Veterans Benefits Administration (VBA) benefits are 
distributed. Eligible veterans receive their benefits all the 
time by direct deposit, so we are only asking for the same 
thing to be done with educational benefits. If necessary, the 
VBA could require that the veteran fax in the appropriate 
documentation allowing their funds to be released.
    The current process is an unnecessary hassle and delay. We 
should do everything possible to help our vets get the 
education they need to succeed after they have served our 
country so honorably.
    So in closing, I appreciate your consideration of this bill 
and I ask for your support to ensure that our student veterans 
are able to receive the benefits that they have earned and 
deserve in a timely and painless fashion.
    I look forward to answering any questions you might have 
and thank you again for allowing me to testify about this bill.
    [The prepared statement of Congressman Hall appears on p. 
42.]
    Ms. Herseth Sandlin. Thank you, Chairman Hall.
    Mr. Putnam, you are now recognized.

                STATEMENT OF HON. ADAM H. PUTNAM

    Mr. Putnam. Thank you, Madam Chairwoman.
    I understand there may be another meeting going on in this 
town at the other end of Pennsylvania Avenue, so I appreciate 
you all skipping that one to be here with us as we look for new 
and improved ways to help our Nation's veterans.
    It is a pleasure to have the opportunity to give this 
testimony today on behalf of our Test Prep for Heroes Act. It 
is a bipartisan bill that we have introduced with my colleague 
from Florida, Mr. Klein, and 27 other co-sponsors, including 
Mr. Teague, and we are grateful for your support, and Mr. 
Boozman.
    In crafting this, we understand that it is--we certainly 
understand the important role that Congress has in meeting the 
needs of those who have so bravely served our Nation. And while 
we acknowledge that this is a modest proposal, I do believe 
that the Test Prep for Heroes Act does provide an important 
benefit to those men and women in uniform who return home with 
dreams of attending college, law school, med school, and other 
advanced educational objectives that inevitably end up accruing 
to the benefit of our economy and our Nation.
    Under current law through the Post-9/11 GI Bill, they are 
entitled to a reimbursement of up to $2,000 for the cost of 
licensing and certification tests, but it does not provide 
reimbursement for prep classes that are often needed to help 
you pass those exams.
    So this bill would simply allow the $2,000 that is already 
allowable under the law to be used for one test and one prep 
course. We did not change the overall funds available to each 
veteran, but simply allow them to be reimbursed for those 
preparatory classes to help cover subject matter that they may 
not have been exposed to for a number of years.
    As we all know, a lot of these tests are geared towards 
someone who may have just come straight out of school and if 
there is a time gap, if they did serve in one of the services, 
a lot of the more academic subjects have gotten a little rusty 
to them and preparatory classes are necessary and helpful.
    It is important to note that the Montgomery GI Bill does 
allow for the reimbursement of $2,000 for prep courses and 
tests, so this would help provide the veterans returning home 
now with the same benefit available to those who served before 
them.
    Madam Chair, a veteran who served in Iraq or Afghanistan 
has the ability to be reimbursed for the cost of an SAT if he 
or she is wanting to attend college. As you know, the costs of 
those tests are minimal. It is the cost of these preparatory 
courses, a comprehensive approach to better understanding that 
material that has not been covered for a number of years that 
is out of reach for many of our young veterans.
    So Congressman Klein and I introduced this legislation to 
provide our young veterans with the best possible tools to be 
successful. We are not asking for an additional allocation or 
even a substantial change in the law, just that we better equip 
these young men and women by providing them access to courses 
that will help them achieve better results in their dreams to 
receive a higher education.
    Again, I appreciate your work and your devotion to our 
Nation's men and women in uniform and thank you for the 
opportunity to testify today.
    [The prepared statement of Congressman Putnam appears on
p. 43.]
    Ms. Herseth Sandlin. Thank you, Mr. Putnam.
    Mr. Smith, you are now recognized.

                  STATEMENT OF HON. ADAM SMITH

    Mr. Smith. Thank you, Madam Chair. I appreciate the 
opportunity to come and testify before this Committee.
    The bill that you have before you is the Military Family 
Leave Act of 2009. It attempts to give the family members of 
our troops who are deployed some of the same benefits that are 
received under the Family Leave Act more broadly available to 
all workers.
    We have made efforts to do this in the past. There was a 
bill passed in 2008 to attempt to expand some of the Family 
Medical Leave Act provisions to members of the service and 
their families. At that time, the bill focused on different 
circumstances that would give rise to being allowed to have 
family medical leave because in many of the circumstances that 
are traditionally thought of, which you are given family 
medical leave for, which would be having a child, adopting a 
child, major illness in the family.
    That was not necessarily the circumstances that would apply 
in the case of the military families. In their case, they are 
being deployed. They are trying to deal with that or if they 
come back wounded and have to deal with that as well. That 
helped in some regards.
    Unfortunately, that bill is limited to the already 
qualifying aspects of the Family Medical Leave Act. You have to 
work for the same employer for over a year, for instance. There 
are various other requirements in there that do not always fit 
for the members of the military. It has to be an employer with 
more than 50 employees.
    So in many instances, the family members of our military 
families were not eligible for those benefits. They move 
frequently. They might not have been on the job for 12 months. 
They may work for a smaller employer than 50 minimum employees 
and they may not have had the sufficient number of hours. I 
think it is 1,200 hours that you have to put in each year.
    So what this bill would do is it would give 2 weeks of 
family medical leave to any spouse, child, or parent of a 
deployed member of the military or any member of the military 
coming back who is injured and needs care. So it would apply 
across the board to any job that a member of the military's 
family has to give them that benefit.
    This is all part of the broader effort. And I want to 
commend this Committee. In just listening to the legislation 
today, this Committee is doing a fantastic job of trying to 
understand and help military families with the specific and 
peculiar needs that will come up when you are deployed and 
deployed as often as so many members of the military have been 
since 9/11.
    It is a complex problem and the needs of the families crop 
up in ways that surprise us as policymakers, but this Committee 
has been consistently responsive to update the law, to try to 
do everything we can to help our military families and give 
them the support they need. It is a supreme sacrifice that is 
made not just by those who serve but by their families.
    Imagine if your spouse or son or daughter was just all of a 
sudden going away for a year and everything that would have to 
be done to make that work. It is very difficult. We need to be 
as responsive as possible to meeting those needs. I think this 
bill helps by giving the families of our military 
servicemembers the 2 weeks of leave regardless of their 
circumstances in addition to the other family medical leave 
that they might qualify for under existing law.
    So I would urge the Committee to support this. And, again, 
I applaud all of your efforts to support those who served in 
the military and every little bit as importantly their 
families. Thank you for the chance.
    [The prepared statement of Congressman Smith appears on
p. 45.]
    Ms. Herseth Sandlin. Thank you, Mr. Smith. Thank you for 
your comments regarding the work of our Subcommittee and the 
variety of issues that come before our jurisdiction.
    Again, I appreciate all of the bills that each of our 
witnesses on this panel have introduced. These are important in 
so many different respects, as a more holistic approach not 
only to our servicemembers, but their families, active-duty and 
veteran status.
    Mr. Sestak, you are now recognized.

                  STATEMENT OF HON. JOE SESTAK

    Mr. Sestak. Thank you, Madam Chair.
    I wanted to speak about the GI Bill and one aspect of it 
that used to be in the Montgomery Bill, which my fellow 
colleague spoke about in a different area, but it is not in the 
GI Bill, and that is that those who desire as they get out of 
the military not to pursue a 2- or 4-year college degree, post-
secondary education, but rather to have a certification, 
perhaps a trade from an apprentice school or from a vocational 
tech school, that they cannot use their GI benefits for that.
    I think this is an area that can readily be fixed and I 
think it would be quite helpful.
    When I joined up in the military during the Vietnam era, my 
very first job was to help the electricians, the machinist's 
mates, the lathe operators, the interior communication men. And 
these were the artisans, the ones that really made a go of it 
on the ship.
    These are the same types of individuals that sometimes get 
out and just want the next step up in their certification, not 
necessarily a whole 2-year degree, in order to have that 
certification to go down to the local Philadelphia Naval 
Shipyard, now Aker Shipyard, and get a job.
    I bring that out because I spent Veterans Day, this last 
Veterans Day in a prison. It was, harkening back to my sailor 
days, it was--I wanted to visit the vets that were in prison 
and served our Nation, but very few members go in to visit 
them. And one-third of all our vets, actually 47 percent in 
Pennsylvania are there because of a substance abuse issue that 
has landed them in prison. And this is a medium-size 
correctional facility.
    Many of these individuals will now get out, but they just 
need a trade, not necessarily a 2 year. And this included vets 
that have come home that I visited from these wars that are 
ongoing today.
    Just down the road about 4 or 5 miles away is the former 
Philadelphia Naval Shipyard where they are importing from 
outside of Pennsylvania and have for 3 years 180 welders. When 
I helped welders in the Navy, you flipped your helmet, you lit 
the arc, and you laid the bead.
    Today for those who have gone to see how welders do their 
job, you literally have to sit at a computer, have a higher 
level of science and math in order to construct the bead and 
the sophisticated welded needed to be done down at this 
shipyard. And these are the kinds of individuals that could 
just go 5 miles down if they were able to get that 
certification.
    So I would ask the Committee in all the great work it is 
doing to think about a simple fix for these types of often 
young enlisted men and women that are transitioning out and 
really do not want to go to a 2 year. I mean, it could be our 
cooks in the military that just want the next baker type of 
certification to go into a New York City restaurant and say I 
have got this certification.
    And so I would appreciate the consideration of this for my 
fellow vets. And I very much thank you for your time.
    [The prepared statement of Congressman Sestak appears on
p. 44.]
    Ms. Herseth Sandlin. Thank you, Mr. Sestak, for your 
testimony on Mr. Putnam's and Mr. Hall's bills, which focus on 
the Post-9/11 GI Bill, common-sense changes that many of our 
colleagues are proposing to make it work better for more 
veterans returning home. I certainly appreciate your unique 
perspective from your years in the military. We thank you for 
that.
    Mr. Turner, you are now recognized.

              STATEMENT OF HON. MICHAEL R. TURNER

    Mr. Turner. Thank you, Chairwoman Herseth Sandlin and 
Chairman Boozman.
    As a former Member of the Committee, I certainly am aware 
of your great leadership on the issue of veterans and I thank 
both of you for your service and dedication. And I also 
appreciate your consideration of this important bill, H.R. 
4469.
    H.R. 4469 will amend the Servicemembers Civil Relief Act to 
protect the custody arrangements of servicemembers during their 
deployment as well as prohibit the use of deployment as a 
factor in determining the best interest of a child in custody 
cases.
    Madam Chair, the stories are too clear and all too 
frequent. A servicemember, many times a single mom, is called 
to serve her country and is given a short time to wind down her 
personal business and deploy. She makes temporary custody 
arrangements for her children, usually with her ex-spouse, 
sometimes in the form of a nonbinding family care plan. Then 
upon return from deployment and she goes to pick up her child 
finds that the ex-spouse will not relinquish custody without a 
court order.
    Sometimes the story is even worse. A servicemember in 
fighting for custody in court has their custody rights 
terminated by a judge simply because of deployment or even the 
possibility of deployment. Deployed parents serving our country 
in places like Afghanistan or Iraq need protections from courts 
disrupting these established family arrangements.
    We cannot have one branch of government asking American men 
and women to serve while another branch of government punishes 
them for their service. In the absence of consistent guidance, 
some States have become aware of this issue and some have taken 
action.
    In 2005, the State of Michigan passed a law to provide 
protection provisions to military personnel similar to the 
language introduced in this bill. I commend those states who 
have taken action on this issue.
    However, almost half of all States have not passed 
protections for military parents and for States that have, 
their protections vary even if they exist at all. A national 
standard is required.
    This is why I have introduced H.R. 4469 to amend the SCRA 
to provide custody protections for military parents.
    Madam Chair, our men and women serve in a Federal military 
that is regulated by the Federal Government. Now, these men and 
women sometimes reside in one State but are stationed in 
another State, have a marriage license from one State and are 
divorced in another. Disputing custody arrangements should not 
be an opportunity to shop for the best forum to take a child 
away from a military parent.
    H.R. 4469 has passed the House on four separate occasions, 
three times as part of the National Defense Authorization Act 
(NDAA) and once as a stand-alone bill.
    As a stand-alone bill, this legislation was passed by 
virtue of a voice vote on suspension with support from the 
Chairman of this Committee. Additionally, every single member 
of the House Armed Services Committee, both Democrat and 
Republican, have expressed their support of this legislation.
    Through the years, I have tried to resolve any concerns 
with the legislation and have inserted language that prohibits 
a Federal right of action for custody cases and expressly allow 
States to create an even higher standard of protection for 
servicemembers.
    Much is asked of our servicemembers and mobilization can 
disrupt and strain relationships at home. The basic protection 
is needed to provide them peace of mind that the courts will 
not undermine judicial proceedings concerning their established 
custody rights while they are serving valiantly in contingency 
operations.
    Every one of these stories is one too many and it is 
justification for taking action. A parent's service to their 
country should not be used as a weapon against them. This 
amendment protects them and protects their children.
    Again, I want to thank our Chair and Ranking Member. And 
with your consent, I would like to introduce into the record 
support letters that we have when the bill has previously moved 
through House and also a Law Review article that goes through 
issues that I think most affect the subject matter of this 
bill.
    Ms. Herseth Sandlin. Hearing no objection, so entered.
    Mr. Turner. Thank you.
    [The prepared statement and attachments of Congressman 
Turner appear on p. 46. Some of the attachments are being 
retained in the Committee files.]
    Ms. Herseth Sandlin. Thank you, Mr. Turner.
    Well, I thank each of you for your testimony.
    I would recognize the Ranking Member and any of my other 
colleagues on the Subcommittee for any questions they may have 
of our colleagues on this first panel.
    Mr. Boozman.
    Mr. Boozman. I do not have any questions. Again, I 
appreciate you guys. These are all very, very good ideas and 
something that we will take to heart and be working with you as 
we go forward.
    I want to thank you, Congressman Sestak. You helped me with 
the sub vets thing earlier in the year where we honored the 
World War II submarine vets. And I cannot tell you what that--
well, you know what it meant to them. It was the first time it 
had ever been done.
    And the way it came about, I had a group in Arkansas that 
were decommissioning a group because they literally were 
getting too old to attend the meetings anymore. And so it was a 
very, very nice thing and we do appreciate your help in that 
regard.
    But thanks to all of you for your hard work for veterans.
    Ms. Herseth Sandlin. Any other questions for our 
colleagues?
    [No response.]
    Ms. Herseth Sandlin. Thank you for the commitment each of 
you have demonstrated not only in your testimony on the bills 
that you have introduced today but time and again during your 
service in Congress.
    Mr. Putnam, we will miss you as you seek to head back to 
the State of Florida full time. Thank you again for being here, 
for your work during your time here in the Congress, and to 
each of you for your dedication on behalf of our Nation's 
veterans and, again, your recognition of the work of the 
Subcommittee.
    We are very proud of the work of this Subcommittee and it 
is always nice to have these legislative hearings where we can 
hear directly from our colleagues who have introduced such 
important bills. We look forward to working with each of you 
based on the recommendations we hear from subsequent panels to 
move the bills forward. Thank you.
    We would now like to invite panel two to the witness table. 
Joining us on our second panel of witnesses is Mr. Robert 
Madden, Assistant Director of the National Economic Commission 
for the American Legion; Mr. Justin Brown, Legislative 
Associate for Veterans of Foreign Wars (VFW); Mr. Timothy 
Embree, Legislative Associate for the Iraq and Afghanistan 
Veterans of America (IAVA); Mr. James Bombard, Legislative 
Director for the National Association of State Approving 
Agencies; and Mr. Mark Sullivan of the Law Offices of Mark 
Sullivan.
    In the interest of time and courtesy to all of our 
panelists here today, we ask that you limit your testimony to 5 
minutes focusing on your comments and recommendations. Your 
entire written statement has been entered into the Committee 
record.
    I also ask for unanimous consent that Congressman Turner, a 
former Member of the Committee as you all know, be permitted to 
participate in this hearing. Hearing no objection, so ordered.
    Mr. Madden, we will begin with you. Welcome back to the 
Subcommittee and you are now recognized.

 STATEMENTS OF ROBERT W. MADDEN, ASSISTANT DIRECTOR, NATIONAL 
ECONOMIC COMMISSION, AMERICAN LEGION; JUSTIN BROWN, LEGISLATIVE 
 ASSOCIATE, NATIONAL LEGISLATIVE SERVICE, VETERANS OF FOREIGN 
   WARS OF THE UNITED STATES; TIMOTHY S. EMBREE, LEGISLATIVE 
  ASSOCIATE, IRAQ AND AFGHANISTAN VETERANS OF AMERICA; JAMES 
 BOMBARD, LEGISLATIVE DIRECTOR, NATIONAL ASSOCIATION OF STATE 
  APPROVING AGENCIES, AND CHIEF, NEW YORK BUREAU OF VETERANS 
   EDUCATION; ACCOMPANIED BY CHAD C. SCHATZ, VICE PRESIDENT, 
NATIONAL ASSOCIATION OF STATE APPROVING AGENCIES, AND DIRECTOR, 
 VETERANS' EDUCATION AND TRAINING SECTION, MISSOURI DEPARTMENT 
  OF ELEMENTARY AND SECONDARY EDUCATION; AND COLONEL MARK E. 
 SULLIVAN, USA (RET.), LAW OFFICES OF MARK E. SULLIVAN, P.A., 
                          RALEIGH, NC

                 STATEMENT OF ROBERT W. MADDEN

    Mr. Madden. Thank you very much.
    Good afternoon, Madam Chairwoman and Members of the 
Subcommittee. The American Legion appreciates the opportunity 
to present our views on the bills being considered by the 
Subcommittee today. We have provided written testimony 
addressing all 10 bills, but my oral remarks this afternoon 
will be limited to H.R. 3948, H.R. 3813, and H.R. 3976.
    The American Legion believes that all aspects of education 
should be included under the Post-9/11 GI Bill to include 
preparatory classes for higher education. In other words, if a 
student has completed their undergraduate education and has 
considered getting their MBA, then the Post-9/11 GI Bill should 
assist in paying for a preparatory class for the graduate 
management admission test or GMAT.
    The American Legion understands that these classes are 
expensive, but they are part of student education and should, 
therefore, be covered under the Post-9/11 GI Bill. Getting 
prepared for higher education or graduate school is a very 
important part of the educational process and this bill seeks 
to remedy and defer the cost of the classes from the student to 
educational costs covered by the Post-9/11 GI Bill.
    Staying competitive in the education arena is very 
important and these classes have proven to increase the chances 
of a student veteran being accepted into a certain educational 
program due to their hard work and diligence in taking a 
preparatory class. These classes are expensive and as a 
student, most veterans cannot afford the initial cost of these 
classes. By adding this benefit, veterans are more likely to be 
successful in the preparatory test and, therefore, have a 
better chance of being a success in life.
    The American Legion has also been a vocal proponent for 
making changes to the Post-9/11 GI Bill. The American Legion 
has recommended that the current law be amended to allow 
nondegree-granting institutions to receive Post-9/11 GI Bill 
benefits. This would include vocational, correspondence, on-
the-job training, and flight training courses that are not 
given at an institute of higher learning.
    Although the Post-9/11 GI Bill has given a new generation 
of military members a new way to succeed in life with education 
and employment, it has left some disparities in the educational 
and employment path that veterans may choose. Nondegree-
granting institutions such as vocational schools provide job 
placement upon graduation as the graduate has a specific skill 
set is readily employed.
    This bill would reestablish the definition of an education 
path and allow those veterans who attend institutions such as 
vocational schools to receive the highest in-state tuition, the 
housing allowance and book stipend as well.
    Currently those veterans who seek education through 
vocational schools are denied the housing allowance and book 
stipend and they only receive a fraction of what their tuition 
costs are. This change will allow those veterans who are 
looking to choose a more traditional path to employment the 
opportunity to finish school and become gainfully employed in a 
quicker amount of time.
    Not all veterans attend college and they are searching for 
other means of employment which include the above-mentioned 
means of education. They may have families and are looking to 
become employed as soon as possible in order to properly care 
for themselves and their families.
    The American Legion believes this bill would remedy the 
disparities between those individuals who are attending an 
institute of higher learning and those who choose education 
through a vocational, correspondence, on-the-job training, or a 
flight training program through a nondegree-granting 
institution.
    The American Legion believes it is the veteran who has the 
right to choose what his education and employment path should 
be, not limited only to attending the bricks and mortars, 
degree-granting college or university in order to receive the 
full Post-9/11 GI Bill benefits.
    The American Legion supports efforts to enhance benefits 
received by servicemembers to retain their home during any 
housing crisis. Servicemembers serve multiple deployments to 
combat zones and should be afforded the relief in order to stay 
in their current homes where they and their families reside.
    In order to maintain quality of life while deployed, it is 
imperative for servicemembers and their families to be afforded 
all opportunities to continue their way of life and in their 
current residence. Servicemembers and their families have 
sacrificed enough and should not be forced to undergo the 
additional stress of possible foreclosure to their home.
    The American Legion fully supports H.R. 3976.
    In closing, the American Legion has 2.5 million members. 
Our ardent support is to provide education benefits for 
individuals who are attending nondegree-granting institutions. 
This will grant veterans who seek other means of employment the 
same benefits that the Post-9/11 GI Bill benefits afford 
student veterans.
    Secondly, veterans are also due the benefit of being 
properly prepared for all aspects of employment, including 
going back to school, apprenticeship and preparatory classes 
for those veterans who are seeking alternate means of 
employment. The American Legion supports granting these 
veterans the chance to gain success in the choice of education 
and employment paths.
    Thirdly, the American Legion supports granting 
servicemembers and their families the choice to stay in their 
current home and to avoid foreclosure. In order to keep a 
cohesive family environment, it is important to keep a family 
in their home during stateside duty or during an active 
deployment.
    This concludes my statement, Madam Chairwoman. I would be 
happy to answer any questions you or any Members of the 
Subcommittee may have.
    [The prepared statement of Mr. Madden appears on p. 67.]
    Ms. Herseth Sandlin. Thank you, Mr. Madden.
    Mr. Brown, you are now recognized.

                   STATEMENT OF JUSTIN BROWN

    Mr. Brown. Thank you, Madam Chairwoman.
    Madam Chairwoman, Ranking Member Boozman, and Members of 
the Subcommittee, on behalf of the 2.1 million members of the 
Veterans of Foreign Wars and our auxiliaries, I would like to 
thank this Committee for the opportunity to testify. The issues 
under consideration today are of great importance to our 
members and to the entire veteran population.
    For America's newest veterans, the likelihood of 
unemployment continues to rise. In January 2009, 100,000 
Operation Enduring Freedom/Operation Iraqi Freedom (OEF/OIF) 
veterans were unemployed. Today there are roughly 213,000 
unemployed OEF/OIF veterans in the United States with an 
unemployment of 12.6 percent.
    Yesterday the U.S. Senate approved a jobs measure. Despite 
having more than 1,100,000 unemployed veterans, the 60 page 
package failed to mention veteran or veterans once.
    The VFW finds it unconscionable that America's veterans who 
have left their families, risked their life and limbs, and left 
civilian career pursuits behind to answer the Nation's call do 
not have the attention of Congress for this important matter.
    Unemployment impacts all Americans, but America's newest 
veterans face multiple disadvantages in returning to employment 
after their service. They are returning to an economy that 
offers few employment prospects while also potentially dealing 
with physical and mental disabilities, a lack of experience 
with interviews and resume writing and a lack of local networks 
and contacts that so many civilians enjoy. We must do more. And 
currently Congress has the opportunity to help alleviate the 
situation.
    There are more unemployed Iraq and Afghanistan veterans 
than there are servicemembers fighting in those wars and they 
are being passed over in this jobs package. The VFW asks that 
this Committee insist that the jobs package be amended to 
include provisions to help America's heroes find employment and 
we have three suggestions for inclusion.
    First, increase and expand the work opportunity tax credit. 
Currently the credit applies to veterans who separated within 
the past 5 years and pays $2,400 for hiring a nondisabled 
veteran and $4,800 for hiring a veteran with a disability. 
Double it.
    Also, the majority of unemployed veterans do not fit this 
criterion and OEF/OIF veterans that separated before February 
25th, 2005, are also excluded. We ask that you extend 
eligibility at minimum to September 11th, 2001.
    Last, the credit requires a veteran to be unemployed for 4 
weeks before becoming eligible. This arbitrary requirement 
should be removed.
    Second, modernize the Vocational Rehabilitation and 
Employment (VR&E) Program. In 2009, VR&E served more than 
32,000 disabled veterans by training, educating, and assisting 
them in finding gainful employment. Improve this program's 
effectiveness by providing higher education stipends on par 
with the Post-9/11 GI Bill, eliminate the arbitrary delimiting 
date for usage of the program, and provide additional family 
services such as child care to these veterans.
    Last, increase opportunities for veteran business owners 
and veterans interested in starting a business. For veterans to 
be a vital component of America's recovery, we need small 
business training and education. We need access to capital and 
we need compliance with existing laws and statutes. To do 
anything less will be a missed opportunity for our veterans 
and, more importantly, for the well-being of our country.
    Yesterday at a business roundtable, President Obama stated 
that the jobs bill now working through Congress is designed to 
be targeted and temporary. We hope to see the jobs bill 
temporarily target America's veterans who are at high risk of 
unemployment. After serving two or three deployments in many 
cases, meaningful employment in the country they fought to 
defend is the least we can provide our veterans.
    We have submitted our views on the bills in question, Madam 
Chairwoman. This concludes my testimony and I will be pleased 
to respond to any questions you or the Members of this 
Subcommittee may have. Thank you.
    [The prepared statement of Mr. Brown appears on p. 69.]
    Ms. Herseth Sandlin. Thank you very much, Mr. Brown.
    Mr. Embree, you are now recognized.

                 STATEMENT OF TIMOTHY S. EMBREE

    Mr. Embree. Madam Chairwoman, Ranking Member, and Members 
of the Subcommittee, on behalf of Iraq and Afghanistan Veterans 
of America's 180,000 members and supporters, I would like to 
thank you for the opportunity to testify before your Committee 
today.
    As a special note, I am new to the IAVA team and to 
Washington, DC. This is my first appearance in front of the 
Subcommittee and, in fact, my first Congressional testimony. I 
am honored to be here.
    My name is Tim Embree and I served two combat tours in the 
United States Marine Corps Reserve in Iraq. During my time in 
uniform, I saw many fellow deployed Marines struggle with 
strained family relationships and wrestle with the transition 
from military life back to civilian life.
    I remember coming back to the FOB, heading over to the 
phone tent to wait hours in line to call home. There was no 
privacy. And while waiting, I would often hear heart-wrenching 
conversations throughout the tent. I would watch men cry, 
begging their wife not to leave them. I would see the anguish 
on a Marine's face talking to her young child, her knowing that 
the kid is confused because they do not recognize their 
mother's voice.
    I did not like going to the phone tent, not because I did 
not want to call my family and tell them I was okay, but 
because I could not stand seeing all the horrible stories play 
out in front of me. The Marines in that phone tent need to be 
focused on their mission, but too often were worried about a 
mortgage payment back home or a failing marriage.
    Much of the legislation being considered today will 
profoundly affect veterans of Iraq and Afghanistan and their 
families. These bills will help the folks in the phone tent, 
and I appreciate this opportunity to offer our feedback.
    IAVA supports the Military Family Leave Act, H.R. 3257. 
Imagine having the chance to see your husband, wife, son, or 
daughter for only 2 weeks every year and then working the 8-
hour day shift when they are home. When you are deployed, the 
little time you see your family is more valuable than gold. We 
want to spend every waking moment with our families. It is hard 
enough to say goodbye after such a short period of time, but it 
is tragic to deny families a single hour during those 2 short 
weeks.
    This bill will also help the spouse left at home who must 
fill the role of both mom and dad, find the time for all the 
unexpected tasks, errands, and responsibilities that come up 
during a deployment.
    IAVA also sees an opportunity to care for our men and women 
in uniform by supporting H.R. 4469, amending the Servicemembers 
Civil Relief Act. We constantly receive letters from veterans 
telling us that their service deployments are being used 
against them in child custody disputes. By protecting deployed 
parents, we will help ensure servicemembers are focused on the 
mission at hand and not whether their service will come between 
them and their child.
    We are pleased that this Committee is working on a broad 
spectrum of issues from servicemembers and their families to 
upgrading the wildly popular Post-9/11 GI Bill.
    The Post-9/11 GI Bill has helped so many veterans and their 
families, but there is still more to be done. For that reason, 
IAVA enthusiastically supports H.R. 3813, also known as the 
Veterans Training Act.
    It is unfair and confusing that a veteran is reimbursed 
under the Post-9/11 GI Bill for studying to be an emergency 
medical technician (EMT) at their local community college, but 
they cannot take the same courses at a vocational school.
    The other day, I received an e-mail from Daniel in Nevada 
about this very issue. Daniel is an OIF vet and wants to train 
to become an EMT at the National College of Technical 
Instruction. Without this change to the Post-9/11 GI Bill, 
Daniel cannot afford to go to school to become an EMT.
    IAVA believes veterans like Daniel must have the 
opportunity to return to public service in their community. We 
know that veterans are always looking for opportunities to 
continue their service, so much so that student veterans assist 
their school certifying officials processing GI Bill paperwork 
and mentoring other veterans. Therefore, IAVA proudly supports 
H.R. 3484 to reauthorize the VA Work Study Allowance Program 
for another 4 years.
    The Post-9/11 GI Bill is so important to our transitioning 
veterans. Therefore, we also support H.R. 3948, otherwise known 
as the Test Prep for Heroes Act.
    Currently veterans can use the Post-9/11 GI Bill to cover 
the cost of a single licensing or certification test up to 
$2,000, but must pay out of pocket for their prep course. And 
we know these prep courses do make a difference. It would 
irresponsible to show up to take the bar without taking a prep 
course. We need to further improve this benefit by not 
penalizing veterans whose career path requires multiple 
certification tests.
    For example, a future mechanic is currently only reimbursed 
for one of their many needed certifications which can cost 
around $25 each while an aspiring attorney could receive full 
reimbursement for their one bar exam which can cost upwards of 
$1,200. Including multiple licensing and certification tests 
will level the playing field and provide a more equitable 
benefit for veterans.
    Our men and women are still in the phone tents and 
dangerous places around the world with more responsibility and 
stress weighing on their shoulders than most people will ever 
understand, the weight of war, the weight of what is waiting 
when they come. We must pass these important bills to help 
these men and women and their families.
    I appreciate this opportunity to speak to you today and 
welcome any questions you may have. Please remember I am a 
Marine, great at land navigation and weapons systems, but I do 
struggle with big words and long questions. So thank you very 
much for your time today.
    [The prepared statement of Mr. Embree appears on p. 71.]
    Ms. Herseth Sandlin. Thank you for your testimony, Mr. 
Embree.
    Mr. Bombard, you are now recognized. I want to acknowledge 
I know that you are accompanied by Mr. Chad Schatz from the 
State of Missouri's Department of Elementary and Secondary 
Education and may direct some of the questions to Mr. Schatz. 
You are now recognized for your opening statement.

                   STATEMENT OF JAMES BOMBARD

    Mr. Bombard. Thank you, Madam Chair, Ranking Member 
Boozman, Members of the Committee, for providing this 
opportunity for the National Association of State Approving 
Agencies to present to your Committee.
    The National Association of State Approving Agencies has 
provided input and supports the following bills:
    H.R. 3813 would expand the Post-9/11 GI Bill to include 
approved programs offered at noncollege-degree educational 
institutions. On returning to civilian life, many 
servicemembers are interested in hitting the ground running. 
Short-term certificate and diploma programs can be a critical 
part of their successful transition.
    Programs such as truck driving, policeman, policewoman, 
firefighting academies, aviation maintenance people, 
cosmetologists, barbers, construction trades, allied medical 
programs are not normally available at degree-granting 
institutions.
    Since all institutions' institutional programs must be 
approved by the State Approving Agencies, there is a detailed 
review by a government agency to ensure all State and Federal 
requirements are met.
    Nondegree institutions have been included in other GI bills 
since the time the GI Bill was instituted in 1944. We support 
this legislation.
    H.R. 4079 would remove the requirement for private 
employers to increase wages for veterans enrolled in on-the-job 
training programs. This change is necessary due to the 
difficult economic times that contribute to the wage freezes or 
wage reductions in the private sector.
    The quality of a training program is not predicated on wage 
increases. The wage increase requirement for public sector 
employees was removed several years ago based on the same 
rationale as State and county and municipal budgets flatlined.
    The passage of this bill will allow eligible veterans and 
individuals to use their earned benefits during these difficult 
economic times and programs that are approved by the State 
Approving Agency.
    H.R. 3948 would include the payment of Chapter 33 benefits 
for test preparatory courses for a test that is required or 
used for admission to an educational institution. Currently 
Chapter 33 eligible individuals can use their benefits for only 
one licensure or certification test reimbursement.
    This bill would expand the opportunities and permit 
veterans to use their earned benefits in obtaining admissions 
to educational institutions.
    H.R. 3579 would increase the reporting fees paid to 
institutions for their role in administering the GI Bill. The 
current fee structure has been in force for over 30 years. 
Currently it is $7 a certification.
    These certifying officials are key players to the success 
of the GI Bill, have the most contact and interaction with our 
veterans. It is time to raise the reporting fee.
    H.R. 3484 would extend the authority for veterans to use 
the Work Study Program. The Work Study Program has been 
successful and not only provides eligible veterans a method to 
increase their income while in school but also provides a 
substantial amount of workers for the Department of Veterans 
Affairs' State Approving Agencies and the VA.
    H.R. 4203 would ensure veterans have the opportunity to use 
direct deposit. We heard Congressman Hall address that issue 
and it is definitely a hardship. And I can attest to veterans 
coming into the regional office in Manhattan from far away and 
it is difficult to get to pick up a check. So we support that 
also.
    If you have any questions, please feel free to ask myself 
or Mr. Chad Schatz who is an expert on OJT and apprentice 
programming.
    [The prepared statement of Mr. Bombard appears on p. 76.]
    Ms. Herseth Sandlin. Thank you very much, Mr. Bombard.
    Mr. Bombard. Thank you.
    Ms. Herseth Sandlin. Mr. Sullivan, welcome to the 
Subcommittee. You are now recognized for 5 minutes.

       STATEMENT OF COLONEL MARK E. SULLIVAN, USA (RET.)

    Colonel Sullivan. Madam Chairwoman, Ranking Representative 
Boozman, and Members of the Subcommittee, thank you for 
inviting me to this hearing.
    And I in turn want to extend this warm invitation to you. 
``Welcome to Federal Court.'' The cause for celebration is H.R. 
4469. Far from closing the door on Federal litigation on 
custody, this bill will provide a huge opening for litigants to 
make a Federal case out of it when they are dissatisfied with 
their rights and results in State Court. I will explain how in 
a minute.
    I am a retired Army Judge Advocate General Colonel 
practicing family law in Raleigh, North Carolina. And unlike 
those who create legislation in the House or the Senate, I try 
cases. Custody cases. Military custody cases. And when your 
troops, your constituents need help, they come to lawyers like 
me.
    I have handled military custody litigation for over 30 
years. I have helped draft and pass military custody 
legislation in over a dozen States.
    Military personnel do not have a lot of money to spend on 
litigation. They do not have money to spend on two courts 
battling over the same matter and they never have the funds for 
Federal Court litigation, yet that is where this bill would 
land them, right in the Federal Courthouse.
    Some say that H.R. 4469 is buttoned up and bulletproof 
because Section 208(d) says, ``Nothing in this section shall 
create a Federal right of action.'' They are wrong.
    There are several existing laws which creative lawyers can 
use to get a custody case into Federal Court if this bill is 
passed. And since it has not been reviewed by the House 
Judiciary Committee, nobody has really thought through the 
issue of Federal Court jurisdiction.
    Frustrated litigants in State Court will overflow into 
Federal Court. They will petition to remove the case to Federal 
Court. They will sue in Federal Court under the Declaratory 
Judgment Act. They will file civil rights lawsuits in Federal 
Court if H.R. 4469 is violated.
    My written testimony explains in detail. Do we want Federal 
judges trying custody cases, Federal marshals getting children 
from school to testify? Who will represent these 
servicemembers? If you think these cases are expensive now, 
wait until you start talking to your constituents who have been 
hauled into Federal Court because of this bill.
    Do your colleagues on the House Judiciary Committee know of 
this expansion of Federal jurisdiction? Federal law should not 
provide detailed instructions on military custody cases. This 
is the responsibility of State laws and courts. We have no 
national standard for child support in military cases or for 
military pension division upon divorce. Let us not start with 
military custody.
    The States are rapidly passing laws to protect the rights 
of servicemembers, men and women in uniform. About two-thirds 
of the States, 32 of them, have already done so and 10 have 
bills pending as we speak. This bill would stifle the 
initiatives States are enacting to protect servicemembers in 
uniform and parents.
    They are significantly better for military personnel than 
this bill: electronic testimony, expedited dockets for 
servicemembers, delegation of visitation rights to family 
members, coverage of mobilization for Guard and Reserve 
personnel, and temporary duty or TDY, not just contingency 
operations, and the availability of children for visitation 
during periods of leave.
    This bill has been proposed four times since 2007 and on 
four occasions, Congress said no. Leading opposition was 
Senator John McCain, Defense Secretary Robert Gates, the 
American Bar Association, and the National Military Family 
Association.
    This bill attempts to create a solution to a nonexistent 
problem, an ill-conceived solution. While there are stories 
about military parents who face custody battles, and these have 
been reported in the media, I have examined each one of them. 
Not one of these would be solved through the enactment of this 
bill. You should reject it.
    Thank you.
    [The prepared statement of Colonel Sullivan appears on p. 
78.]
    Ms. Herseth Sandlin. Thank you, Mr. Sullivan.
    I had a consultation with Mr. Boozman. The Ranking Member 
and I will forego our questions until after our colleagues who 
have joined us on the Subcommittee and the dais here have had 
an opportunity to pose theirs.
    I would like to recognize Mr. Perriello. While you are 
recognized for 5 minutes, we will probably have another round 
of questions. So, I will go ahead and recognize you for 5 
minutes, but knowing that you have a couple of bills here you 
may want to get questions to Members of this panel.
    Mr. Perriello. Right.
    Ms. Herseth Sandlin. Mr. Perriello.
    Mr. Perriello. First of all, Mr. Brown, thank you for the 
words about H.R. 3976 and thank you for everything from the 
American Legion.
    Mr. Brown, I was very pleased to hear your outrage about 
the Jobs Bill that has been offered. It is nice to see that the 
Senate has discovered bipartisanship, but that cannot be at the 
expense of bad policy.
    And there are a whole lot of issues we could talk about, 
but certainly the historic unemployment rates for our returning 
veterans right now is something that cannot be ignored and 
anything that calls itself a Jobs Bill.
    So I certainly appreciate that and know that many of us are 
working and trying to be creative in every possible way about 
ways that we can address that double digit unemployment for our 
returning veterans.
    Mr. Embree, welcome to the Committee. Congratulations on 
great testimony and thank you for bringing this back to the 
phone tent for us. It means a lot.
    The main thing I would like to address is that I know that 
your great organization as well as the American Legion has 
expressed concerns about the issue of H.R. 4079 and I would 
really love us to try to solve the problem.
    I think we all have the same goal here. We really think 
this is a program that works well. It is helping to get 
veterans hired. And there may be some magical point that is the 
right thing that makes it attractive enough for businesses to 
not want to disengage from the program.
    You know, my issue here is we want businesses to 
participate in hiring veterans. One of the things that I hear 
so much in my own district is the idea that businesses used to 
go out of their way to hire a veteran and now they seem to go 
out of their way to avoid it.
    These are extraordinary economic times and I think the idea 
of mandatory pay increases is daunting to employers right now.
    So I guess the question is really, to put it back on you a 
little bit, how can we solve this? How can we figure out a way 
to make sure businesses want to participate?
    Mr. Bombard, I know you have some expertise in this area as 
well. How can we get this right, because the goal here is 
obviously to--the intent of it was to try to remove barriers to 
businesses participating so that we get people hired?
    With that, I would just turn it back to you for a 
suggestion.
    Mr. Embree. Well, sir, being it is my first time, I will 
jump in. Thank you very much, sir, for this bill and for being 
willing to talk with us about this today.
    IAVA does agree in principle on H.R. 4079. We think 
expanding the OJT Program is the right thing to do. 
Unfortunately, we just feel it cannot be done on the backs of 
the vets that will receive lower wages.
    Now, we would support it if the GI Bill OJT rates did not 
decrease every 6 months. We see that as a nice solution to this 
problem. So we do not oppose lowering the threshold as long as 
there is increase in the GI Bill OJT rates.
    Mr. Madden. Again, I want to thank you for the question as 
well.
    The American Legion believes as a kind of second source is 
that OJT should be a part of the Post-9/11 GI Bill at chapter 
33, which would in turn bring about a larger benefit for the 
veterans themselves and would allow more individuals who are 
looking into OJT programs to enter into the programs 
themselves.
    Mr. Perriello. Well, I am certainly a big believer in 
expanding the OJT Program. And, you know, I have a Vet Works 
Bill that looks to do that. Mr. Sestak presented a view today. 
I honestly do not care whose bill goes forward and gets credit 
for it, but I do think we see this as an area, that 6 to 24 
month training programs that make the difference between, you 
know, minimum wage and a living wage to support a family.
    There is also, though, the immediate issue where we have 
the political realities of how quickly we can get an ideal fix 
through versus other things that we may be able to do.
    And maybe, Mr. Bombard, if you could just speak some to 
what you see from the--I know your organization has done a lot 
of these interviews and getting the feedback. What do you see 
is that barrier to participation and what is your 
recommendation for it?
    Mr. Bombard. Well, I think we need to pass this 
legislation. I am sure we could find a common ground to make it 
acceptable to all. But without this legislation, we are denying 
new veterans who are seeking opportunity to use their benefits 
at OJT and apprentice and we are denying the ability to do 
that.
    Chad Schatz from Missouri is a nationally recognized expert 
on the issue and has more experience than I do. And I would 
like to have him comment.
    Mr. Schatz. Again, thank you for your consideration to our 
comments.
    One of the things that we learned historically when we 
produced VA Circular 2206-12 and that was about 5 years ago 
when we had a situation where city, county, State governments 
had flat budgets. And, for example, police officers, 
firefighters were not able to get their GI Bill because the 
city, the county, the State had a flat budget and no increases 
and, therefore, no approvals.
    We learned from that. And as 2206-12 provided, these folks 
were able to get those public jobs working for city, county, or 
State and they receive their VA benefits. And that has 
flourished. And there was not any massaging of the benefit 
rates or anything as such.
    And to my way of thinking that this would work in the 
private sector as well.
    Mr. Perriello. Well, I see that my first 5 minutes is up, 
but just know that we will continue to want to work through 
this. I think we all have the end goal here and we look forward 
to working and seeing both the parallel track of how we fix the 
current barrier that exists that is preventing businesses from 
participating and also the ideal fix which is to get more 
investment in this program, more investment in OJT within the 
new GI Bill.
    So thank you very much for the feedback.
    Ms. Herseth Sandlin. Mr. Turner, you are now recognized.
    Mr. Turner. Thank you, Madam Chair.
    First off, I want to thank each and every one of you for 
the issues that you have brought forward. You through your 
organizations are an incredible source of eyes and ears for the 
important work that we have both of intended consequences of 
actions and of inaction that we have. And so I want to thank 
you for your dedication.
    Your bringing these issues forward allow us to act 
appropriately. And there are a number of issues, I know, that 
you have brought forward that will be very important for us to 
take action on.
    Mr. Embree, I want to thank you for your endorsement of the 
custody bill. It certainly is one that, I think, will make a 
difference.
    Just recently today, the Armed Services Committee had a 
hearing where John McHugh, Secretary of the Army, was talking 
about the importance of families and how we can support the 
families and, of course, lower stress of our men and women who 
are serving. And there is no greater area where stress and our 
families intersect than the issue of custody of our children. 
And I appreciate your endorsement. As I mentioned in my 
comments, we have a long list of those that have endorsed it.
    And I appreciate Mr. Sullivan in treating the issue of the 
Judiciary Committee because, in fact, the Judiciary Committee 
has looked at this bill. In fact, Chairman John Conyers waived 
jurisdiction in support of the bill upon review by the 
Committee as we brought this bill to the floor where it was 
passed as a stand-alone bill.
    Mr. Sullivan, I do want to ask you one question. I do 
appreciate, you know, your stated expertise. I do not have your 
bio, so I am not quite certain in all the areas that you 
practice, but you did make a relatively broad statement of your 
expertise in litigation. And I assume that that applies to 
custody.
    Do you handle custody cases?
    Colonel Sullivan. Yes, sir, all the time.
    Mr. Turner. Okay. And so you are here before us obviously 
because you have some expertise in the custody area.
    I wonder if you would tell me how the Indian Child Welfare 
Law, in specific the areas of their child custody provisions 
that are in chapter 25, Section 1901 apply from Federal Court 
and State Court and Tribal Court and how those conflicts have 
been resolved.
    Colonel Sullivan. Be happy to. The issue of the Indian 
Tribal Indian Child Welfare Act is a false analogy, ladies and 
gentlemen. This is not a custody statute in any way comparable 
to H.R. 4469. The Indian Child Welfare Act deals exclusively 
with State action in the life of a Native American child. It is 
applicable only to foster care, to adoptive placements, and the 
determination of parental rights. It is not applicable as H.R. 
4469 would be to child custody proceedings and divorce 
litigation between private litigants. It imposes a higher 
burden of proof for State action in intervening in the life of 
a Native American child. Rather than the usual burden of proof 
in a TPR case, that is termination of parental rights case, 
which is clear and convincing evidence, it imposes a ``beyond a 
reasonable doubt'' standard.
    Deference is also given to extended family placements 
pursuant to the Native American Tribal Law in Native American 
courts and proceedings involving children in Tribal courts 
under Tribal Law. It is based upon the sovereignty of Native 
Americans as a sovereign nation as opposed to intrusion and 
trampling of State laws as H.R. 4469 is. It does not specify a 
particular remedy which H.R. 4469 does and it does not take 
away evidence from the court as H.R. 4469 does.
    Mr. Turner. Okay. Well, that was a great description. I 
appreciate it. I am glad that you are familiar with it because 
my question to you is, how have Federal Courts interpreted the 
jurisdictional issue, because you made a very broad statement 
which I do not think is correct?
    You made the statement in opposition to this bill, 
including you held up your little card that said welcome to 
Federal Court, that it would give people access for their child 
custody cases to be determined in Federal Court.
    These statutes, with respect to the Indian Tribe as you are 
familiar with, had a similar challenge and also had the 
Congressional statement that it does not provide Federal 
jurisdiction over those cases. And as you, I am sure, can 
affirm for us, it was upheld as not providing Federal action, 
which this bill that I proposed would not either.
    Are you familiar with the cases that interpret whether or 
not that specific--because they are cited, as you know, in the 
Code section where it has been challenged that it provides 
Federal jurisdiction. Are you familiar with how those were 
determined, because it was determined in favor of Congressional 
action, which is there was no Federal jurisdiction?
    Colonel Sullivan. Mr. Turner, you are far too confident in 
my ability to look at a book like that and say, yes, I am 
familiar with all of those cases. I will happy to provide you 
with a memorandum, Mr. Turner, telling you exactly what the 
jurisdictional rulings have been in regard to Federal Court on 
the Indian Child Welfare Act.
    Mr. Turner. I would love that. Excellent. Thank you so 
much.
    Thank you, Madam Chairman.
    Ms. Herseth Sandlin. If you could provide me with a copy of 
that memorandum as well, Mr. Sullivan.
    Colonel Sullivan. Certainly.
    [Colonel Sullivan subsequently provided the information in 
a followup letter dated April 8, 2010, which appears on p. 
101.]
    Ms. Herseth Sandlin. I actually worked in Federal District 
Court in South Dakota and I have had the honor of representing 
nonsovereign tribes. While we had a heavy docket of cases 
coming from Indian Country, never did we have a child custody 
case under ICWA, what we refer to as the Indian Child Welfare 
Act.
    I would be interested in light of the statutory 
interpretation of ICWA and the same types of provisions being 
included in Mr. Turner's bill to prohibit the Federal cause of 
action, to prohibit the access to Federal Courts to litigate 
these cases.
    I want to make one other analogy here that is not as direct 
as the one that Mr. Turner has brought our attention to as it 
relates to ICWA. In representing both a military installation 
in South Dakota as well as Native American tribes, when we 
disbursed Federal funding for education for what we call 
children who are Federally connected children, that applies to 
children whose parents are in the Armed Services and children 
who are Native American.
    And there is a unique relationship. I appreciated your 
recitation and your understanding of ICWA, but there is a 
unique relationship between the Federal Government and tribal 
governments and tribal members based on treaties and in my 
opinion, a unique relationship between the Federal Government 
and the men and women who serve in our Armed Forces. I think 
that is sort of the analogy that forms a very strong basis in 
support of Mr. Turner's, legislation, and I look forward to 
getting a copy of your memorandum as well.
    Colonel Sullivan. Certainly, ma'am.
    Ms. Herseth Sandlin. Mr. Boozman.
    Mr. Boozman. Again, I would like for you all just to 
comment. One of the concerns I have and nobody--the Committee 
is so supportive of all of these things. And I guess one of my 
concerns is as you are out and about and you are busy with 
employers with the--I think I have been to Iraq eight or nine 
times and Afghanistan three or four times and visiting with the 
guys there, and there are so many people there that are on 
their, I do not even know what tour of duty now, but our Guard 
has never been used in this manner. It is a real problem. It is 
a problem for them. It is also a problem for the employers.
    And so as a result of that, at some point, and it can be 
very subtly or it can be overtly, it cannot be too overtly 
because they really cannot do it, but my concern is that we are 
going to have a backlash with employment of our Guardsmen. 
Okay? And we are probably experiencing that a little bit now.
    The Family Leave Act where we put the added burden of 
another 2 weeks, and, again, we need to look at this, and I 
understand the intent and I think it is a good one, do you all 
have some concern that that might cause increased problems with 
hiring of Guardsmen and things of that nature? I guess what I 
am saying, is that a legitimate concern that we should have?
    Mr. Brown. Thank you for the question, Congressman Boozman.
    I think it certainly is. Any time you are talking about 
taking employees from an employer for any duration of time in 
which, you know, they provide services for that employer, it is 
always a challenge, but there is the reality as well with 
servicemembers that, you know, they are losing their loved one 
for quite a period of time. And it is good for the morale and 
the welfare of the individual, Congressman.
    I think you are also very correct in deployments, 
particularly with Guard and Reservists, having an impact on 
potential employees being hired or them being hired when they 
return. That is certainly an issue and one that is also very 
difficult to address.
    For example, we have unemployment numbers every month from 
the Bureau of Labor Statistics (BLS). They tend to be a smaller 
sample than we would like them to be. They are very 
statistically up and down, but they also do not identify what 
branch of service and what type of service these individuals 
are participating in. That could be very helpful in identifying 
Guard and Reserve type issues, particularly with their 
employers. And I think that is something that, you know, BLS 
could do with one more question.
    Thank you for the question.
    Mr. Embree. And, sir, if I could weigh in from IAVA's 
standpoint. One thing with H.R. 3257 that we like to point out 
is the employer has the discretion to determine whether family 
leave is considered paid or unpaid leave time. And we think 
that will actually alleviate some of the worries about whether 
or not employers will be supportive of this.
    And one other thing to point out is that the current 
language of the bill only prevents employers from making the 
family use their vacation time or take sick time or comp time. 
So this just closes that loophole. It actually helps the 
employer as well as helping those family members. So they do 
have time be it paid or not to spend time with their family 
member while they are on leave.
    Mr. Madden. Thank you very much for the question.
    The American Legion believes that although we support this, 
there could be some problems that occur for those under 50 
employers and the way to address this is to ensure--I mean, 
either way, it is benefitting the veteran and that family 
member. So the American Legion supports the position.
    Mr. Boozman. Well, you did very well today, Mr. Embree, for 
your first time out and we appreciate you being part of the 
team and being over here.
    So with that, I yield back.
    Ms. Herseth Sandlin. Thank you, Mr. Boozman.
    I have two areas of followup from Mr. Perriello's line of 
questioning about his bill, H.R. 4079, and it relates to some 
of the testimony that Mr. Schatz had provided. The question is 
directed to Mr. Madden, Mr. Brown, Mr. Embree.
    Given what I think is clear in terms of some success in the 
public sector of helping veterans in this transition, as it 
relates to not having that requirement of the wage increase; I 
think everyone here on the Subcommittee recognizes your 
concerns and appreciation. How do we reconcile what we have 
seen happen for veterans who have employment in the public 
sector versus the proposal that Mr. Perriello has put forward 
as a way to address this issue while we work other avenues, so 
to speak, for veterans seeking job opportunities in the private 
sector?
    Mr. Embree. Ma'am, thank you for the question.
    What we are saying is that we do believe that there needs 
to be an overhaul of this program and we accept that. And we 
agree on the principle of this bill. We just believe that the 
rates for the OJT payment of the GI Bill should be adjusted if 
we are going to adjust the incentives for the employer.
    Right now, the way the bill stands right now, we would be 
incentivizing the participating OJT programs to lower their 
wages to the 50 percent threshold as it stands right now. And 
that is one of our major fears.
    If you look at it this way the GI Bill starts out with 
currently the stipend for the OJT Program paying about $1,026 a 
month. In 6 months, that drops to $752. Within another 6 
months, it is down to $478. That is about $500 that that 
veteran will lose a month if we do not adjust the OJT stipend 
from the GI Bill as an offset of adjusting the actual 
requirements of the employer.
    Mr. Brown. Thank you for the question, Madam Chairwoman.
    My understanding is actually that the Federal Government 
would cover that difference. I mean, there are so many 
unemployed veterans right now. With the OJT Program, our 
understanding is that they would be pegged at 50 percent. The 
Federal Government would continue to pay the other 50 percent 
of that veteran's salary. That being the case, we actually 
supported the legislation.
    Mr. Madden. Thank you very much for the question, Madam 
Chairwoman.
    The American Legion believes that the Montgomery GI Bill 
does not pay enough for it and believes that the Post-9/11 GI 
Bill should be the supplement and they should be brought under 
those educational benefits.
    Ms. Herseth Sandlin. Mr. Schatz, do you want to comment any 
further in terms of the questions that Mr. Perriello was posing 
or in light of the VSOs' various positions on the bill and the 
comments that they just made?
    Mr. Schatz. Yes, ma'am. And I thank you for that 
opportunity.
    I bring the public sector story to us because perhaps it 
was not a well-known story. Maybe only the insiders knew about 
it. But I think it is enlightening today because it was a 
success.
    And, again, without massaging any benefit rates, that is 
not to say that we as the National Association of State 
Approving Agencies would not be agreeable to some sort of 
discussions, but I simply bring up a point of fact that 
historically we have precedence that it does work the way it 
left the dock.
    So I appreciate all comments and concerns and issues. But, 
again, we would be agreeable to discuss any other type of 
measures.
    Ms. Herseth Sandlin. Well, I appreciate the recommendations 
and the input you have provided. We are going to continue to 
work with Mr. Perriello and with all of the Committee and with 
the Ranking Member to see what is the best way to address this 
both in the short and long term.
    From a rural State, I have a little bit of concern about 
these very small businesses who would never be able to offer an 
increase in wages. Referring to Mr. Smith's bill as it relates 
to what we did on family and medical leave, by only applying to 
businesses who employ more than 50 people. We have 
Congressional districts where most of our businesses are small 
businesses and employ less than that. We want to make sure that 
we are covering everyone including families, by giving families 
protection, flexibility options just as we are trying to give 
our veterans as much flexibility and options as possible by 
utilizing education benefits.
    Again, we are working all the different angles on this, but 
I appreciate the helpful input that you have all provided 
today.
    Mr. Turner, Mr. Boozman, do you have any final questions 
for this panel?
    Okay. Thank you all. And we look forward to continuing to 
work with you on these bills that we are considering today and, 
of course, many others that are pending here in the 111th 
Congress. We thank you for your service and your dedication on 
behalf of our Nation's veterans and our military families. 
Thank you.
    I would now like to invite our third panel to the witness 
table. Joining us on this final panel is Colonel Shawn Shumake, 
Director, Office of Legal Policy, Office of the Under Secretary 
of Defense for Personnel and Readiness, Program Integration and 
Legal Policy, U.S. Department of Defense (DoD), and Mr. Keith 
Wilson, Director of the Office of Education Service, Veterans 
Benefits Administration, U.S. Department of Veterans Affairs.
    Mr. Wilson is accompanied by Mr. Mark Bologna, Director of 
Loan Guaranty Service, Veterans Benefits Administration for the 
U.S. Department of Veterans Affairs, and F. John Brizzi, Jr., 
Deputy Assistant General Counsel for the U.S. Department of 
Veterans Affairs.
    I want to welcome back all of you to the Subcommittee. Your 
full written statements will be entered into the record as well 
so we ask you to keep your testimony to 5 minutes because I 
know there are a number of questions from the Members who are 
still here at the hearing.
    Colonel Shumake, we will start with you. Again, welcome to 
the Subcommittee and you are now recognized for 5 minutes.

 STATEMENTS OF COLONEL SHAWN SHUMAKE, USA, DIRECTOR, OFFICE OF 
    LEGAL POLICY, OFFICE OF THE UNDER SECRETARY OF DEFENSE 
   (PERSONNEL AND READINESS), PROGRAM INTEGRATION AND LEGAL 
   POLICY, U.S. DEPARTMENT OF DEFENSE; AND KEITH M. WILSON, 
       DIRECTOR OF EDUCATION SERVICE, VETERANS BENEFITS 
     ADMINISTRATION, U.S. DEPARTMENT OF VETERANS AFFAIRS; 
ACCOMPANIED BY MARK BOLOGNA, DIRECTOR OF LOAN GUARANTY SERVICE, 
 VETERANS BENEFITS ADMINISTRATION, U.S. DEPARTMENT OF VETERANS 
   AFFAIRS; AND F. JOHN BRIZZI JR., DEPUTY ASSISTANT GENERAL 
COUNSEL, OFFICE OF GENERAL COUNSEL, U.S. DEPARTMENT OF VETERANS 
                            AFFAIRS

            STATEMENT OF COLONEL SHAWN SHUMAKE, USA

    Colonel Shumake. Thank you, Madam Chairwoman, Ranking 
Member Boozman, Members of the Subcommittee.
    The Department of Defense appreciates the opportunity to 
appear before you today and discuss H.R. 4469. The Department 
opposes this legislation.
    Some believe that the Department's opposition to this bill 
arises simply because it is a States' rights issue and that is 
certainly not the case, although the States certainly are 
indeed in a better position to perform the delicate balancing 
of the interests that arise when a servicemember has to deploy 
and give up custody of a child.
    Even so, we cannot lose sight of the fact that the 
balancing in this case is far different than anything the 
Servicemembers Civil Relief Act, the SCRA, is normally asked to 
do. This is not like balancing the servicemember's interest 
against that of a creditor to be sure that the servicemember is 
entitled to the 6 percent interest rate cap. This is a 
balancing of interests that also includes the complicated 
dynamic of a child.
    Certainly a servicemember should not lose custody of a 
child solely because of a deployment, but how should the 
effects of that deployment be balanced into the equation? There 
is no one size fits all answer to that question and not 
everyone would even concede or agree that the best interest of 
the child should always be subordinate to the best interest of 
the servicemember.
    In any event, the States through their legislatures and 
their judges are in the best position to do this balancing. As 
Mr. Sullivan pointed out, if this becomes law, we do believe 
that there will be Federal Court oversight and perhaps even 
jurisdiction for removal. And this would greatly delay and 
greatly increase the cost of already difficult and expensive 
litigation.
    We would like to emphasize more importantly that this 
legislation provides extremely narrow substantive protections. 
Its thrust is to prevent change of custody motions from being 
filed while the servicemember is deployed in support of a 
contingency operation. That is very specific conditions. But we 
have yet to find one single case, not one single case involving 
a motion for a change of custody filed while the servicemember 
was deployed in support of a contingency operation in which the 
servicemember lost custody as a result of the deployment or as 
the result of the potential for deployment. This is largely due 
to the strong protections the SCRA already provides.
    One might then ask that if this law is so narrow and really 
does not do anything, then what is the problem. It will not 
hurt anything. But that is not the case.
    You have also heard, of course, about the dangers of 
Federal jurisdiction. But in addition, this law would be seen 
as the gold standard for child custody. States would conclude 
that Congress has spoken and no further action was necessary. 
There would be a huge disincentive for those States that do not 
already have military specific custody laws now to pass them.
    Our State Liaison Program within the Under Secretary for 
Personnel and Readiness is working tirelessly with the States 
to encourage the 18 or 20 or so remaining States that do not 
have military specific child custody statutes to pass them. 
Right now between 10 and 15 additional States either have a 
bill in Committee or otherwise under consideration.
    Just yesterday the Vermont legislature sent a military 
specific child custody bill to the Governor for signature to 
make it law. A key consideration here is that almost all, if 
not all of these bills include greater protections for the 
servicemembers than this narrowly-drawn provision would 
provide.
    One huge example is the authority to allow a servicemember 
to delegate visitation rights, something that is not even 
considered in H.R. 4469. And indeed there are other benefits as 
well that these States are providing in a system that fits 
better within their overall context and their overall domestic 
relations laws.
    Although we oppose H.R. 4469, it has done some great 
things. It has pushed the Department to redraft its family care 
plan instruction to ensure that the noncustodial biological 
parent is brought into the discussion about what happens during 
the deployment or is at least notified of the deployment before 
it happens.
    This is where the greatest difficulty arises. All too often 
servicemembers think they can ignore the noncustodial parent 
and simply designate in their family care plan where the child 
will be left, perhaps with a third party or a new husband or 
wife. And failure to involve that noncustodial parent in the 
decision is what creates difficulties after the servicemember 
is deployed.
    The Department's revision to its family care plan will do 
everything possible to avoid this and it follows the 
instruction in the Senate that the Senate provided in its 
guidance in Section 556 of S. 1390, which was the Senate's 
version of last year's National Defense Authorization Act.
    This bill, H.R. 4469, has also caused the Department to 
recognize the great cost associated with litigating these 
cases. However, no law, whether it is Federal or State, can 
possibly prevent costly litigation when the parties wish to 
make that an issue.
    So the Department has taken another step to team up with 
the ABA's military pro bono project and establish a liaison 
with that organization to ensure that we do everything we 
possibly can to provide this great service to our 
servicemembers.
    The Department is grateful for the tremendous things that 
this Subcommittee has done, but we must reemphasize our 
opposition to H.R. 4469 and ask that you not favorably report 
it.
    To the degree that there is a problem that H.R. 4469 
addresses, the answer to that problem does not lie with Federal 
legislation.
    The Department has worked real hard to provide answers to 
that question through its State Liaison or through its efforts 
with its family care plan and also through the ABA and our 
closer coordination with them.
    At the very least, the Department asks that you delay any 
further action on this bill until it can complete the report 
required by last year's Authorization Act on this bill, which 
is due at the end of March.
    Thank you for the opportunity to address this Committee. We 
look forward to the opportunity to continue to work with this 
Committee and I will do my best to answer any questions that 
you may have. Thank you.
    [The prepared statement of Colonel Shumake appears on p. 
86.]
    Ms. Herseth Sandlin. Thank you, Colonel.
    Mr. Wilson, welcome back to the Subcommittee again. You are 
now recognized for 5 minutes.
    Mr. Wilson. Thank you, Madam.
    Ms. Herseth Sandlin. Frequent flyer testimony miles.

                  STATEMENT OF KEITH M. WILSON

    Mr. Wilson. Office space might be needed.
    Good afternoon, Chairwoman Herseth Sandlin. Good afternoon, 
Ranking Member Boozman and other Members of the Subcommittee.
    I am pleased to be here today to provide VA's views on 
pending legislation affecting our education and housing 
programs. Three of the bills on today's agenda affect programs 
or laws administered by the Departments of Labor or Defense. 
Accordingly, we defer to those Departments as appropriate.
    H.R. 3484 would amend title 38 to extend until June 30th, 
2014, VA's authority regarding certain work study activities 
under the educational assistance programs we administer. VA 
does not oppose legislation that would extend the current 
expiration date of the work study provisions. However, we would 
prefer that the legislation provide a permanent authorization 
of the work study activities rather than extending for short 
time periods.
    H.R. 3813, the ``Veterans Training Act,'' would amend title 
38 to expand the universe of approved programs of education 
under the Post-9/11 GI Bill to include programs approved for 
purposes of chapter 30, title 38. Qualifying programs would 
include those pursued at an educational institution as defined 
under section 3452(c) of title 38. This measure would not 
include payment provisions for the newly-covered programs of 
education.
    While VA supports the intent to expand the programs of 
education for which an eligible individual may use Post-9/11 GI 
Bill benefits, VA does not support H.R. 3813 for the reasons 
outlined in my written testimony.
    H.R. 3948, the ``Test Prep for Heroes Act,'' would amend 
title 38 to authorize payments to students under the Post-9/11 
GI Bill for test preparation. VA does not oppose legislation 
that would provide for payment of test preparatory courses 
under the Post-9/11 GI Bill.
    We would note, however, that H.R. 3948 does not specify an 
effective date and, therefore, VA suggests the addition of an 
effective date with provisions that would amend applicable 
tests taken on or after January 1st of 2011.
    H.R. 4079 would temporarily suspend a requirement under 
title 38 that potential employers of veterans participating in 
programs of on-the-job training demonstrate a wage progression 
for such veterans employed when applying for approval for State 
Approving Agencies.
    VA does not support enactment of this bill. Although the 
requirement in current law that the wages must reach a level of 
85 percent of the wages for a job a veteran is being trained 
for, it may be too restrictive under current economic 
conditions. We suggest that Congress instead consider reducing 
the relevant percentage requirements rather than completely 
removing them. Modifying the requirement in this manner could 
allow the SAAs to approve more employers to participate in OJT 
programs and increase valuable training opportunities for 
veterans.
    H.R. 4203 would amend title 38 to direct the Secretary to 
ensure that payment of education assistance to a veteran 
student under the Post-9/11 GI Bill be made directly to the 
veteran's bank account. VA does not support this measure. We 
believe it is unnecessary.
    Currently individuals receiving educational benefits under 
the Post-9/11 GI Bill can request that VA make these payments 
directly to their bank account. VA has provided this payment 
option since the new payment program began in August of 2009.
    H.R. 4359 would expand the Secretary's authority to 
guarantee home loans for energy-efficient dwellings and 
increase the maximum amount certain veterans may borrow toward 
making energy-efficient improvements. It would also require the 
Secretary, within 90 days of enactment of the bill, to 
prescribe interim policy guidance on energy-efficiency audits 
and the conditions under which such audits may be performed.
    VA supports the goal of encouraging energy efficiency and 
is still assessing the impact of the bill on borrowers and 
program costs. We will provide the Department's views on the 
bill for the record.
    [The Administration views for H.R. 4359 follow:]

        DEPARTMENT OF VETERANS AFFAIRS VIEWS ON H.R. 4359, THE WARMER 
        ACT

        The WARMER Act would expand the Secretary's authority to 
        guarantee housing loans for energy-efficient dwellings and 
        increase the maximum amount certain Veterans may borrow toward 
        making energy-efficient improvements. It also would require the 
        Secretary, within 90 days of enactment of the bill, to 
        prescribe interim policy guidance on energy-efficiency audits 
        and the conditions under which such audits may be performed.

        VA supports the goal of encouraging energy efficiency, but 
        cannot support the bill, as drafted, because it would create an 
        inconsistency with other statutory provisions. For instance, 
        the bill would amend 38 U.S.C. Sec. 3710(d) to describe the 
        types of loans the Secretary may guarantee, but would not amend 
        3710(a), which also describes energy efficiency improvement 
        loans. In addition, it is not clear how the new guaranty 
        amounts would work with the guaranty structure currently set 
        forth in 38 U.S.C. Sec. 3710(d)(3). We look forward to working 
        with Congress to address these and other concerns.

        VA estimates that the enactment of H.R. 4359, as drafted, would 
        result in a first-year savings of $8,000, a 5-year cost of 
        $59,000, and a 10-year cost of $201,000.

    Mr. Wilson. Madam Chair, this concludes my statement. I 
would be happy to respond to any questions you or other Members 
of the Subcommittee may have.
    [The prepared statement of Mr. Wilson appears on p. 87.]
    Ms. Herseth Sandlin. Thank you, Mr. Wilson.
    As we did with the prior panel, the Ranking Member and I 
will reserve our questions until after our colleagues who are 
still in attendance at the hearing have an opportunity to pose 
their questions.
    I would like to recognize Mr. Turner.
    Mr. Turner. Thank you, Madam Chair. I greatly appreciate 
your hospitality in allowing me to be on the Committee and also 
your thoughts on the legislation H.R. 4469.
    Colonel, you and I have had a number of conversations about 
this, one of which, of course, occurred in my office. And I 
have heard your description. I really want to get to your 
concern that you are not finding any of these cases because in 
my office, you made that statement also that, you know, it is a 
bill looking for a remedy that does not have a problem or 
something to the effect of that you are not seeing these cases 
as they apply.
    So my first question is, when were you or someone who 
reports to you in concluding that looking at the records of the 
Family Law Court proceedings in Montgomery County, Ohio, where 
I live?
    Colonel Shumake. Sir, I have not looked at the Family Law 
Court proceedings in your district in Ohio.
    Mr. Turner. Hamilton County in Cincinnati?
    Colonel Shumake. No, sir, I have not.
    Mr. Turner. The Chair's community, did you look there?
    Colonel Shumake. No, sir.
    Mr. Turner. And the Ranking Member?
    Colonel Shumake. No.
    Mr. Turner. And the reason why I ask that is because the 
one thing that we know from our conversations is that this is 
an issue that is locked up in the Family Law Courts scattered 
across the country. There is no database for you to look at.
    For you to say you have not found any, for you to say that 
it does not exist is really not something that anyone can say 
because you cannot exhaustively undertake this search that I 
just asked you if you had started.
    In fact, it is my understanding that you would have a hard 
time even looking at any database with respect to family law 
proceedings with respect to members.
    Do you have a database that tells you during members' 
service time how many of them even have any custody proceedings 
that occur? Do they have to report that to you?
    Colonel Shumake. Sir, we have to resort to anecdotal data. 
We have in the course of preparing our responses to the last 
year's report requirement, we have found 34 reported cases. I 
mean, that is what the report has asked us to look at, the 
reported cases. Thirty-four that deal with these issues indeed 
do not address or do not meet the criteria that you have 
established in that legislation.
    Mr. Turner. Well, what is important about what you just 
said, because I want to make this clear as your report is 
coming due, is that you are looking at anecdotal information. 
You do not know how many hearings there have been. You do not 
even know the subject matter of what occurred in hearings other 
than these 34 that you found through anecdotal.
    I am looking forward to your report because, as you said, 
you know, perhaps the bill is too narrow and we need to widen 
it. Certainly the review that you have of these cases, I know 
that the Members of the Armed Services Committee would be 
interested if the review shows that we need to broaden its 
scope to encompass what occurred in those 34 cases. But I look 
forward to it with respect to that.
    Now, with respect to Federal Court, we are a Congress. We 
actually get to decide. And throughout, you know, this book 
that has the annotations of the Federal Court cases other than 
laws, there are a number of Federal Court precedents, which I 
am certain in your position you are very well aware of where we 
get to decide where Federal Court jurisdiction is.
    So I am very confident of the provisions that we have in 
the bill. And if there is something you would like to recommend 
to strengthen that since your concern is Federal jurisdiction, 
I would be open to amending the language to ensure that we do 
not make a mistake in that area.
    And the next thing, you said that a number of States have 
passed legislation. Does the legislation in Michigan, 
Tennessee, Florida, and Illinois with respect to servicemembers 
and custody agree? Are they the same, Michigan, Tennessee, 
Florida, and Illinois?
    Colonel Shumake. Sir, I cannot comment on the specific 
ones, but I do agree with your point that they do vary. And, in 
fact, that is not surprising.
    In fact, in Secretary Gates' letter back in September, he 
recognized that they should vary and that is not surprising 
that they would because they have to look at the unique 
circumstances within that State. So I would expect they would.
    I would expect that as they get more in it, as we work with 
our liaison, we would actually make it better and improve it. 
And we have done that. Our first goal is simply to make sure 
they have addressed the unique circumstances----
    Mr. Turner. Colonel.
    Colonel Shumake [continuing]. Of military members.
    Mr. Turner. Colonel, I appreciate that you said that which 
is why I asked you the question. I am familiar with Secretary 
Gates' letter, of course, which I am certain you had 
involvement in. That actually is a basis usually for a national 
standard, not for inaction by Congress. When the States vary, 
especially when you have a national military and you want 
consistency and people to have confidence as to what standard 
would apply to them, that is usually when you go to a national 
standard.
    Now, family care plans, you were telling me what you 
thought people should have done. Some of these 34, perhaps you 
could tell us what they should have done to avoid the cases 
that you are reviewing.
    Thank you, Madam Chair.
    Colonel Shumake. I am sorry. What often happens, and if you 
look at, for instance, Diffen v. Talon case that I know you are 
familiar with, one you brought up in your office when I was in 
there, when you look at what they should have done is they 
should have realized that you cannot use a family care plan to 
delegate your custody rights to a third party who is really a 
legal stranger to the case, to the child, like the parent of 
the deploying member or the new spouse of the deploying member. 
You cannot do that when there is a noncustodial, biological 
parent on the scene who has not been declared unfit.
    And that is what we saw in the Diffen v. Talon case where 
they tried to do that without up front going out to that 
noncustodial, biological parent and saying, look, I am 
deploying. Let us do that up front. Let us not wait until the 
deployment happens and then that other parent says wait a 
second, you cannot just give your custody away to a third 
party.
    So that is something that we are fixing in our family care 
plans right now. That is the huge, huge thing. And that is one 
of the things that we commend you for with this legislation. 
Because of your efforts, we have seen where the holes lie and 
it is not with the motions for changes of custody that occur 
during a contingency operation. It is in those cases where 
there is not even a determination of child custody in the first 
place.
    So we use as a readiness tool the family care plan to go 
out and insist that our servicemembers resolve those things 
before they become a problem, before they are downrange, and we 
are asking them to keep an eye on the target and they are 
worried about their families back home.
    So that is a great result of what we have been through with 
this legislation, but it perfectly illustrates our point that 
we do not need the legislation and that is has negative 
effects, unintended consequences that we do not have to deal 
with by the improvements that we are making in the family care 
plan instruction or regulation.
    Ms. Herseth Sandlin. Thank you, Mr. Turner.
    What would the unintended negative consequences be of this 
legislation, again? The potential to end up in Federal Court?
    Colonel Shumake. Well, yes, ma'am. That is why----
    Ms. Herseth Sandlin. Even though we have addressed, I think 
effectively, Congress' ability to prevent that from happening?
    Colonel Shumake. True, but it has not been done in the 
legislation because, again, the legislation says that it does 
not create a Federal cause of action. It does not say anything 
about blocking the ways to get into Federal Court that already 
exist that Mr. Sullivan talked about, the removal of 28 U.S.C. 
Sec. 1442(a). It is still there, the ability for the Federal 
Courts to go in and have oversight when the request goes up to 
say, hey, the State Courts are not implementing H.R. 4469 like 
they are supposed to. Federal Court, it is a Federal question.
    And I have heard several experts, and I am not an expert in 
the Federal Courts, but as I have gone to our Office of General 
Counsel and I have reached out to others in the Department of 
Justice, they certainly believe that the Federal Court 
oversight is going to be there no matter what we say with 
respect to this.
    But the particular language in the bill does not forestall 
these other alternatives to the Federal Courthouse. Perhaps it 
stops an initial action based on a Federal question, but all 
the other mechanisms are still there. So that is the Federal 
Court unintended consequence.
    The other unintended consequence is we are working really 
closely with the remaining States. We are between now 40 to 45. 
And those bills, I have seen them. They are more comprehensive. 
They provide greater rights and they fit nicely within the 
context of the domestic laws that already exist within those 
States. You know, you do not have to worry about the issues of 
preemption.
    And I know there is a provision in this statute about 
preemption as well and it talks about where the greater 
protections will lie, and I think it means to say that the 
courts that consider those greater protections and try to 
figure out which one is greater, I think it means to say that 
you will apply the higher standard.
    It does not actually say that. It just says the Federal or 
State Courts considering the action will apply either the 
Federal or State law. It does not say the Federal or State law 
that provides the greater protection. I think just a word got 
dropped out of that.
    But even so, it is not always easy in this world and in 
different systems where they do not even use the same terms, it 
is not always easy to say what is providing greater protections 
as opposed to what is just providing different protections so 
that you get the arguments that we want to avoid. We do not 
want lawyers to get in there where it is already a very 
difficult and rancorous proceeding, we do not want to give them 
an opportunity for more arguments about the specific law and 
which one applies.
    So, you know, it may sound nice on paper to say apply the 
greater protection, but sometimes it is just a different 
protection so you are not sure which one applies.
    Ms. Herseth Sandlin. Well, my sense is that H.R. 4469 is 
seeking to provide a floor, a base protection and in no way 
inhibits. I think there is specific language that indicates, 
and I know you stated you are familiar with it, but there may 
be some confusion that States are in no way prohibited from 
granting greater protection. Instead it goes at the heart of 
the fact that the deployment should not in and of itself be 
used as a factor in determining what is in the best interest of 
the child.
    You had answered, I think in response to Mr. Turner, my 
question about other changes being made to the family care 
plan. We may want to follow-up with you separately about that, 
but I did want to spend a little bit of time here with Mr. 
Wilson on a couple of the other bills before us today.
    H.R. 3813 introduced by Mr. Sestak, what kind of specific 
payment rules are needed for this bill if this bill became law?
    Mr. Wilson. There are a couple directions I believe that 
need to be addressed. One would be the relationship between 
training times under the type of programs that would be offered 
under H.R. 3813 and how they marry up with training times now 
as they apply to the housing allowance, et cetera. The bill is 
silent on that, so we believe we would need to make sure that 
we fully understand the relationship so that there is 
consistency in how that housing allowance would be paid.
    The other issue perhaps is a little bit more complex in 
that the equivalent of what would be the tuition and fee 
payments would be paid up front as the current tuition and fees 
are now under the Post-9/11 GI Bill.
    Under the type of programs that are covered under H.R. 
3813, you have situations such as an 18-month-long computer 
training program that could cost $20,000, $30,000, $40,000, 
$50,000. Potentially you could create an environment by which a 
veteran would prior to completion of that prolonged period of 
training have to withdraw and they could potentially be on the 
hook for significant amounts that would have to be recouped 
from them.
    Ms. Herseth Sandlin. We are going to be working with Mr. 
Sestak. Obviously Mr. Perriello has some similar interests in 
again finding a way to work through some of the situations, 
providing flexibility for the veterans and using the benefit.
    Certainly we are very interested in this Subcommittee, as 
you know, in administrative ease where we can find it in 
administering the benefit. So I appreciate your 
recommendations.
    I may have just a couple of others, and I recognize the 
Ranking Member for questions he may have for the panel.
    Mr. Boozman. Very quickly. We do appreciate, Mr. Wilson, 
the technical assistance that we received in helping us with 
the WARMER Bill and trying to get things straight and your 
all's willingness to work with us to try and resolve some 
issues. So we do appreciate that very much.
    The NDAA required DoD to provide--there has been mention of 
the study on the issue----
    Colonel Shumake. Yes, sir.
    Mr. Boozman [continuing]. That we are talking about. I 
think that is due the 31st. Will it be done then?
    Colonel Shumake. Sir, I hope so. That is my goal, but I 
cannot say that there have not been a few setbacks that I had 
not anticipated. But that is what we are shooting for.
    Mr. Boozman. Okay. Good. Well, again, that would be helpful 
also in seeing that as we go forward with that issue.
    So with that, I yield back, Madam Chair.
    Ms. Herseth Sandlin. Mr. Turner?
    Mr. Turner. No thank you.
    Ms. Herseth Sandlin. Mr. Wilson, H.R. 4079, Mr. Perriello's 
bill, and we had explored this with the prior panel. From your 
perspective in the position that you have been in with the 
Education Service, why is the public sector not required to 
provide a periodic wage increase but the private sector is 
required to do so? What is your understanding of that?
    Mr. Wilson. Yes. This was an issue I am familiar with that 
was one of the first that was put on my plate when I was 
fortunate enough to be appointed to this position about 4 years 
ago.
    The situation we were looking at there was a little bit 
different, but the end result was very similar in that the 
public sector was in a situation where competitively speaking 
they were at a disadvantage. They were not able to offer the 
salaries at the training levels that would attract the talent 
that they were looking to bring into their organizations.
    So a lot of them were in the situation where when they 
brought the individual on board, they would be offering the 
full performance salary from the get-go in an attempt to bring 
those individuals into the organization. That had the same 
effect in that there was not a wage progression.
    We looked at our flexibility. The Secretary did have 
flexibility to address that by policy, so we did that.
    Ms. Herseth Sandlin. Do you think if Mr. Perriello's bill 
provides flexibility in the private sector--do you think this 
could work as well? Understanding the concerns expressed by 
some of the VSOs today, what are your thoughts on how this 
could work in the private sector?
    Mr. Wilson. I believe the potential is there.
    Ms. Herseth Sandlin. Have you worked directly with any of 
the other State Approving Agencies and their experiences 
similar to what Mr. Schatz was describing in his testimony?
    Mr. Wilson. That is correct. I believe his experiences are 
consistent with what we see in other States as well.
    Ms. Herseth Sandlin. I sort of cut you off, but what were 
you going to elaborate on?
    Mr. Wilson. No. I just wanted to point out that I believe 
there is potential. What we wanted to guard against was the 
situation where a veteran's overall wages or overall income 
wages and OJT combined would be declining at the point when 
they are getting more training, which seems to be inconsistent.
    We do recognize the issues, though, where if that is the 
only job that the veteran is offered, the only one available to 
them, they will take that job regardless. And we want to be 
able to recognize that. So I do believe there is some 
flexibility and we look forward to working with the 
Subcommittee on that.
    Ms. Herseth Sandlin. Thank you.
    I do not have any further questions. Just a couple of final 
comments.
    I know Mr. Boozman was inquiring, Colonel, about the 
timetable for the report. I think we are all interested in that 
report. Obviously we have got some folks on the Armed Services 
Committee who are interested as well.
    I thank you for your testimony and to both of you on this 
panel, and others on previous panels for your statements.
    I do think, Colonel, it is very unusual to have all Members 
of the Armed Services Committee write a letter in agreement for 
what they view as sort of a base, a core protection on 
something as important as the custody of a child.
    I think that we are in a position here to address some of 
the concerns that you have to tighten up language if necessary.
    We will obviously be working with our Senate counterparts 
given that the House has spoken quite clearly and repeatedly on 
the importance of this kind of protection, and appreciate the 
work that you and the DoD have undertaken in light of the 
House's actions even though it has not been signed into law.
    But I do hope that we can continue to work to address the 
unintended consequences that you think may result and how we 
can again add language, tighten language, provide additional 
evidence and precedent that we have and the experiences that 
all of us have in our Congressional districts being very 
familiar, particularly with the experience of some of our 
National Guard and Reservists who in the experiences of this 
Subcommittee and the full Committee have fallen through the 
cracks as it relates to protections that DoD should be 
providing in other areas and the awarding of benefits and 
informing them of benefits that they are entitled to.
    Again, we look forward to working with you and appreciate 
your input, but this Subcommittee is very interested in 
continuing to move to confirm what the House and prior 
Congresses have done.
    We think that the report that you are preparing will be 
very informative for us. I know you will be sharing that with 
the Armed Services Committee and we will be looking forward to 
seeing the results of your report as well.
    Colonel Shumake. Yes, ma'am. Thank you.
    Ms. Herseth Sandlin. Thank you again to everyone that 
testified. Again, a variety of different bills we have here to 
either close loopholes, provide more flexibility, provide 
additional protections and opportunities for our Nation's 
veterans.
    We are going to continue to look for ways to improve 
existing programs and add new ideas in light of the changed 
environment and additional challenges that the men and women in 
our Armed Forces face and the types of challenges that puts on 
folks, particularly in your position, Colonel, Mr. Wilson, for 
you, and your teams in a fast changing environment for a number 
of different reasons compounded by the change in our economy 
here in the United States to be able to give back what the 
country owes to folks that are in Iraq, Afghanistan, and 
elsewhere around the world going through strains and struggles 
that we will never, I think as Mr. Embree stated, that so many 
of us will never be able to fully understand, but make every 
good faith effort to address the needs when individual stories 
are brought to us from constituents in our districts.
    As always, we are going to keep an open mind toward any 
other suggestions and ideas that you will be able to share. 
But, again, we appreciate those that you have presented to us 
in the written record and through your testimony and responses 
to our questions today.
    With that, the hearing stands adjourned.
    [Whereupon, at 4:05 p.m., the Subcommittee was adjourned.]



                            A P P E N D I X

                              ----------                              

   Prepared Statement of Hon. Stephanie Herseth Sandlin, Chairwoman, 
                  Subcommittee on Economic Opportunity

    Today we have a full schedule that includes 11 bills before us that 
would address the unique needs of our veteran population. The bills 
before us today seek to: expand existing laws to provide certain family 
members with a leave of absence from work when a servicemember is 
called up for active duty service; modernize fees payable to 
Institutions of Higher Learning for certifying student veterans; expand 
education entitlements under Title 38; reauthorize existing law to 
prevent the foreclosure of a veteran's home; amend on-the-job training 
requirements to encourage businesses to hire military veterans in a 
tough economy; make available housing loans to construct or modify 
energy efficient homes; provide protections under the Servicemembers 
Civil Relief Act to servicemembers going through child custody 
arrangements; and create energy related job opportunities for military 
veterans.
    Included in today's hearing is H.R. 3484, which I introduced to 
reauthorize existing law that affords certain student veterans with a 
work-study allowance while they are enrolled in school. Under the 
current work-study program, veterans that qualify for the VA work-study 
program are limited to working on VA related work such as processing VA 
paperwork, performing outreach services, and assisting staff at VA 
medical facilities or the offices of the National Cemetery 
Administration.
    The current work-study program is scheduled to expire on June 30, 
2010. My legislation would simply reauthorize this important program to 
June 30, 2014 allowing our student veterans to gain valuable skills in 
an approved work environment while completing their studies.
    Providing our student veterans with work-study opportunities is an 
issue that I take seriously. Earlier this year the House successfully 
passed H.R. 1037, the Pilot College Work Study Programs for Veterans 
Act of 2009. This legislation includes language to direct the Secretary 
of the U.S. Department of Veterans Affairs to conduct a 5-year pilot 
project on expanding existing work-study activities for veterans. Rest 
assured that I will continue to push for enactment of this important 
legislation in the remainder of the 111th Congress.

                                 
  Prepared Statement of Hon. John Boozman, Ranking Republican Member,
                  Subcommittee on Economic Opportunity

    Good afternoon Madam Chair.
    Thanks for moving these bills forward. I would first request that 
the written testimony of the American Bar Association be included in 
the hearing record. I would note for the record that they oppose 
passage of H.R. 4469.
    Madam Chair, I greatly appreciate your including H.R. 4259, The 
Warriors Adapting Residences with Mortgages for Energy Renovations Act 
or for short, the `WARMER Act', which I introduced with Congressman 
Walz as an original cosponsor. I introduced the WARMER Act as a result 
of concerns expressed by a very knowledgeable developer who pointed out 
several shortcomings in the way VA appraised properties with regards to 
energy efficiency improvements.
    Besides the PAYGO issues, we have a very good collection of bills 
to consider. I have some concern with a couple bills. First, H.R. 4079 
which would waive the requirement that an employer increase the wages 
of veterans who are employed as apprentices under title 38's 
apprenticeship program. H.R. 4079 as written, would have some 
unintended consequences such as lowering the apprentice's total wages 
over the period of training because of the statutory reduction in the 
VA payment. But, against that concern we must balance whether some job, 
even one with a declining wage is better than no job these days. I 
appreciate the bill's intent and I want to work with you on the bill.
    I also have some concerns about H.R. 4592. Again, I agree with the 
intent to put veterans in good-paying jobs and I would like to work 
with Mr. Teague to do that in the most effective manner in the long 
term.
    Finally, I am also very interested to hear the testimonies on H.R. 
4469. It sounds to me like there are some technical legal issues 
involved and I believe we will hear a very good discussion by our 
witnesses, including our colleague, Mr. Turner, the bill's sponsor. I 
would note that, in my opinion, the ultimate goal of child custody law 
is to protect the best interests of the child, not the rights of the 
servicemember.
    I yield back.

                                 
                Prepared Statement of Hon. Harry Teague

    Madam Chairwoman and Ranking Member Boozman and fellow Subcommittee 
Members, thank you for allowing me to have the opportunity to speak on 
behalf of H.R. 4592. This bill addresses three different issues that 
are vitally important to my district and our country--energy, veterans 
and jobs.
    The latest survey of veterans unemployment by the Department of 
Labor shows the number of unemployed Iraq and Afghanistan veterans is 
now almost the same as the number of servicemembers currently deployed 
in support of those two wars. When the unemployment rate hit 9.7 
percent last fall, veterans of the Iraq and Afghanistan wars were 
unemployed at a rate of 11.3 percent.
    To combat the problem of unemployment among those who served our 
Nation in uniform, I drafted legislation to get energy jobs for 
veterans. Under my bill, those who fought for us abroad would be able 
to continue their work for the security of our country when they return 
home--by getting a job producing our energy right here in America.
    Energy independence is one of our Nation's foremost security 
imperatives, and there is no one more suitable for--or capable of--
filling energy jobs in America than our veterans. The national security 
and economic security of our Nation has been secured in large part by 
our veterans, and it can only be maintained by freeing us from foreign 
energy sources and putting our citizens back to work.
    The Energy Jobs for Veterans Act would direct the Secretary of 
Labor to award competitive grants to two States to establish programs 
to provide marketable energy job skills and employment experience and 
lasting employment in well paying energy jobs to veterans. The program 
would provide to an energy employer up to 50 percent, not to exceed 
$20,000, of the salary paid to a veteran for a year of apprenticeship 
and on-the-job training. Eligible energy employers are those involved 
in the energy efficient building, construction and retrofits 
industries; the renewable electric power industry; the biofuels 
industry; the energy efficiency assessment industry; the oil and gas 
industry; and the nuclear industry.
    I hope that my colleagues in this Committee and the House would 
agree that this bill brings together three different issues in a way 
that creates a winning opportunity for our country.
    I would like to thank the Chairwoman and Ranking Member again for 
allowing this bill to come forward. I would also like to thank the 
staff of the Economic Opportunity Subcommittee for their assistance, 
specifically Juan Lara, Javier Martinez and Orfa Torres.
    I would also like to thank Congressmen Perriello for co-sponsoring 
this legislation with me.
    Thank you once again Madam Chair. This concludes my statement, and 
I would be happy to answer any questions that my fellow Committee 
Members may have.

                                 
                Prepared Statement of Hon. John J. Hall,
        a Representative in Congress from the State of New York

    Chairwoman Herseth Sandlin, Ranking Member Boozman, and Members of 
the Subcommittee on Economic Opportunity, thank you for holding this 
hearing and allowing me to speak about my bill, H.R. 4203. My bill 
would require the Department of Veterans Affairs to direct deposit 
student veterans' GI education checks.
    Recently, too many student veterans have been left waiting for GI 
Bill educational benefits that they have applied for but have not yet 
received. The VA has authorized checks for those students but they are 
required to travel to one of the VA's regional benefit offices with a 
photo ID, a course schedule and an eligibility certificate before they 
can receive their benefits. In many cases, this is a time-consuming, 
expensive and unnecessary burden.
    Veterans in my district, in the Hudson Valley of New York, are 
currently required to travel to lower Manhattan to collect emergency 
education benefits. For an Orange County Community College student 
traveling from Middletown, the roundtrip cost to pick up their 
education benefits would be $35 and take more than 4 hours and 30 
minutes. For a Marist College student traveling from Poughkeepsie, the 
roundtrip cost to pick up their education benefits would be more than 
$45 and take more than 4 hours and 15 minutes. The New York regional 
benefit office is open 8:30 am to 4:00 pm Monday through Friday. 
Getting to lower Manhattan during the hours the VA's office is open 
means students will have to skip work or class. Requiring veterans to 
travel from their homes to a Regional Office in order to receive their 
benefit creates an onerous and unnecessary burden.
    These veterans have already applied for the education benefit, and 
are in the VBA's system. The fastest method to deliver these emergency 
checks would be via direct deposit to their bank accounts, the same way 
all other VBA benefits are distributed to eligible veterans. If 
necessary, the VBA could require that veterans fax in appropriate 
documentation, allowing the funds to be released.
    The current process is an unnecessary hassle and we should do 
everything possible to help these veterans get the education they need 
to succeed after they have served our country so honorably.
    In closing, I appreciate your consideration of this bill and ask 
for your support to ensure that student veterans are able to receive 
the benefits they have earned and deserve. I look forward to answering 
any questions you might have about my bill. Again, thank you for 
holding this hearing and allowing me to testify.

                                 
               Prepared Statement of Hon. Adam H. Putnam,
         a Representative in Congress from the State of Florida

    Madam Chair,
    I appreciate the opportunity to provide testimony before your 
Committee about the Test Prep for Heroes Act (H.R. 3948). This is bi-
partisan legislation that I introduced along with my colleague from the 
Florida delegation, Congressman Ron Klein. Twenty seven of our 
colleagues have joined us in cosponsoring this bill.
    In crafting this legislation, we understand the important role 
Congress has in meeting the needs of those that have so bravely served 
America in uniform across the globe. While we acknowledge that there 
may be greater needs on the horizon for our Nation's veterans, we 
believe that the Test Prep for Heroes Act will help to provide an 
important benefit to those men and women in uniform that return home 
with dreams of attending college, law school, medical school, or any 
other advanced education.
    Under current law--through the Post-9/11 GI Bill--veterans are 
entitled to a reimbursement of up to $2,000 for the costs of licensing 
and certification tests. The law, however, provides no reimbursement 
for preparatory classes that are often needed to better prepare for the 
material covered on those tests.
    Therefore, our bill would simply allow the $2,000 reimbursement to 
be used for one test and one preparatory course. We do not change the 
overall funds available to each veteran, but simply allow them to be 
reimbursed for a preparatory class to help cover subject matter they 
may not have been exposed to for years.
    It is important to note that the Montgomery GI Bill does allow for 
a reimbursement of $2,000 for preparatory courses and tests. The Test 
Prep for Heroes Act would help to provide veterans returning home now 
with the same benefit available to those that served before them.
    Madam Chair, a veteran that served in Iraq or Afghanistan has the 
ability to be reimbursed for the cost of an SAT if he or she is wanting 
to attend college. As you know, the costs of the tests themselves are 
minimal. It is, however, the costs of a prep class--a comprehensive 
approach to better understanding material that hasn't been covered for 
years--that is out of reach for many of our young veterans.
    Congressman Klein and I introduced this legislation to provide our 
young veterans with the best possible tools to succeed. We are not 
asking for more money to be allocated to each veteran or even a 
substantial change in law. We are simply asking that we better equip 
these young men and women by providing them access to courses that will 
help them achieve better results in their dreams to receive a higher 
education.
    Again, I greatly appreciate this opportunity and your focus on 
better serving our Nation's veterans. I look forward to working with 
you and the other Members of the Committee to ensure that the 
appropriate education benefits are delivered America's veterans in a 
common-sense and timely manner.
    Thank you.

                                 
                 Prepared Statement of Hon. Joe Sestak,
      a Representative in Congress from the State of Pennsylvania

    Chairwoman Sandlin, Ranking Member Boozman, and distinguished 
Members of the Subcommittee, thank you for the opportunity to appear 
before you today to discuss my bill, H.R. 3813, the Veterans Training 
Act.
    Passage of the Post-9/11 GI Bill marked one of the highlights of my 
first term as a United States Congressman. While I strongly opposed the 
war in Iraq, I have always voted to provide our brave men and women who 
wear the Cloth of this Nation the tools they need to succeed, both on 
the battlefield and in returning to civilian life. As a former Admiral, 
who served in the United States Navy for 31 years, I have no higher 
priority than the welfare of our Veterans.
    The Post-9/11 GI Bill is the most extensive educational assistance 
program authorized since the original GI Bill was signed into law in 
1944, and it is a vital tool for our Nation's Veterans as they 
transition from military to civilian careers. The maximum benefit 
allows every eligible Veteran, servicemember, reservist, and National 
Guard member an opportunity to receive an in-state, undergraduate 
education at a public institution at no cost. Provisions of the program 
include payments for tuition and fees, housing, and a books and 
supplies stipend.
    Particularly in these challenging economic times, this bill 
provides our Veterans the opportunity to realize the futures they put 
on hold in order to serve our Nation. Additionally, it is a just reward 
for their heroic service. Unlike in wars of the past, our 
servicemembers in the field in Iraq and Afghanistan go outside the wire 
every day. The trauma and stress inflicted upon our brave soldiers, 
through asymmetrical threats such as Improvised Explosive Devices 
(IEDs), have led to record levels of military suicides, Traumatic Brain 
Injuries (TBIs), and instances of Post-Traumatic Stress Disorder 
(PTSD). The situation has only been aggravated by lengthy deployments 
and insufficient dwell time.
    These men and women were there for us; we need to be there for 
them. Passage of the Post-9/11 GI Bill was a monumental achievement; 
however, as with so many other programs, there is room for improvement. 
Currently, students attending postsecondary education institutions that 
do not grant associate or higher degrees, such as vocational-technical 
schools, career schools, and apprenticeship programs, are not eligible 
for benefits under the Post-9/11 GI Bill. This is unfair, because these 
kinds of programs have always been included in the traditional 
Montgomery GI Bill.
    My bill, H.R. 3813, would fix this inequity and allow students to 
participate in the postsecondary educational program of their choice. 
Many of our returning Veterans may want to pursue a trade, such as 
truck driving, automobile or aviation maintenance, cosmetology, 
nursing, or construction. These Veterans may have families to support, 
military skills they wish to transition into a civilian career, or they 
may simply wish to forgo traditional college education in favor or a 
shorter, more entrepreneurial program. Whatever their motivation, there 
is no reason to deny these brave men and women the maximum flexibility 
in determining how to utilize their hard-won--and well-deserved--
benefits. They should be permitted to pursue short-term certificate and 
diploma programs--and thus, their next career--at the institutions of 
their choice, which is exactly what my bill would authorize.
    Finally, it is worth noting that since all institutions and 
programs under the GI Bills must be certified by the State Approving 
Agency (SSA), there is always a detailed review by a government agency 
to ensure that all State and Federal requirements are complied with. To 
that end, this session I have also introduced H.R. 4571, the ``GI Bill 
Enhancement Act of 2010,'' to raise the cap on Department of Veteran 
Affairs funding for SSAs, which has remained stagnant since the passage 
of the Post-9/11 GI Bill. This measure would improve implementation of 
the Post-9/11 GI Bill, particularly if H.R. 3813 is signed into law and 
certification of non-degree granting institutions becomes mandatory.
    H.R. 3813 is a common-sense measure that would expand one of our 
Nation's proudest legislative achievements by providing parity between 
the Post-9/11 GI Bill and its previous incarnations. It has been 
endorsed by the National Association of State Approving Agencies and 
the Pennsylvania Association of Private School Administrators.
    The original post-World War II GI Bill did not just help our 
Veterans. It was one of this Nation's most effective investments in our 
citizens. It helped create a generation of innovators, pioneers and 
artists, as well as a workforce that remains unmatched in the world. I 
expect nothing less from the Post-9/11 GI Bill and consider it our 
duty, to our Veterans and our Nation, to make it the best it can be. I 
urge the Committee to report H.R. 3813 favorably at the earliest 
opportunity. Thank you, Madam Chairwoman.

                                 
                 Prepared Statement of Hon. Adam Smith,
       a Representative in Congress from the State of Washington

    Madame Chairwoman, Ranking Member Boozman, and distinguished 
Members of the Subcommittee, thank you for the opportunity to testify 
before you today in support of the Military Family Leave Act of 2009.
    As someone who has the privilege of representing thousands of 
military personnel and their families, I have seen firsthand the 
dedication and degree of professionalism that our men and women in 
uniform put into their mission. Providing military personnel with the 
benefits, treatment, and respect they deserve in exchange for their 
service to our Nation has, and should continue to be, a priority for 
Congress. I also recognize the unique and challenging nature of 
military life and the impacts it has on our military's families.
    As Members may be aware, section 585 of the Fiscal Year 2008 
National Defense Authorization Act (P.L. 110-181) amended the Family 
and Medical Leave Act (FMLA) to permit the children, parents, or next 
of kin of military personnel to take up to 26 work-weeks of leave to 
care for a covered servicemember recovering from a serious injury or 
illness incurred while serving on active duty. In addition, the 
amendment permits an employee to take up to 12 work-weeks of FMLA leave 
for certain qualifying exigencies arising out of a covered military 
member's active duty status, or notification of an impending call or 
order to active duty status, in support of a contingency operation. 
These new military family leave entitlements became effective on 
January 16, 2009.
    While the amendment to FMLA has allowed numerous military families 
to take time away from work to be with their loved ones, current laws 
do not afford the same protection to individuals whose employment 
situation is not eligible for FMLA benefits. This includes employees 
who have worked for an employer for less than 12 months, have worked 
less than 1,250 hours over the previous 12 months, or work for an 
employer who employs less than 50 employees in a 75 mile radius. As a 
significant number of military spouses work for small businesses, work 
part-time to balance work and family needs, or have less than 1 year 
with a company due to recent moves or reassignments, many are not 
eligible for protected leave under current law.
    To address this issue and to ensure that military families have the 
flexibility to take time off of work to address issues that arise over 
the course of the deployment of a loved one, I introduced the Military 
Family Leave Act of 2009. This legislation would ensure that the 
spouse, children, or parents of a member of the military are able to 
take up to 2 weeks of unpaid leave when the servicemember receives a 
notification or order to active duty in support of a contingency 
operation, or is deployed in connection with such an operation.
    The Military Family Leave Act is modeled after a provision that was 
approved by the Washington State Legislature and took effect on June 
12, 2008. The Oregon State Legislature also passed a similar law, which 
took effect on June 25, 2009. This effort was led Stacy by Bannerman, a 
former constituent of mine and the spouse of a member of the Oregon 
National Guard. I'd like to take this opportunity to briefly recognize 
Ms. Bannerman for her work on behalf of military families and ask 
consent that her written statement in support of the Military Family 
Leave Act of 2009 be included in the record.
    With that, I again thank the Committee for the opportunity today in 
support of the Military Family Leave Act of 2009 and look forward to 
your question.

                                 
             Prepared Statement of Hon. Michael R. Turner,
          a Representative in Congress from the State of Ohio

    Chairwoman Herseth-Sandlin and Chairman Boozman:
    I would like to thank you for your leadership and consideration of 
this important bill, H.R. 4469.
    H.R. 4469 will amend the Servicemembers Civil Relief Act to protect 
the custody arrangements of servicemembers during their deployment as 
well as prohibit the use of deployment as a factor in determining the 
best interests of a child in custody cases.
    Madame Chair, the stories are too clear and too frequent: a 
servicemember, many times a single mom, is called to serve her country 
and is given a short time to wind down her personal business and 
deploy. She makes temporary custody arrangements for her children 
usually with her ex-spouse, sometimes in the form of a non-binding 
family care plan. Then, upon return from deployment, goes to pick up 
her child, and finds out that her ex-spouse won't relinquish custody 
without a court order.
    Sometimes the story is even worse: A servicemember in fighting for 
custody in court has their custodial rights terminated by a judge 
simply because of ``deployment'' or even ``possibility of deployment''. 
Deployed parents, serving our country, in places like Afghanistan or 
Iraq, need protections from courts disrupting these established family 
arrangements. We cannot have one branch of government asking American 
men and women to serve, while another branch of government punishes 
them for their service.
    In the absence of consistent guidance, some States have become 
aware of this issue and some have taken action. In 2005, the State of 
Michigan passed a law to provide protection provisions to military 
personnel similar to the language introduced in this bill. I commend 
those States who have taken action on this issue. However, almost half 
of all States have not passed protections for military parents, and for 
States that have, their protections vary, if they even exist at all. A 
national standard is required.
    This is why I have introduced H.R. 4469 to amend the SCRA to 
provide custody protections for military parents. Madame Chair, our men 
and women serve in a Federal military that is regulated by the Federal 
Government. These men and women sometimes reside in one State, but are 
stationed in another State, have marriage licenses in one State, 
divorces in another. Disputing custody arrangements should not be an 
opportunity to shop for the best forum to take a child away from a 
military parent.
    H.R. 4469 has passed the House on 4 separate occasions--3 times as 
part of the National Defense Authorization Act, and once as a stand-
alone bill. As a stand-alone bill, this legislation was passed by voice 
vote on suspension with support from the Chairman of this Committee. 
Additionally, every single member of the House Armed Services 
Committee, both Democrat and Republican, has expressed their support 
for this legislation. Through the years, I have tried to resolve any 
concerns with this legislation and have inserted language that 
prohibits a Federal right of action for custody cases, and expressly 
allows States to create an even higher standard of protection for 
servicemembers.
    Much is asked of our servicemembers and mobilizations can disrupt 
and strain relationships at home. This basic protection is needed to 
provide them peace of mind that the courts will not undertake judicial 
proceedings concerning their established custody rights while they are 
serving valiantly in contingency operations. Even one of these stories 
is one too many, and is justification to take action. A parent's 
service to their country should not be used as a weapon against them. 
This amendment protects them and it protects their children.
    Again, I thank you Chairwoman Herseth Sandlin (SD) and Ranking 
Member Boozman (AR).
    I yield back the balance of my time.

                               __________
                                              Air Force Association
                                                      Arlington, VA
                                                      July 28, 2009

The Honorable Michael R. Turner
1740 Longworth House Office Building
Washington, D.C. 20515

Dear Congressman Turner:

    The Air Force Association, a 501(c)(3) non-profit organization 
representing approximately 125,000 current and former Airmen and their 
families, is writing to express our support for protecting the child 
custody rights of deployed servicemembers.
    As you know, this is a difficult issue. We all recognize the 
competing interests of protecting military children while honoring the 
sacrifices of those who wear the uniform. Both are extremely important 
to our Nation and its families. For these reasons, we support the 
common-sense measures related to child custody protection in the House-
passed version of the FY 2010 Defense Authorization Bill. Section 584 
contains provisions that balance these needs by granting courts limited 
authority to temporarily change child custody orders while 
servicemembers are deployed. When they return, any changes are 
rescinded unless circumstances exist that are unrelated to ongoing 
military service within the family. Under these rules, courts will not 
be permitted to consider military service a factor while deliberating 
any permanent child custody arrangements. Because the legislation does 
not create a Federal right of action, nor does it inhibit the authority 
of States to enact stricter guidelines if they so choose, we believe 
States' rights are adequately protected. Though additional challenges 
may persist, this set of provisions strikes a balance between the 
safety and well-being of children and the need to respect military 
service.
    The Air Force Association strongly supports this important step in 
protecting our servicemembers. It is of the highest importance to 
please contact Shane Barker in our Office of Government Relations at 
(703) 247-5800 ext. 4842 if we can further assist in achieving this 
important goal.

            Sincerely,

                                                    Michael M. Dunn
                                                  President and CEO
    [Identical letters were sent to Hon. Ike Skelton, Hon. Howard P. 
McKeon, House Armed Services Committee, and Hon. Carl Levin, Hon. John 
McCain, Senate Armed Services Committee.]

                               __________
                              Association of the United States Army
                                                     Arlington, VA.
                                                     26 August 2009

The Honorable Ike Skelton
Chair
Committee on Armed Services
2206 Rayburn House Office Building
Washington, DC 20515

Dear Mr. Chairman:

    On behalf of the more than 105,000 members of the Association of 
the United States Army, I write to thank you and the Armed Services 
Committee for your efforts to protect the interests of servicemembers 
in the FY 2010 National Defense Authorization Bill.
    We are grateful to both chambers for their support of increased end 
strengths, a 3.4 percent military pay raise, TRICARE coverage for 
``gray area'' Guard and Reserve retirees, and additional initiatives to 
improve conditions and benefits for wounded warriors and their families 
and caregivers.
    In conference we request that you consider the following:
End Strength
    AUSA very strongly supports the Senate provision that would 
authorize a 30,000 end strength increase beginning in FY 2010, rather 
than waiting until FY 2011. We believe these additional troops are 
needed as soon as possible to ease operations tempo stresses on members 
and families and better meet the needs of commanders in the field.
Concurrent Receipt
    AUSA very strongly supports the House provision phasing out the 
disability offset to military retired pay for all members whose 
service-caused illnesses and injuries forced their medical retirement 
from active service. This plan was a key feature of the President's 
defense budget submission, and AUSA urges its retention in the final 
Defense Authorization Act.
Survivor Benefit Plan (SBP)
    AUSA very strongly supports the Senate provision that would end 
deduction of Dependency and Indemnity Compensation (DIC) from SBP 
annuities when the member's death is service-caused. Congressional 
leaders have repeatedly cited fixing this ``widow's tax'' as a top 
priority, and AUSA believes aggressive action is essential to 
substantively address that commitment.
TRICARE Fees
    AUSA very strongly urges retention of Section 706 of the Senate 
bill as a ``Sense of Congress'' provision in the final bill. This 
section acknowledges that military health care is a primary offset for 
the unique demands and sacrifices inherent in a military career, that 
career servicemembers have earned coverage levels commensurate with 
that sacrifice, that much of defense health cost growth reflect 
readiness requirements that are a ``cost of doing business'' for the 
Defense Department, and that the Department can and should pursue a 
range of other options to reduce health costs and rather than seeking 
to impose large fee increases on military beneficiaries. This statement 
of congressional intent provides a vital foundation for discussion on 
this important benefit issue.
Reserve Retirement Age Credit for Post-9/11 Active Service
    AUSA very strongly supports the Senate provision that would provide 
retroactive credit for active service since September 11, 2001 for the 
purpose of reducing the Reserve retirement age. Current law authorizes 
a 3-month reduction in the standard retirement age for each cumulative 
90 days served on active duty, but credits only active service rendered 
since January 28, 2008.
Military Parent Custody Rights
    AUSA very strongly supports the House provision that would help 
protect the custody rights of military parents while deployed.
Flexible Spending Accounts (FSA)
    AUSA very strongly urges retention of Senate section 658 as a 
``Sense of Congress'' provision in the final bill. We are perplexed at 
the continued resistance of the Department to providing currently 
serving uniformed services beneficiaries the same FSA option afforded 
all other Federal and corporate employees. No one has greater need for 
dependent care than servicemembers subject to frequent and extended 
deployments. Thousands of Service families experience significant out-
of-pocket expenses for dental care, eyeglasses and contact lenses, 
medication copayments, over-the-counter medications and more. AUSA 
urges the Committees to pursue every possible effort to end the current 
discrimination against servicemembers on FSA eligibility.
    Thank you for the opportunity to provide AUSA's views on these 
important issues.

            Sincerely,

                                                 GORDON R. SULLIVAN
                                               General, USA Retired

GRS/rmw

                               __________

                  Reserve Officers Association of the United States
                                                    Washington, DC.
                                                    August 10, 2009

The Honorable Howard P. McKeon
United States House
Committee on Armed Services
Washington, D.C. 20515

Dear Ranking Member McKeon:

    I am writing on behalf of the Reserve Officers Association of the 
United States, chartered by Congress with a membership of 65,000, to 
express our support for protecting the child custody rights of deployed 
servicemembers in the House's version of the National Defense 
Authorization Act (NDAA), H.R. 2647, Section 584.
    This is, as you understand, a critical and complex issue due to the 
contending interests to protect military children just as we honor 
servicemembers who sacrifice a great deal, and both are vitally 
important to our Nation. In favor of these reasons we support the much 
needed actions associated with the child custody protection section in 
the House Fiscal Year 2010 NDAA. This section provides partial 
authority to courts to protect children in cases that necessitate 
temporary custody but also secures servicemembers' rights while they 
are deployed on contingency operations. The legislation does not 
establish Federal right of action or hinder States' authority. The 
provision affords the desired balance between children's welfare and 
recognizing military service.
    The Nation that is able to bail out numerous businesses should do 
the right thing for those who are putting their lives and their 
families' well-being at risk to defend their fellow Americans. Our 
citizen-warriors are not asking for a handout, only to protect their 
families who endure arduous and dangerous service to the country.
    The Reserve Officers Association strongly supports the House's 
child custody protection provision and requests that you find the means 
to adopt it in the final version of the FY 2010 NDAA.

            Sincerely,

                                                      Paul T. Kayye
                                      Rear Admiral, MC, USNR (Ret.)
                                                 National President

                               __________
                                      Congress of the United States
                                                    Washington, DC.
                                                      June 16, 2009

Dr. Robert M. Gates
Secretary of Defense
1000 Defense Pentagon
Washington, DC 20301-1000

Dear Secretary Gates:

    We appreciate your interest stated during the May 13, 2009 House 
Armed Services Committee hearing to protect child custody rights for 
our men and women in uniform.
    As you know, legislative language addressing this issue has already 
passed the House of Representatives three times. First, as Section 577 
of the House passed FY 2008 National Defense Authorization Act (H.R. 
1585). Additionally, portions of this legislation were also included in 
Section 584 of the final House passed version of the FY 2008 NDAA (H.R. 
4986). Finally, last year this language passed the House as a stand-
alone bill (H.R. 6048) and was attached to the FY 2009 NDAA. Nearly 60 
members from both sides of the aisle signed on to H.R. 6048 as co-
sponsors.
    Today, the House Armed Services Committee passed their FY 2010 
NDAA. This bill contains similar language that would protect custody 
rights for military parents. As we move forward with the current 
legislative session and consideration of the FY 2010 NDAA, we look 
forward to your continued interest in addressing this important issue 
to ensure that our men and women in uniform have their parental rights 
protected.

            Sincerely,
                           Michael R. Turner
                           Member of Congress


Rob Bishop                                 John Kline
Member of Congress                         Member of Congress

Mike Rogers (AL)                           Frank LoBiondo
Member of Congress                         Member of Congress

Joe Wilson                                 Jeff Miller
Member of Congress                         Member of Congress

J. Randy Forbes                            Walter B. Jones
Member of Congress                         Member of Congress

Roscoe G. Bartlett                         Howard P. ``Buck'' McKeon
Member of Congress                         Member of Congress

Doug Lamborn                               Robert J. Wittman
Member of Congress                         Member of Congress

Mary Fallin                                Duncan Hunter
Member of Congress                         Member of Congress

Trent Franks                               John Fleming
Member of Congress                         Member of Congress

David Loebsack                             Neil Abercrombie
Member of Congress                         Member of Congress

Mike Coffman                               Ellen O. Tauscher
Member of Congress                         Member of Congress

Joe Courtney                               K. Michael Conaway
Member of Congress                         Member of Congress

W. Todd Akin                               Patrick J. Murphy
Member of Congress                         Member of Congress

Jim Cooper                                 Jim Marshall
Member of Congress                         Member of Congress

Brad Ellsworth                             Gene Taylor
Member of Congress                         Member of Congress

Martin Heinrich                            Frank Kratovil
Member of Congress                         Member of Congress

Robert A. Brady                            Eric Massa
Member of Congress                         Member of Congress

Madeleine Z. Bordallo                      Loretta Sanchez
Member of Congress                         Member of Congress

Larry Kissell                              Silvestre Reyes
Member of Congress                         Member of Congress

James R. Langevin                          Glenn C. Nye
Member of Congress                         Member of Congress

Solomon P. Ortiz                           Tom Rooney
Member of Congress                         Member of Congress

Bobby Bright                               Dan Boren
Member of Congress                         Member of Congress

Marc Thornberry                            Carol Shea-Porter
Member of Congress                         Member of Congress

Robert E. Andrews                          Henry C. ``Hank'' Johnson,
Member of Congress                          Jr.
                                           Member of Congress

Susan A. Davis                             Todd Russell Platts
Member of Congress                         Member of Congress

Chellie Pingree                            Scott Murphy
Member of Congress                         Member of Congress

Niki Tsongas                               John M. Spratt, Jr.
Member of Congress                         Member of Congress

Gabrielle Giffords                         Joe Sestak
Member of Congress                         Member of Congress

Vic Snyder                                 Rick Larsen
Member of Congress                         Member of Congress

Cathy McMorris Rodgers                     Adam Smith
Member of Congress                         Member of Congress

Bill Shuster                               Mike McIntyre
Member of Congress                         Member of Congress



                               __________

                                             The Military Coalition
                                                    Alexandria, VA.
                                                    August 26, 2009


The Honorable Ike Skelton                  The Honorable Howard P.
                                            McKeon
Chairman                                   Ranking Member
Committee on Armed Services                Committee on Armed Services
United States House of Representatives     United States House of
                                            Representatives
Washington, DC 20515                       Washington, DC 20515



Dear Mr. Chairman and Mr. Ranking Member:

    The Military Coalition (TMC), a consortium of uniformed services 
and veterans associations representing more than 5.5 million current 
and former servicemembers and their families and survivors, is grateful 
to you and the Armed Services Committee for your efforts to protect the 
interests of servicemembers in the FY 2010 National Defense 
Authorization Bill.
    We are grateful to both chambers for their support of increased end 
strengths, a 3.4 percent military pay raise, TRICARE coverage for 
``gray area'' Guard and Reserve retirees, and additional initiatives to 
improve conditions and benefits for wounded warriors and their families 
and caregivers.
    The attached matrix highlights Coalition recommendations concerning 
selected differences between the House- and Senate-passed bills. 
Several priorities merit special mention:
End Strength
    The Coalition very strongly supports the Senate provision that 
would authorize a 30,000 Army end strength increase beginning in FY 
2010, rather than waiting until FY 2011. We believe these additional 
troops are needed as soon as possible to ease operations tempo stresses 
on members and families and better meet the needs of commanders in the 
field. We appreciate the Committees' action in reversing force cuts for 
the active Navy and Air Force, but remain concerned that the Nation's 
dramatically increased reliance on the Reserve components merits 
increases in those components as well.
Concurrent Receipt
    The Coalition very strongly supports the House provision phasing 
out the disability offset to military retired pay for all members whose 
service-caused illnesses and injuries forced their medical retirement 
from active service. This plan was a key feature of the President's 
defense budget submission, and the Coalition urges its retention in the 
final Defense Authorization Act.
Survivor Benefit Plan (SBP)
    The Coalition very strongly supports the Senate provision that 
would end deduction of Dependency and Indemnity Compensation (DIC) from 
SBP annuities when the member's death is service-caused. We recognize 
that there were some very modest adjustments in the tobacco legislation 
earlier this year, but those would bring no relief at all until FY 
2014. Congressional leaders have repeatedly cited fixing this ``widow's 
tax'' as a top priority, and the Coalition believes aggressive action 
is essential to substantively address that commitment.
Reserve Retirement Age Credit for Post-9/11 Active Service
    The Coalition very strongly supports the Senate provision that 
would provide retroactive credit for active service since September 11, 
2001 for the purpose of reducing the Reserve retirement age. Current 
law authorizes a 3-month reduction in the standard retirement age for 
each cumulative 90 days served on active duty, but credits only active 
service rendered since January 28, 2008. Hundreds of thousands of Guard 
and Reserve members served one or more combat tours between 2001 and 
2008, and this and other qualifying service during the current conflict 
merits equal retirement-age credit. The Coalition believes this is the 
least America can do to recognize the truly extraordinary demands 
imposed on Guard and Reserve forces and families.
Mental Health Assessments
    The Coalition very strongly supports the Senate provision requiring 
person-to-person mental health assessments for servicemembers deployed 
in support of a contingency operation. We believe this is the single 
most important initiative in helping to detect and address PTSD, 
suicidal tendencies and other potential service-caused behavioral 
problems. The Coalition believes limiting the initiative to a 
demonstration program would be insufficient to meet this pressing need.
TRICARE Fees
    The Coalition appreciates the work of the Committees, in concert 
with the President, to protect the earned benefit of TRICARE from the 
imposition of higher fees, copays, or deductibles and we very strongly 
urge retention of Section 706 of the Senate bill as a ``Sense of 
Congress'' provision in the final bill. This section acknowledges that 
military health care is a primary offset for the unique demands and 
sacrifices inherent in a military career, that career servicemembers 
have earned coverage levels commensurate with that sacrifice, that much 
of defense health cost growth reflect readiness requirements that are a 
``cost of doing business'' for the Defense Department, and that the 
Department can and should pursue a range of other options to reduce 
health costs and rather than seeking to impose large fee increases on 
military beneficiaries. This statement of congressional intent provides 
a vital foundation for discussion on this important benefit issue.
Absentee Voting Rights
    The Coalition very strongly supports the Senate provisions to 
protect military absentee voting rights. Hundreds of thousands of 
military and family members' votes have not been counted in recent 
elections because of absentee ballot problems. It is long past time for 
enactment of the specific initiatives outlined in the Senate 
provisions.
Flexible Spending Accounts (FSA)
    The Coalition very strongly urges retention of Senate section 658 
as a ``Sense of Congress'' provision in the final bill. We are 
perplexed at the continued resistance of the Department to provide 
currently serving uniformed services beneficiaries the same FSA option 
afforded all other Federal and corporate employees. No one has greater 
need for dependent care than servicemembers subject to frequent and 
extended deployments. Thousands of Service families experience 
significant out-of-pocket expenses for dental care, eyeglasses and 
contact lenses, medication copayments, over-the-counter medications and 
more. The Coalition urges the Committees to pursue every possible 
effort to end the current discrimination against servicemembers on FSA 
eligibility.
Comparison of Military and Private Sector Pay and Benefits
    The Coalition is concerned that comparison of military and private 
sector total compensation packages, as proposed in Senate section 602, 
has little validity absent a similarly detailed comparison of military 
and private sector working conditions. Retirement, health, and other 
institutional benefits are essential offsets to the extraordinary 
demands and sacrifices of a service career. Inclusion of the value of 
such benefits in a pay comparability equation is not a proper 
application, absent quantification of liability for repeated family 
separations, extended overtime without extra pay, frequent moves that 
disrupt spousal careers and children's education, risk of death or 
incapacitation, and the forfeiture of many personal freedoms most 
Americans take for granted (e.g., inability to resign at will and 
risking a felony conviction for refusing an order). It would count the 
cost of Combat-Related Special Compensation while ignoring the cost to 
the member of incurring the disability. Compensation value is cash and 
benefits received divided by the service and sacrifice required to earn 
it. If total compensation is 10 percent higher but requires 50 percent 
more sacrifice, the numerator comparison alone is highly misleading.
    Thank you for the opportunity to provide the Coalition's views on 
these important issues.

            Sincerely,

                                             The Military Coalition
(Signatures enclosed)

Attachment: TMC Recommendations on House/Senate Differences [The 
attachment is being retained in the Committee files.]

CC: Armed Services Committee Members

Michael M. Dunn,                           Vernon Leubecker
Air Force Association                      Marine Corps Reserve
                                            Association

Richard M. Dean, Air                       Norb Ryan, Jr.
Force Sergeants Association                Military Officers Association
                                            of America

Patricia M. Murphy                         Jeff Roy
Air Force Women Officers Associated        Military Order of the Purple
                                            Heart

Patrick Nixon                              William M. Matz, Jr.,
American Logistics Association             National Association for
                                            Uniformed Services

James B. King                              Mary Scott
AMVETS                                     National Military Family
                                            Assn.

Rodney Wolfe                               Gilbert H. Bolton
Army Aviation Assn. of America             National Order of Battlefield
                                            Commissions

George Anderson                            Stephen Sandy
Association of Military Surgeons of the    Naval Enlisted Reserve Assn.
 United States

William Loper                              Gene Overstreet
Association of the U.S. Army               Non Commissioned Officers
                                            Association of the United
                                            States of America

Mark Hardy                                 Lani Burnett
Association of the United States Navy      Reserve Enlisted Assn. of the
                                            U.S.

Gerard Farrell                             COL D.L. Patillo
Commissioned Officers Assn. of the U.S.    Reserve Officers Association
 Public Health Service, Inc.

Edward Swift                               Mason Ahearn
Chief Warrant and Warrant Officers         Society of Medical
 Association, U.S. Coast Guard              Consultants to the Armed
                                            Forces

Michael Cline                              Gary R. Pollitt
Enlisted Association of the National       The Military Chaplains
 Guard of the U.S.                          Association of the USA

Joe Barnes                                 Deirdre Holleman
Fleet Reserve Assn.                        The Retired Enlisted Assn.

Ruth Miller                                Tom Scaramastro, USCG
Gold Star Wives of America, Inc.           Chief Petty Officers
                                            Association

Paul Rieckhoff                             Don Hess
Iraq and Afghanistan Veterans of America   U.S. Army Warrant Officers
                                            Association

Robert Zweiman                             Robert Wallace
Jewish War Veterans of the USA             Veterans of Foreign Wars of
                                            the U.S.

Michael Blum
Marine Corps League



                               __________
                  Copyright  2008 Whittier Law Review
                          Whittier Law Review
                              Summer, 2008
                        29 Whittier L. Rev. 857
    LENGTH: 13116 words

    NOTE AND COMMENT: CHILD CUSTODY PROTECTIONS IN THE SERVICEMEMBERS 
CIVIL RELIEF ACT: CONGRESS ACTS TO PROTECT PARENTS SERVING IN THE ARMED 
FORCES

    NAME: Christopher Missick*

    BIO: * Christopher Missick is a Sergeant in the U.S. Army Reserve 
and was deployed from 2004-2005 with the 319th Signal Battalion in 
support of Operation Iraqi Freedom. He is a graduating student of 
Whittier Law School. ``I want to thank my family for their unending 
support in all my pursuits, personal and professional. I would like to 
extend my gratitude to the Whittier Law Review editors and members that 
prepared this article for publication, including: April Szabo, Editor-
in-Chief; Anna Barvir, Executive Editor; Tricia Engelhardt, Executive 
Editor; Krystina Tran and Peter Watson, Article Editors; and Melissa 
DuChene, Robert Beckerman, Sarah Hedberg, Graham Bentley, Sascha Topa 
and Afshin Mozaffari, cite checkers extraordinaire.''
SUMMARY:

    . . . For instance, popular tax and credit protections remained in 
the SCRA, but it provided for greater legal and financial support for 
the families of soldiers, and ``expanded the definition of `court' to 
include `an administrative agency of the United States or of any 
State.' '' Although these changes were important, child custody 
protection, one of the most significant changes necessary, was 
overlooked. . . . ``In reviewing the cases it becomes clear that 
paternity, divorce and post-divorce cases comprised the highest 
percentage of litigation which arose under the SSCRA.'' Due to 
deployments to Afghanistan and Iraq, the rate of divorce has continued 
to rise among servicemembers, leaving them vulnerable to losing custody 
of their children while deployed. . . . On June 8, 2005, Amber, counsel 
for Levi, and a trial judge signed an order amending the custody 
arrangement, subsequently awarding custody of the child to Starleen, 
and permitting reasonable visitation to Amber. . . . Congressional 
Amendment A spate of news articles, television interviews, and angry 
editorials, inspired in part by the story of Eva Crouch, led 
Representative Mike Turner to act to introduce an amendment to the SCRA 
that would protect the rights of military parents during deployments. . 
. . Typical of America's ``laboratories of democracy,'' State 
governments have been enacting child custody protections for 
servicemembers for most of the decade; the result has been an effective 
patchwork of laws in States such as Michigan, Kentucky, and Arizona. . 
. . If courts liberally construe the protections provided to 
servicemembers by the act, Congressman Turner's amendments will likely 
ensure that only temporary custody arrangements are made while 
servicemembers are deployed.
TEXT:

    [*857]

    I.  Introduction

    In May 2007, an Associated Press article documenting the large 
numbers of post-9/11 military servicemembers who lost custody of their 
children, due in part to mobilizations and deployments, set off a 
flurry of discussions, debates, and legislative action.\1\ The measures 
taken by State governments meant slow but steady progress in protecting 
parental rights of servicemembers, but also highlighted the inadequate 
protections provided in Federal legislation known as the Servicemembers 
Civil Relief Act (SCRA).\2\
---------------------------------------------------------------------------
     \1\ See MSNBC, Deployed Troops Fight for Lost Custody of Kids, 
Children taken from single parents in uniform when they are mobilized, 
http://www.msnbc.msn.com/id/18506417/ (last accessed Apr. 21, 2008).
     \2\ 50 U.S.C. app. Sec. Sec. 501-96 (Westlaw current through 
P.L.110-199).
---------------------------------------------------------------------------
    In 2003, President Bush signed Public Law 108-189,\3\ ushering in a 
new era of civil protections for America's armed forces under the 
SCRA.\4\ The SCRA was an extensive modernization of the Soldiers and 
Sailors Civil Relief Act of 1940 (SSCRA),\5\ a law left largely 
untouched since World War II.\6\ The SCRA provided many new civil 
relief measures for deployed military personnel, while retaining some 
of the most popular elements of the SSCRA.\7\ For instance, popular tax 
and credit protections remained in the SCRA, but it provided for 
greater legal and financial support for the families of soldiers, and 
``expanded the definition of `court' to include `an administrative 
agency of the [*858] United States or of any State.' '' \8\ Although 
these changes were important, child custody protection, one of the most 
significant changes necessary, was overlooked.
---------------------------------------------------------------------------
     \3\ Pub. L. No. 108-189, Sec. 1, 117 Stat. 2835 (2003); John T. 
Meixell, Notes from the Field: Servicemembers Civil Relief Act Replaces 
Soldiers' and Sailors' Civil Relief Act, 2003 Army Law. 38 (Dec. 2003).
     \4\ Meixell, supra n. 3.
     \5\ Pub. L. No. 861, 54 Stat. 1178 (1940); Meixell, supra n. 3.
     \6\ Meixell, supra n. 3.
     \7\ See id.
     \8\ Id. at 38-41.
---------------------------------------------------------------------------
    A distressing loophole in the SCRA regarding parental protections 
was exposed as servicemembers lost custody of their children during 
prolonged military deployments.\9\ With an increasing reliance on 
military reservists and National Guard soldiers for service in theaters 
of operation like Iraq and Afghanistan,\10\ the front lines of these 
custody battles have increased in civilian communities, far from large 
active duty military installations. The reliance on citizen soldiers 
has made the problem more readily identifiable because deployed 
soldiers are no longer clustered to specific regional or geographic 
locations.\11\ In addition, with deployments of these personnel often 
lasting more than 1 year,\12\ the impact has been that the civilian 
family law system is trying to apply an unfamiliar Federal statute to a 
problem that is very sensitive. An inherent conflict exists between 
placing the highest priority on the needs of the child and protecting 
those called to national service.
---------------------------------------------------------------------------
     \9\ See Deployed Troops Custody Battle, supra n.1.
    \10\ John Masson, Volunteers Care for Families; Networks Provide 
Comfort and Help, Detroit Free Press (Michigan) 7 [P 13] (Nov. 27, 
2006).
    \11\ See Matthew D. LaPlante, Military Scraps Call-Up Limits, Salt 
Lake Trib. (Jan. 12, 2007).
    \12\ Id. at [P 19].
---------------------------------------------------------------------------
    On May 5, 2007, an unprecedented Associated Press article brought 
the problem of servicemembers losing custody of their children during 
deployments to the forefront of our national political debate.\13\ The 
article outlined specific cases where parents lost custody of their 
children.\14\ It incorporated from the story of Lieutenant Eva Crouch, 
who stated, ``my child was my life . . . I go serve my country, and I 
come back and have to go through hell and high water [to regain 
custody].'' \15\ It invoked the heart-wrenching image of a weathered 
Captain Brad Carlson, sitting in uniform in a military Humvee holding a 
picture frame of his three smiling children, whom he can no longer see, 
and commenting that he felt ``really betrayed. [*859]'' \16\ It 
involved the story of Corporal Levi Bradley, who, while deployed near 
Fallujah, learned of the custody battle raging at home and became so 
distressed that he rolled the Humvee he was driving.\17\ For a public 
dissatisfied with the war in Iraq,\18\ but proud of its servicemembers' 
dedication and sacrifice, the article was poised to spread quickly and 
make a deep impact.
---------------------------------------------------------------------------
    \13\ See Deployed Troops Custody Battle, supra n. 1.
    \14\ See id.
    \15\ Id. at [P 17].
    \16\ Id. at [P P 15, 42, 45].
    \17\ Id. at [P P 13, 26-27].
    \18\ See Frank Newport, Jeffrey M. Jones & Joseph Carroll, Gallup 
Poll Review: Key Points About Public Opinion on Iraq; Most Say War Was 
a Mistake; Slight Uptick This Month Saying Troop Surge is Working, 
Gallup Poll News Serv. (Aug. 14, 2007).
---------------------------------------------------------------------------
    Consequently, on October 1, 2007, the Senate approved the 2008 
Defense Appropriations bill,\19\ which had passed the House of 
Representatives on May 17, 2007.\20\ The bill included an amendment 
introduced by Representative Mike Turner of Ohio,\21\ granting limited 
civil protections to mobilized and deployed servicemembers facing 
hearings on the subject of child custody.\22\ The President ultimately 
vetoed the 2008 Defense Appropriations Bill on December 28, 2007.\23\ 
However, Congress revived the SCRA provisions in House Resolution 4986 
\24\ and, on January 28, 2008, the President signed the revised 
National Defense Authorization Act for Fiscal Year 2008.\25\
---------------------------------------------------------------------------
    \19\ National Defense Authorization Act for Fiscal Year 2008, H.R. 
1585, 110th Cong. Sec. 1 (Mar. 20, 2007) (as introduced).
    \20\ GovTrack, Legislation, 2007-2008 (110th Congress), H.R. 1585: 
National Defense Authorization Act for Fiscal Year 2008, http://
www.govtrack.us/congress/bill.xpd?tab=main&bill=h110-1585 (last 
accessed Apr. 10, 2008).
    \21\ U.S. House of Representatives Committee on Rules, Summary of 
Amendments Submitted to the Rules Committee for H.R. 1585--National 
Defense Authorization Act for Fiscal Year 2008 Military Construction 
Authorization Act for Fiscal Year 2008, http://www.rules.house.gov/
amendment details.aspx?NewsID=2660 (last accessed Apr. 10, 2008).
    \22\ Id.
    \23\ 154 Cong. Rec. H5 (daily ed. Jan. 15, 2008).
    \24\ H.R. 4986, 110th Cong. (2008) (enacted) (reprinted in 122 
Stat. 3).
    \25\ Pub. L. No. 110-181, Sec. 584, 122 Stat. 3 (2008); GovTrack, 
Legislation, 2007-2008 (110th Congress), H.R. 4986: National Defense 
Authorization Act for Fiscal Year 2008, http://www.govtrack.us/
congress/bill.xpd?bill=h110-4986 (last accessed Apr. 10, 2008).
---------------------------------------------------------------------------
    This comment explores the roots of the SCRA and some of the cases 
that led to the public outcry over parental loss of custody during 
deployments. It then explores the changes made to the SCRA through 
[*860] the passage of House Resolution 4986, comparing them to State 
protections already in place. While the SCRA seems the most logical 
legislative vehicle through which to provide comprehensive national 
protections to servicemembers who are parents, it is not the only 
consideration when trying to protect servicemember parental rights. 
Therefore, this comment will address additional concerns that Congress 
should bear in mind when granting parental rights to servicemembers, 
who should never be forced to fight a battle on two fronts or sacrifice 
parental rights to fulfill a military obligation.

    II. Historical Perspective

    Debate over civil protections for servicemembers has typically 
occurred prior to, or in the midst of, military engagements, as 
illustrated by the dates when civil protections have been enacted.\26\ 
For instance, amendments to the SSCRA occurred during World War II, the 
Korean War, and the Vietnam War; \27\ however, the first legal 
protections for servicemembers began nearly 150 years ago.\28\
---------------------------------------------------------------------------
    \26\ See Colin A. Kisor, Who's Defending the Defenders?: Rebuilding 
the Financial Protections of the Soldiers' and Sailors' Civil Relief 
Act, 48 Naval L. Rev. 161, 163 (2001).
    \27\ Id.
    \28\ Id. at 161-62.

---------------------------------------------------------------------------
        A.  Civil War

    The United States has implemented some form of civil protection for 
soldiers and sailors since the Civil War.\29\ On June 11, 1864, 
Congress approved one of the earliest pieces of legislation aimed at 
providing such protections.\30\ The law served to protect soldiers from 
both civil and criminal litigation when their duties called them away 
to participate in military action.\31\ The act also stated:
---------------------------------------------------------------------------
    \29\ See id.
    \30\ Id.
    \31\ Id.

        that whenever, during the existence of the present rebellion, 
        any action, civil or criminal, shall accrue against any person 
        who by reason of resistance to the execution of the laws of the 
        United States, or the interruption of the ordinary course of 
        judicial [*861] proceedings, cannot be served with process for 
---------------------------------------------------------------------------
        the commencement of such action or arrest of such person. . . .

    The time during which such person shall be beyond the reach of 
judicial process shall not be deemed or taken as any part of the time 
limited by law for the commencement of such action.\32\
---------------------------------------------------------------------------
    \32\ Id. at 162 (internal citation omitted).
---------------------------------------------------------------------------
    With this, Congress set a precedent, and several States followed 
with their own legislative acts to protect soldiers and sailors engaged 
in the war; for instance, many of the Confederate States enacted their 
own servicemember civil relief protections.\33\ This led one ``South 
Carolina circuit judge . . . [to interpret the act as saying] ``the 
State says to the creditor, (in a time of general distress,) you may 
not add to the calamity which overwhelms the land by harassing with 
lawsuits and sheriff's sales those who happen to be in your debt.' '' 
\34\ The 1864 act, however, is unique because it prevented both civil 
and criminal litigation throughout the duration of the Civil War.\35\
---------------------------------------------------------------------------
    \33\ Gregory M. Huckabee, Operations Desert Shield and Desert 
Storm: Resurrection of the Soldiers' and Sailors' Civil Relief Act, 132 
Mil. L. Rev. 141, 143 (1991).
    \34\ Id. (internal citation omitted).
    \35\ Id.

---------------------------------------------------------------------------
        B.  The 20th Century

    As the 20th century introduced the notion of mass global conflict 
and international warfare with the ``Great World War,'' the necessity 
for revised civil protections for servicemembers again became 
apparent.\36\ In many ways, World War I laid the groundwork for 
provisions that provided ``comprehensive'' support for military 
personnel under the Soldiers' and Sailors' Civil Relief Act of 1918 
(SSCRA of 1918).\37\ The Act extended protection ``to persons in 
military service . . . in order to prevent prejudice or injury to their 
civil rights during their term of service and to enable them to devote 
their entire energy to the military needs of the Nation[.]\38\ It 
underlined [*862] provisions ``for the temporary suspension of legal 
proceedings and transactions which may prejudice the civil rights of 
persons in such service during the continuance of the present war.\39\ 
The act expressly provided protections for general relief from 
judgments,\40\ ``rent, installment contracts, [and] mortgages,\41\ 
insurance policies,\42\ and taxes ``falling due during the period of 
military service.'' \43\ The SSCRA of 1918 expired 6 months after World 
War I ended.\44\
---------------------------------------------------------------------------
    \36\ Id.
    \37\ 50 U.S.C. app. Sec. 164 (1918) (enacted under the Soldiers' 
and Sailors' Civil Relief Act, ch. 20, Sec. 100, 40 Stat. 440 (1918)); 
Huckabee, supra n. 33, at 143.
    \38\ 50 U.S.C. Sec. 164 at art. I.
    \39\ Id.
    \40\ Id. at art. II.
    \41\ Id. at art. III.
    \42\ Id. at art. IV.
    \43\ Id. at art. V.
    \44\ Huckabee, supra n. 33, at 144.
---------------------------------------------------------------------------
    By 1940, Europe was once again in a state of war and the United 
States would soon be embroiled in an intercontinental global war. On 
October 17, 1940, a few years before the United States was attacked at 
Pearl Harbor, the provisions of the SSCRA of 1918 were resurrected \45\ 
and revised in the Soldiers and Sailors Civil Relief Act of 1940 (SSCRA 
of 1940).\46\ Though this Act relied heavily upon the SSCRA of 1918, it 
included additional benefits with respect to public lands, changed the 
method of administering the provisions of guaranteed insurance premium 
protection, and raised from $50 to $80 the monthly rental of family 
dwellings in the noneviction provision (an increase of $30 after 22 
years).\47\
---------------------------------------------------------------------------
    \45\ Id.; Meixell, supra n. 3, at 38 (internal citation omitted).
    \46\ Huckabee, supra n. 33, at 144; Meixell, supra n. 3, at 38.
    \47\ Huckabee, supra n. 33, at 145.
---------------------------------------------------------------------------
    During the next 50 years, the SSCRA was altered, amended, and 
updated in a piecemeal fashion.\48\
---------------------------------------------------------------------------
    \48\ Id. at 155-57.

---------------------------------------------------------------------------
        C.  Development of the SCRA from the SSCRA

    Operation Desert Storm created a new generation of veterans and 
forced a wholesale re-examination of the SSCRA.\49\ It was the first 
war since World War II to require the use of large numbers of Reserve 
forces and National Guard members, as 50,000 citizen-soldiers were 
summoned to join their active duty counterparts.\50\ For decades, the 
[*863] SSCRA was important to military personnel involved in family law 
disputes.\51\ ``In reviewing the cases it becomes clear that paternity, 
divorce and post-divorce cases comprised the highest percentage of 
litigation which [arose] under the [SSCRA.] \52\ Due to deployments to 
Afghanistan and Iraq, the rate of divorce has continued to rise among 
servicemembers,\53\ leaving them vulnerable to losing custody of their 
children while deployed.
---------------------------------------------------------------------------
    \49\ Id. at 157-58.
    \50\ See id. at 145-58.
    \51\ See Roger M. Baron, The Staying Power of the Soldiers' and 
Sailors' Civil Relief Act, 32 Santa Clara L. Rev. 137 (1992).
    \52\ Id. at 138.
    \53\ Gregg Zoroya, Soldiers' Divorce Rates Up Sharply, USA Today 1A 
[P 1] (June 8, 2005).

---------------------------------------------------------------------------
    III. Analysis of the Author

        A.  Case Law Regarding Custody Disputes Under the Pre-Amendment 
        SCRA

    Servicemembers have faced a variety of custody disputes since the 
passage of the SCRA.\54\ The nature of military deployments, where one 
parent is suddenly forced to leave for an extended period of time and 
custody arrangements are necessarily altered, has forced courts to 
examine these issues.\55\ The impact of the 2008 amendments to the SCRA 
can be seen in the following cases.
---------------------------------------------------------------------------
    \54\ See Deployed Troops Custody Battle, supra n. 1.
    \55\ Id. at [P 10].

          1.  Crouch v. Crouch, Custody Disputes Confronted in a CONUS 
---------------------------------------------------------------------------
        (Continental U.S.) Mobilization

    Crouch v. Crouch \56\ garnered national attention for its 
straightforward facts and sympathetic character: a National Guard 
soldier and mother lost custody of her child after being called to 
active duty because of a system that offered no protection for the 
custody rights of deployed servicemembers.\57\
---------------------------------------------------------------------------
    \56\ Crouch v. Crouch, 201 S.W.3d 463 (Ky. 2006).
    \57\ Jessica Wehrman, Troops' Custody Rights May Be Protected; 
Turner's Bill Would Guard Against Deployments Counting Against Parents 
Fighting for Children, Dayton Daily News (Ohio) A4 (May 24, 2007).
---------------------------------------------------------------------------
    Charles Jackson Crouch (hereafter Charles) and his wife, Kentucky 
National Guard soldier Virginia Eva Crouch (hereafter Eva), [*864] had 
their first child together in July 1994.\58\ By December 1996, the 
couple divorced and agreed to share joint custody of their 
daughter.\59\ The child lived primarily with Eva until February 2003, 
when she received orders to report to her National Guard unit within 72 
hours.\60\ Eva and Charles agreed that Charles would care for their 
daughter at his residence during the duration of Eva's expected 1-year 
deployment overseas.\61\
---------------------------------------------------------------------------
    \58\ Crouch, 201 S.W.3d at 464.
    \59\ Id.
    \60\ Id.
    \61\ Id.
---------------------------------------------------------------------------
    Instead of being deployed overseas, Eva was stationed at Fort Knox, 
Kentucky for a 1-year mobilization that ended in February 2004.\62\ She 
was then given an opportunity to attend Officer Training School for 4 
months.\63\ After speaking with Charles, Eva agreed to leave their 
daughter in Charles's care so the child could finish the school year 
before returning to live with Eva for the summer.\64\
---------------------------------------------------------------------------
    \62\ Id.
    \63\ Id.
    \64\ Id.
---------------------------------------------------------------------------
    When Eva returned from active duty in July of 2004, she was ready 
to pick up her daughter and return to her normal life.\65\ When she 
called Charles to inform him that she was picking up their child the 
next day, however, he replied, ``Not without a court order.'' \66\ As a 
result, she went to court to enforce the December 17, 1996 permanent 
custody order.\67\ On August, 30, 2004, much to Eva's surprise, ``the 
trial court entered an order finding that it was in the minor child's 
best interests to remain with [her father].\68\ The ruling stated:
---------------------------------------------------------------------------
    \65\ Id.
    \66\ Ewan MacAskill, International: Pressure on Bush to Help 
Military Families Fighting on Two Fronts: Work and Family Strains Add 
to Stress of War Zone: Veterans Demand More Legislative Protection, The 
Guardian (London) 17 [P 4] (May 8, 2007) (internal quotations omitted).
    \67\ Crouch, 201 S.W.3d at 464.
    \68\ Id.
---------------------------------------------------------------------------
    The Court finds from the evidence that at the time the agreed order 
was executed it was the intent of both parties that the child would be 
returned to the physical custody of [Eva] at the conclusion of [Eva's] 
military alert. If the agreed order had been a contract for the sale of 
goods, the parties' intent would control as a [*865] matter of law. 
However, in the present arrangement the Court must consider the best 
interests of the child.\69\
---------------------------------------------------------------------------
    \69\ Id. (internal citation omitted).
---------------------------------------------------------------------------
    Eva, stunned by the ruling, said, `` `we're not asking for any 
special consideration . . . all we're asking is that our service not be 
held against us.' '' \70\ Eva's appeal reached the Kentucky Supreme 
Court.\71\ The Court examined the language of the original 1996 
agreement and contrasted it with the 2003 agreement, intended to last 
for the duration of Eva's active military obligation.\72\ The 2003 
agreement stated that the temporary custody situation was to be in 
place ``until further Orders of the Court.'' \73\ The Court determined 
that while this phrase ``is generally construed to denote permanency, 
when the phrase is read in the context of this order, it could also be 
reasonably interpreted to indicate that the trial court will transfer 
custody back to [Eva] upon completion of her active military duty.'' 
\74\
---------------------------------------------------------------------------
    \70\ Wehrman, supra n. 57, at [P 6].
    \71\ Crouch, 201 S.W.3d at 464.
    \72\ Id.
    \73\ Id. at 466.
    \74\ Id.
---------------------------------------------------------------------------
    Eva's frustration with her custody ordeal reverberated throughout 
the country, leading many States to implement protections. Kentucky was 
one of those States.\75\ By the time Eva's case had reached the 
Kentucky Supreme Court, the Kentucky legislature had enacted Kentucky 
Revised Statute section 403.340.\76\ The law, entitled ``Modification 
of custody decree; Modification based on active duty deployment to 
revert back on parent or custodian's return,'' \77\ speaks directly to 
the issues Eva faced. Even though the law did not pass in time to have 
an impact on Eva's case, the Court recognized that its ``interpretation 
of the February 10, 2003, order is consistent with the newly enacted 
[Kentucky Revised Statute section] 403.340 (5).'' \78\
---------------------------------------------------------------------------
    \75\ See Ky. Rev. Stat. Ann. Sec. 403.340 (Westlaw current through 
2007 Legis.).
    \76\ Id.; Crouch, 201 S.W.3d 463.
    \77\ Ky. Rev. Stat. Ann. Sec. 403.340.
    \78\ Crouch, 201 S.W.3d at 466.
---------------------------------------------------------------------------
    The case produced discord among the members of the Kentucky Supreme 
Court.\79\ Justice Scott's dissent focused on two important issues. 
First, he argued, in Kentucky,
---------------------------------------------------------------------------
    \79\ See id. at 467 (Scott, J., dissenting).

---------------------------------------------------------------------------
    [*866]

the burden of supplying the affidavits required by [Kentucky Revised 
Statute section] 403.340(2) was on the Appellee [Eva], as she was the 
one moving to change the physical custody. Undoubtedly, the purpose of 
both statutes is to place the burden of proof on the parent seeking to 
modify custody so as to encourage stability in the custodial 
relationship.\80\
---------------------------------------------------------------------------
    \80\ Id. (emphasis omitted).
---------------------------------------------------------------------------
    Second, he examined the well-being of the child, who admittedly 
expressed a desire to stay enrolled in a school where she liked her 
teachers and had new friends.\81\ Eva Crouch, now Eva Slusher, 
successful regained custody of her daughter, having devoted nearly 2 
years and 25,000 dollars in legal fees to the custody battle.\82\
---------------------------------------------------------------------------
    \81\ Id. at 468.
    \82\ CNN, Protecting Deployed Troops From Custody Battles, [P 12-
13] http://www.cnn.com/2008/LIVING/wayoflife/01/31/troops.custody.a p/
(last accessed Apr. 21, 2008).

          2.  In re Marriage of Bradley--Stay Proceedings in Custody 
---------------------------------------------------------------------------
        Disputes

    Not long after Amber and Levi Bradley were married, Levi joined the 
military and was shipped out for Boot Camp in June 2003; shortly 
thereafter, Amber gave birth to their son Tyler on September 8, 
2003.\83\ The couple lived with Levi's mother, Starleen, from their 
wedding day until April 27, 2005.\84\ The circumstances surrounding the 
custody dispute began when Levi filed a divorce action on May 19, 
2005.\85\ In the action, ``Levi prayed for sole custody of Tyler, with 
residential placement with his mother,'' in part, because Amber had 
embarked on a series of lifestyle choices that he claimed led to Tyler 
being improperly cared for.\86\ In the aftermath of the divorce action, 
the couple decided to try to make the relationship work, so Amber moved 
to North Carolina to spend time with Levi, giving custody of Tyler to 
Starleen.\87\
---------------------------------------------------------------------------
    \83\ In re Marriage of Bradley, 137 P.3d 1030, 1031 (Kan. 2006).
    \84\ Id.
    \85\ Id.
    \86\ Id.
    \87\ Id. at 1031-32.
---------------------------------------------------------------------------
    On June 8, 2005, Amber, counsel for Levi, and a trial judge signed 
an order amending the custody arrangement, subsequently awarding 
custody of the child to Starleen, and permitting reasonable [*867] 
visitation to Amber.\88\ By the end of September, however, Amber 
attempted to change the order, arguing ``she did not have counsel at 
the time she signed the order and did not fully understand what she was 
agreeing to.'' \89\ This petition gave rise to the assertion of the 
SCRA by Levi, who requested a stay since he had been deployed to Iraq 
and was not scheduled to return until March 31, 2006.\90\ The district 
court rejected this request, and found:
---------------------------------------------------------------------------
    \88\ Id. at 1032.
    \89\ Id.
    \90\ Id.

        that temporary orders in this matter are not stayed by the 
        Servicemen's Civil Relief Act. I believe this Court has a 
        continuing obligation to consider what's in the best interest 
        of the child. I do believe that judgments against a petitioner 
        husband are precluded thereby but not what is in the best 
        interest of this child and I believe the Court has the 
        authority and will take up the Motion to Modify Temporary 
        Orders.\91\
---------------------------------------------------------------------------
    \91\ Id. (internal quotations omitted).

    After reviewing the history of this case in the introduction to its 
opinion, the Kansas Supreme Court applied the relevant sections of the 
SCRA to examine the District Court's finding that the SCRA did not 
apply to temporary custody orders.\92\ The court looked specifically to 
section 522(b) of the SCRA, finding that the section gives the court 
the authority to grant a stay to any servicemember in a civil 
proceeding for `` `not less than [ninety] days, if the conditions in 
paragraph (2) are met.' '' \93\ The conditions in paragraph (2)(A) 
require some communication describing how the military duties `` 
`materially affect the servicemember's ability to appear,' '' and 
providing an alternative date for appearance.\94\ Section (2)(B) 
requires `` `communication from the servicemember's commanding officer 
stating that the servicemember's current military duty prevents 
appearance and that military leave is not authorized for the 
servicemember at the time of the letter.' '' \95\
---------------------------------------------------------------------------
    \92\ Id. at 1032-33.
    \93\ Id. at 1033 (quoting 50 U.S.C. app. Sec. 522(b) (Westlaw 
current through P.L. 110-195)).
    \94\ Id. (quoting 50 U.S.C. app. Sec. 522(b)(2)(A) (Westlaw current 
through P.L. 110-195)).
    \95\ Id. (quoting 50 U.S.C. app. Sec. 522(b)(2)(B) (Westlaw current 
through P.L. 110-195)).
---------------------------------------------------------------------------
    [*868] The court pointed out that one of the problems with Levi's 
application for a stay was the lack of documentation in accordance with 
section 522(b)(2).\96\ Even though he provided a document he referred 
to as `` `orders issued on July 11, 2005,' '' the document did not 
specifically contain Levi's name.\97\ Instead, the document referenced 
a duty roster which included Levi's name as one of the soldiers being 
deployed to Iraq, but was not attached, so the court did not rely on 
it.\98\
---------------------------------------------------------------------------
    \96\ Id.
    \97\ Id.
    \98\ Id.
---------------------------------------------------------------------------
    After examining case law regarding the SCRA, the court opined:

        it also appears from the language of [section] 522(b)(1) that a 
        court's discretion to grant a stay on its own motion depends on 
        satisfaction of the statutory conditions--``the court may on 
        its own motion . . . stay the action for a period of not less 
        than 90 days, if the conditions in paragraph (2) are met.'' 
        \99\
---------------------------------------------------------------------------
    \99\ Id. at 1034 (internal citation omitted).

    The court relied on the reasoning in the opinion of King v. 
Irvin\100\ for additional support in requiring documentation.\101\ 
Despite the obvious fact that both cases sought to apply the SCRA, the 
facts of King v. Irvin were much different from those confronting the 
Bradleys.
---------------------------------------------------------------------------
    \100\ King v. Irvin, 614 S.E.2d 190 (Ga. App. 2005).
    \101\ Bradley, 137 P.3d at 1034.
---------------------------------------------------------------------------
    King, a naval reservist, had previously gotten into an accident, 
sued Irvin, and the case had been placed ``on the trial calendar for 
the week of February 23, 2004.'' \102\ King subsequently sought an SCRA 
stay of proceedings on the trial because he had received ``military 
orders to report to duty on February 23.'' \103\ The court continued 
the case until April 19, despite the fact that King had not attached 
his orders to his petition as he claimed.\104\ At the April 19 hearing, 
counsel for King requested another continuance without providing any 
[*869] supporting documents.\105\ The trial court denied the request 
and dismissed the case.\106\
---------------------------------------------------------------------------
    \102\ King, 614 S.E.2d at 191.
    \103\ Id.
    \104\ Id.
    \105\ Id.
    \106\ Id.
---------------------------------------------------------------------------
    Courts are faced with a difficult proposition in interpreting a 
Federal statute that may be invoked only rarely before them. One of the 
troubling aspects of a lack of custody protection in the SCRA, however, 
is the fact that appearance in a personal injury case is treated 
similarly to a case addressing the custody rights of servicemember 
parents. In the closing paragraphs of its opinion, the Kansas Supreme 
Court addressed the fact that ``where there is a failure to satisfy the 
conditions of the Act, then the granting of a stay is within the 
discretion of the trial court.'' \107\
---------------------------------------------------------------------------
    \107\ In re Marriage of Bradley, 137 P.3d 1030, 1034 (Kan. 2006).

---------------------------------------------------------------------------
          3.  Lenser v. McGowan--The SCRA, ``A Shield Not a Sword''

    Following World War II, there was increasing concern that 
servicemembers would misuse the civil protections afforded to them. In 
Slove v. Strohm,\108\ the court stated, ``this Act may not be used as a 
sword against persons with legitimate claims against servicemen. Some 
balancing between the rights of the respective parties must be arrived 
at.'' \109\ Some of these fears stem from the common-sense implications 
of extending too many benefits to servicemembers. For example, if 
credit protections were too generous, servicemembers may be denied 
credit opportunities because the financial risk to the creditor would 
be too great. More importantly, the well-being of children may be 
placed at risk if protections afforded servicemembers trumped current 
child-protection laws. Further, courts are loath to allow the SCRA to 
be used offensively as a tool for harassment or simply to frustrate 
another party. In Lenser v. McGowan,\110\ the court found that a 
servicemember had improperly attempted to take advantage of 
circumstances by using the Act to gain custody of his children.\111\
---------------------------------------------------------------------------
    \108\ Slove v. Strohm, 236 N.E.2d 326 (Ill. App. 1st Dist. 1968).
    \109\ Id. at 328.
    \110\ Lenser v. McGowan, 191 S.W.3d 506 (Ark. 2004).
    \111\ See id.
---------------------------------------------------------------------------
    The circumstances of this case involved the breakdown of the 
marriage between Michael and Angel Lenser.\112\ They had a child [*870] 
together, Carson Ray Lenser.\113\ Michael and Angel legally separated 
in November 2003, but Michael returned to Angel's residence to visit 
Carson during Christmas.\114\ Michael was ordered to return to Fort 
Hood, Texas on January 2, 2004 to prepare for deployment to Iraq.\115\ 
After that, Carson lived with Michael's mother, Dorothy Hockey.\116\
---------------------------------------------------------------------------
    \112\ Id. at 507.
    \113\ Id.
    \114\ Id. at 509-10.
    \115\ Id. at 510.
    \116\ Id. at 507.
---------------------------------------------------------------------------
    Meanwhile, a custody order was granted, awarding Angel custody of 
Carson.\117\ In response, Michael asserted that: (1) he was entitled to 
stay custody proceedings pursuant to the SCRA, and (2) the court lacked 
jurisdiction to remove Carson from Dorothy's custody because the civil 
action should have been put on hold for 90 days.\118\ The court 
explained that ``nothing in the grant of a stay deprives a court of 
jurisdiction. To the contrary, a stay means that the court retains 
jurisdiction, but holds action on the case in abeyance.'' \119\
---------------------------------------------------------------------------
    \117\ Id.
    \118\ Id. at 508.
    \119\ Id. at 509.
---------------------------------------------------------------------------
    The court then found that the domestic relations proceeding could 
be stayed, but that a temporary order giving custody to Angel was 
proper.\120\ The court noted that the SCRA ``does not put Carson in 
suspended animation. His life goes on, and the circuit court properly 
entertained the issue of who should receive temporary custody.'' \121\ 
The court found that Michael was attempting to gain an advantage by 
arguing that all legal proceedings should halt the moment a stay is 
entered under the SCRA.\122\ Essentially, Michael argued that since he 
had placed Carson with his mother, the stay should maintain that 
arrangement for the duration of the order.\123\ The court concluded 
that had Carson perchance been with Angel when the stay was entered, it 
is doubtful Michael would be arguing as he does presently. To accept 
Michael's argument would create an environment in which a servicemember 
could always gain custody by simply making sure the child is staying 
with the [*871] servicemember when the stay is requested. That would 
provide servicemembers an advantage rather than protect against adverse 
effects.\124\
---------------------------------------------------------------------------
    \120\ Id. at 511.
    \121\ Id.
    \122\ Id.
    \123\ Id. at 509.
    \124\ Id. at 511.
---------------------------------------------------------------------------
    Lenser illustrates how a servicemember may use the SCRA to gain an 
unfair advantage rather than to gain protection. The case also 
emphasizes the importance of maintaining the courts' ability to grant 
temporary custody orders, as well as the need to ensure that parents' 
fundamental rights to custody of their children are not abridged. 
Fortunately, Congress took many of these lessons and applied them to 
the 2008 Defense Appropriations Bill.\125\
---------------------------------------------------------------------------
    \125\ Wehrman, supra n. 57, at [P 11].

        B.  Differences Between the Congressional Amendment and 
---------------------------------------------------------------------------
        Relative State Protections

          1.  Congressional Amendment

    A spate of news articles, television interviews, and angry 
editorials, inspired in part by the story of Eva Crouch, led 
Representative Mike Turner to act to introduce an amendment to the SCRA 
that would protect the rights of military parents during 
deployments.\126\ The proposed amendment was intended to set a minimum 
standard of protection for military parents.\127\ Entitled ``Child 
Custody Protection,'' \128\ it sought to fix major problems with the 
SCRA.
---------------------------------------------------------------------------
    \126\ See Wehrman, supra n. 57.
    \127\ H.R. Rpt. 110-151 at Summary of Amend. 9 (May 15, 2007).
    \128\ Id. at Text of Amend. 9.
---------------------------------------------------------------------------
    The language in Congressman Turner's bill strongly resembled 
legislation passed in Michigan several years prior.\129\ Even though 
the language, as introduced, was not adopted in the final bill signed 
by President Bush, it provides important insight into the legislative 
intent behind the amendment. Section 208(a) of Congressman Turner's 
proposal, entitled ``Restriction on Change of Custody,'' \130\ stated:
---------------------------------------------------------------------------
    \129\ Audra Miller, Congresswoman Candice Miller, News Center, Rep. 
Miller Urges House to Protect Rights of Military Parents and their 
Children, http://candicemiller.house.gov/Read.aspx?ID=337 (last 
accessed Mar. 4, 2008).
    \130\ H.R. Rpt. 110-151 at Text of Amend. 9.

---------------------------------------------------------------------------
    [*872]

    If a motion for change of custody of a child of a servicemember is 
filed while the servicemember is deployed in support of a contingency 
operation, no court may enter an order modifying or amending any 
previous judgment or order, or issue a new order, that changes the 
custody arrangement for that child that existed as of the date of the 
deployment of the servicemember, except that a court may enter a 
temporary custody order if there is clear and convincing evidence that 
it is in the best interest of the child.\131\
---------------------------------------------------------------------------
    \131\ Id.
---------------------------------------------------------------------------
    Therefore, subsection (a) sought to ease servicemembers' concerns 
that permanent custody arrangements would be amended while they were 
deployed. The most important clause of subsection (a) permitted only 
the entry of temporary custody orders.\132\ This ensured that the 
precarious nature of deployments, which sometimes required moving a 
child from one residence to another, did not leave the parent without 
options.
---------------------------------------------------------------------------
    \132\ Id.
---------------------------------------------------------------------------
    Subsection (b), entitled ``Completion of Deployment,'' stated:
    In any proceeding covered under subsection (a), a court shall 
require that, upon the return of the servicemember from deployment in 
support of a contingency operation, the custody order that was in 
effect immediately preceding the date of the deployment of the 
servicemember is reinstated.\133\
---------------------------------------------------------------------------
    \133\ Id.
---------------------------------------------------------------------------
    This section appears to curtail unpopular holdings like the one in 
Crouch by requiring the reinstatement of pre-deployment custody 
arrangements.
    For the servicemember, perhaps the most important element of the 
amendment was found in subsection (c), ``Exclusion of Military Service 
From Determination of Child's Best Interest.'' \134\ This section 
stated:
---------------------------------------------------------------------------
    \134\ Id.
---------------------------------------------------------------------------
    If a motion for the change of custody of the child of a 
servicemember who was deployed in support of a contingency operation is 
filed after the end of the deployment, no court may [*873] consider the 
absence of the servicemember by reason of that deployment in 
determining the best interest of the child.\135\
---------------------------------------------------------------------------
    \135\ Id.
---------------------------------------------------------------------------
    A consistent problem that has plagued parents returning from 
extended deployments in which custody arrangements were temporarily 
altered was the argument by the opposing non-servicemember spouse that 
the child had become accustomed to the new living arrangements and the 
child's primary residence should not be transferred again. This element 
was evident in the Crouch case,\136\ but it seems to be a feature of 
most custody battles waged during the deployment of a servicemember 
spouse. This subsection therefore attempts to alleviate a lingering 
problem for servicemembers who return from active duty service in 
deployments.
---------------------------------------------------------------------------
    \136\ Crouch v. Crouch, 201 S.W.3d 463, 464 (Ky. 2006).
---------------------------------------------------------------------------
    Unfortunately, this subsection fails to address charges of mental 
incompetence levied by non-servicemember spouses against servicemembers 
who have returned from deployments, particularly when those deployments 
were to combat zones. Former spouses can argue that, after such a 
traumatic experience, the servicemember is not mentally capable of 
caring for a child, and should not therefore be given custody.
    Congressman Turner's amendments to the SCRA were included in the 
2008 Defense Appropriations Bill, which ultimately passed the Senate on 
January 22, 2008,\137\ to be signed by President Bush in early 
2008.\138\ However, some of the longer passages Congressman Turner 
submitted were only adopted in abbreviated form.\139\
---------------------------------------------------------------------------
    \137\ GovTrack, supra n. 20.
    \138\ Pauline Arrillaga, Law Helps Even the Field in Troops' 
Custody Battles, The Virginian-Pilot (Norfolk, V.A.) A7 [P 3] (Jan. 31, 
2008).
    \139\ See Pub. L. No. 110-181, Sec. 584, 122 Stat 3 (2008).
---------------------------------------------------------------------------
    In introducing his amendment, Congressman Turner stated he wanted 
to provide ``certainty to servicemembers deployed in a contingency 
operation that their child custody arrangements will be protected.\140\ 
He continued,
---------------------------------------------------------------------------
    \140\ 153 Cong. Rec. H5132-01 (daily ed. May 16, 2007).
---------------------------------------------------------------------------
    In some cases, courts are overturning established custody 
arrangements while the custodial parent is serving our country in a 
contingency operation, such as Iraq or Afghanistan.

    [*874]

    States have become aware of this issue and are looking at what 
action they can take to support our men and women in uniform. The State 
of Michigan passed a law in 2005 to provide these protections to 
military personnel. The amendment offered today is modeled after the 
established Michigan law.
    Much is asked of our servicemembers, and mobilizations can disrupt 
and strain relationships at home. This additional protection is needed 
to provide them peace of mind that the courts will not take away their 
children because they answered the country's call to serve. This 
amendment protects them and it protects their children.\141\
---------------------------------------------------------------------------
    \141\ Id.
---------------------------------------------------------------------------
    By the time President Bush finally signed the 2008 Defense 
Appropriations Bill, the amendments to the SCRA included re-worked 
language taken from the existing SCRA framework. Congressman Turner's 
original amendments were left behind and a section entitled, 
``Protection of Child Custody Arrangements for Parents Who Are Members 
of the Armed Forces Deployed in Support of a Contingency Operation,'' 
added the following:

          (a)  Protection of Servicemembers Against Default 
        Judgments.--Section 201(a) of the Servicemembers Civil Relief 
        Act (50 U.S.C. App. 521(a)) is amended by inserting ``, 
        including any child custody proceeding,'' after ``proceeding''.

          (b)  Stay of Proceedings When Servicemember Has Notice.--
        Section 202(a) of the Servicemembers Civil Relief Act (50 
        U.S.C. App. 522(a)) is amended by inserting ``, including any 
        child custody proceeding,'' after ``civil action or 
        proceeding''.\142\
---------------------------------------------------------------------------
    \142\ Pub. L. No. 110-181 at Sec. 584.

    Even without the additional language proposed by Congressman Turner 
in May 2007, these amendments to the SCRA indicate just how important 
the addition of several words can be to a deployed servicemember. As it 
applies to default judgments, the SCRA now reads: ``(a) Applicability 
of section. This section applies to any civil action or proceeding, 
including any child custody proceeding, in which the defendant does not 
make an appearance.'' \143\
---------------------------------------------------------------------------
    \143\ 50 U.S.C. app. Sec. 521(a) (Westlaw current through P.L. 110-
198).

    [*875] Likewise, the SCRA, in a section entitled, ``Stay of 
---------------------------------------------------------------------------
proceedings when servicemember has notice,'' now reads:

          (a)  Applicability of section. This section applies to any 
        civil action or proceeding, including any child custody 
        proceeding, in which the plaintiff or defendant at the time of 
        filing an application under this section----

                  (1)  is in military service or is within 90 days 
                after termination of or release from military service; 
                and

                  (2)  has received notice of the action or 
                proceeding.\144\
---------------------------------------------------------------------------
    \144\ 50 U.S.C. app. Sec. 522(a) (Westlaw current through P.L. 110-
198).

    Because of the additions, servicemembers now enjoy a baseline of 
protection that ensures they will not lose custody of their children 
while deployed. Nevertheless, Congress should heed the model of many 
States by strengthening these provisions, as the next section will 
---------------------------------------------------------------------------
show.


          2.  State Laws

    A new era of civil protections for American servicemembers was 
ushered into the public form through the SCRA.\145\ Then, nearly 4 
years after the SCRA was enacted, Congress finally introduced a bill 
detailing civil relief from changes to permanent child custody 
arrangements during deployments.\146\ Typical of America's 
``laboratories of democracy,'' \147\ State governments have been 
enacting child custody protections for servicemembers for most of the 
decade; the result has been an effective patchwork of laws in States 
such as Michigan, Kentucky, and Arizona.\148\ The following pages will 
examine these precursors to the new Federal protections and the [*876] 
different approaches some States have taken. These approaches, if 
enacted by the Federal Government, would likely provide greater child 
custody protection to servicemembers.
---------------------------------------------------------------------------
    \145\ See DefenseLink, Soldiers' and Sailors' Civil Relief Act of 
1940, A Brief History, http://www.defenselink.mil/specials/Relief Act 
Revision/history.html (last accessed Apr. 17, 2008).
    \146\ H.R. 1585, 110th Cong. Sec. 584 (May 17, 2007).
    \147\ John O. McGinnis, Reviving Tocqueville's America: The 
Rehnquist Court's Jurisprudence of Social Discovery, 90 Cal. L. Rev. 
485, 510 (2002).
    \148\ See Ark. Code Ann. Sec. 9-13-110 (Westlaw current through 
2007 Reg. Sess., including changes made by Ark. Code Rev. Commn. 
through Jan. 31, 2008); Ky. Rev. Stat. Ann. Sec. 403.340 (Westlaw 
current through 2007 Legis.); Mich. Comp. Laws Ann. Sec. 722.27 
(Westlaw current through P.A.2008, No. 87 of the 2008 Reg. Sess., 94th 
Legis.).
---------------------------------------------------------------------------
        a.  Michigan State's Approach

    In 2005, Michigan introduced a bill to amend existing laws on child 
custody as they pertained to military personnel.\149\ Using the 
framework of the State's existing child custody laws, section 7(c) of 
the Child Custody Act of 1970 was amended to read:
---------------------------------------------------------------------------
    \149\ Mich. H. 5100, 93d Leg., 1st Sess. (2005).

        If a motion for change of custody is filed during the time a 
        parent is in active military duty, the court shall not enter an 
        order modifying or amending a previous judgment or order, or 
        issue a new order, that changes the child's placement that 
        existed on the date the parent was called to active military 
        duty, except the court may enter a temporary custody order if 
        there is clear and convincing evidence that it is in the best 
        interest of the child. Upon a parent's return from active 
        military duty, the court shall reinstate the custody order in 
        effect immediately preceding that period of active military 
        duty. If a motion for change of custody is filed after a parent 
        returns from active military duty, the court shall not consider 
        a parent's absence due to that military duty in a best interest 
        of the child determination.\150\
---------------------------------------------------------------------------
    \150\ Mich. Comp. Laws Ann. Sec. 722.27(7)(c).

---------------------------------------------------------------------------
        b.  Kentucky State's Approach

    Kentucky takes a markedly different approach to child custody 
arrangements of military personnel. The law, entitled ``Modification of 
custody decree; modification based on active duty deployment to revert 
back on parent or custodian's return,'' is found in section 403.340 of 
Title XXXV, Kentucky's regulations on ``domestic relations.'' \151\ In 
this one section, State lawmakers confronted many of the issues that 
caused Eva Crouch to endure a lengthy and costly custody battle. In 
subsection (5)(a), the bill states:
---------------------------------------------------------------------------
    \151\ Ky. Rev. Stat. Ann. Sec. 403.340.

        any court-ordered modification of a child custody decree, based 
        in whole or in part on: 1. The active duty of a parent or a de 
        facto [*877] custodian as a regular member of the United States 
        Armed Forces deployed outside the United States; or 2. Any 
        Federal active duty of a parent or a de facto custodian as a 
        member of a State National Guard or a Reserve component; shall 
        be temporary and shall revert back to the previous child 
        custody decree at the end of the deployment outside the United 
        States or the Federal active duty, as appropriate.\152\
---------------------------------------------------------------------------
    \152\ Id. at Sec. 403.340(5)(a).

    This provision ensures that a temporary custody arrangement 
developed before a deployment is precluded from being converted into a 
permanent arrangement simply because the deployment is unexpectedly 
---------------------------------------------------------------------------
extended.

        c.  Arkansas State's Approach

    Arkansas enacted its servicemember parent provisions on March 16, 
2007 to protect ``parents who are members of the armed forces.'' \153\ 
In an unprecedented move, Arkansas decided to pass an emergency clause 
because:
---------------------------------------------------------------------------
    \153\ 2007 Ark. Acts 301.

        members of the armed forces are spending inordinate time and 
        energy dealing with issues of child custody and visitation as a 
        sole consequence of being mobilized. . . . Therefore, an 
        emergency is declared to exist and this act being necessary for 
        the preservation of the public peace, health, and safety shall 
        become effective [upon approval by the Governor of 
        Arkansas].\154\
---------------------------------------------------------------------------
    \154\ Id. at Sec. 2.

    This rather extraordinary language ensured that the bill addressed 
aspects of servicemember custody issues not articulated in the statutes 
discussed above; these included flexibility with visitation and 
safeguards for parents who face permanent changes to their custody 
arrangements after mobilization.\155\
---------------------------------------------------------------------------
    \155\ See id.; see also Ky. Rev. Stat. Ann. Sec. 403.340; Mich. 
Comp. Laws Ann. Sec. 722.27 (Westlaw current through P.A.2008, No. 87 
of the 2008 Reg. Sess., 94th Legis.).
---------------------------------------------------------------------------
    The Arkansas legislature articulated several reasons for enacting 
these protections: ``recent national emergencies have demonstrated that 
noncustodial parents will sometimes attempt to use a custodial parent's 
military mobilization, in and of itself, as a `material change in 
[*878] circumstances' to attempt to justify a change in custody.'' 
\156\ The legislature also noted that the stress military personnel 
experience in mobilization is already immense without the additional 
pressures of child custody proceedings or the prospect of losing 
custody of a child.\157\ Simply stated, the purpose of this bill seems 
to have been to avoid unwanted modification of custody orders for 
servicemember parents solely because of their military service, a 
motivation very similar to the many actions of Congress and other State 
legislatures taken since this issue gained recognition. However, 
Arkansas provided more protection for servicemember parents by 
providing increased flexibility to amend orders for visitation and 
custody of mobilized servicemembers.\158\ The bill explicitly states 
that courts' consideration in custody issues must be consistent with 
``maximizing the mobilized parent's time and contact with his or her 
child that is consistent with the best interest of the child.'' \159\ 
The legislature then instructed courts to consider a myriad of 
potential issues, including but not limited to, the length of the 
mobilized parent's call to active duty . . . the duty station . . . 
[the potential for] contact with the child through a leave, a pass, or 
other authorized absence . . . the contact that the mobilized parent 
has had with the child before the call to active military duty . . . 
[and the] nature of the military mission.\160\
---------------------------------------------------------------------------
    \156\ 2007 Ark. Acts 301 (internal quotations omitted).
    \157\ Id.
    \158\ Id.
    \159\ Id. at Sec. 1(c).
    \160\ Id. at Sec. 1(c)(2).
---------------------------------------------------------------------------
    Though not exhaustive, the list strikes a balance between the 
increasing opportunities a servicemember may have throughout a 
mobilization to secure visitation rights and reducing the possibility 
that a servicemember who was a neglectful parent will use the power of 
the statute to harass the other parent.
    Interestingly, the bill draws a distinction between those who 
voluntarily enter permanent active military duty and those who join the 
Reserves or National Guard.\161\ It places a premium on the notion of 
the ``citizen-servicemember,'' suddenly called from civilian life to 
participate in a national cause. The parent who consciously enters 
permanent active duty may be under fewer time constraints than the 
[*879] reservist called to report within a limited number of hours or 
days and may have a greater opportunity to arrange his or her affairs. 
On this subject, the bill provides that it:
---------------------------------------------------------------------------
    \161\ Id. at Sec. 1(d).

        shall not limit the power of a court of competent jurisdiction 
        to permanently modify an order of child custody or visitation 
        in the event that a parent volunteers for permanent military 
        duty as a career choice regardless of whether the parent 
        volunteered for permanent military duty while a member of the 
        armed forces.\162\
---------------------------------------------------------------------------
    \162\ Id. at Sec. 1(d).

    C.  Recommended Legislative Amendments to the SCRA in Child Custody 
---------------------------------------------------------------------------
Disputes

    The amendments to the House bill have not yet taken effect, so we 
have yet to see child custody cases brought under the new Federal 
approach. If courts liberally construe the protections provided to 
servicemembers by the act, Congressman Turner's amendments will likely 
ensure that only temporary custody arrangements are made while 
servicemembers are deployed. The changes will also ensure that when 
servicemembers return from deployment, their military service will not 
play a negative role in determining custody arrangements.
    Although the newly revised SCRA provides a significantly higher 
level of protection than existed previously, it still does not provide 
the same level of protections as the state-drafted legislation 
discussed here.\163\ Among these, Kentucky's statute is remarkable in 
that it ensures that temporary custody arrangements made prior to 
deployment and solely because of deployment, do not serve as 
justification for continuing that custody arrangement upon the 
servicemembers' return and reintegration into civilian life.\164\ 
Despite the changes that states have adopted, and which Congress should 
adopt, servicemembers are still left particularly vulnerable in some 
areas of child custody.\165\
---------------------------------------------------------------------------
    \163\ See U.S.C. app. Sec. 521-22 (Westlaw current through P.L. 
110-199); Ark. Code Ann. Sec. 9-13-110 (Westlaw current through 2007 
Legis.); Ky. Rev. Stat. Ann. Sec. 403.340 (Westlaw current through 2007 
Reg. Sess., including changes made by Ark. Rev. Commn. through Jan. 31, 
2008); Mich. Comp. Laws Ann. Sec. 722.27 (Westlaw current through 
P.A.2008, No. 87 of the 2008 Reg. Sess., 94th Legis.).
    \164\ Ky. Rev. Stat. Ann. Sec. 403.340(3).
    \165\ Indeed, one area of child custody not impacted by the SCRA--
and not addressed in this comment due to its complexity--is that of 
international child abduction under the Hague convention.
    A unique feature of military life, especially American military 
life, is the frequency with which a servicemember is stationed abroad; 
currently, ``forces of the United States military are located in nearly 
130 countries around the world performing a variety of duties from 
combat operations, to peacekeeping, to training with foreign 
militaries.'' GlobalSecurity.org, Military, Operations, Where Are The 
Legions? Global Deployments of U.S. Forces, http://
www.globalsecurity.org/military/ops/global-deployments.htm (last 
accessed Mar. 6, 2008). Additionally, ``as of January 2005, there 
[were] some 250,000 soldiers, sailors, airmen, Marines, and Coast 
Guardsmen deployed in support of combat, peacekeeping, and deterrence 
operations.'' Id. In countries where United States forces are not 
engaged in combat operations, restrictions on intimate relationships 
with local residents are relaxed; thus, servicemembers often marry 
foreign nationals.
    The Hague Convention only applies when there is an unauthorized 
``removal or retention of a child [which] breaches a custody order,'' 
and only if the petition is ``filed within 1 year of the abduction.'' 
Laura McCue, Left Behind: The Failure of the United States to Fight for 
the Return of Victims of International Child Abduction, 28 Suffolk 
Transnatl. L. Rev. 85, 85, 90 (2004). However, overseas combat 
deployments for most active or activated Army personnel range anywhere 
from 12 to 18 months. See Robert Burns, Army Extends Iraq Tours to 15 
Months, Charleston Gaz. 2A (Apr. 12, 2007). In addition to the time 
that servicemembers spend in Iraq, Reservists and National Guard 
members also spend up to 6 months preparing for deployment at an active 
duty installation in the United States. Sydney J. Freedberg Jr., 
National Journal, The Guard's Turn to Surge, http://
nationaljournal.com/about/njweekly/stories/2007/1214nj1. htm (last 
accessed Apr. 17, 2008). With so much time between receiving orders to 
report for active duty and returning home, a non-servicemember spouse 
can easily take a child and establish residency in a foreign country. 
As a result, the Hague Convention's 1-year statute of limitations may 
have passed by the time the servicemember returns to the United States, 
discovers the child's location, and files a petition seeking return of 
the child.
---------------------------------------------------------------------------
    [*880] The following paragraphs propose (1) that Congress should 
adopt additional measures to mitigate the impact deployments have on 
custody arrangements, and (2) that the government address international 
marriages and custody disputes to protect servicemembers from losing 
their children while they serve our Nation.

          1.  Creating a Rebuttable Presumption of Mental Fitness

    If, upon returning from deployment, the non-servicemember spouse 
seeks to reinstate the pre-deployment permanent or temporary child 
custody arrangement, the SCRA should provide that there is a rebuttable 
presumption that the servicemember is physically and mentally fit to 
engage with his or her child or children. This seems reasonable, 
considering that after returning from active duty deployments, all 
members of the military must undergo a Post-Deployment Health 
Reassessment (PDHRA) \166\ [*881] and that mental health assessments 
are given at regular intervals once the servicemember has returned 
home.\167\ The family court would continue to exercise discretion to 
order additional screening to investigate the reasons for the non-
servicemember spouse's complaint. Creating a rebuttable presumption of 
physical and mental fitness would protect a servicemember from spurious 
attacks by a former spouse seeking to use the servicemember's 
deployment experiences against him/her.
---------------------------------------------------------------------------
    \166\ Deployment Health Clinical Center, Deployment Support, Post-
Deployment, Post Deployment Health Reassessment (PDHRA) Program (DD 
Form 2900), http://www.dtic.mil/whs/directives/infomgt/forms/eforms/
dd2900.pdf (last accessed Apr. 17, 2008).
    \167\ Army Behavioral Health, Post Deployment, Frequently Asked 
Questions About the PDHRA, http://www.behavioralhealth.army.mil/post-
deploy/pdhrafaqs.html (last accessed Apr. 17, 2008).

          2.  Incorporate Explicit Protections from Kentucky Statutory 
---------------------------------------------------------------------------
        Language

    Future revisions of the SCRA should also consider adopting the 
language of the Kentucky statute. Specifically, the Act should include 
a provision that:

        any court-ordered modification of a child custody decree, based 
        in whole or in part on: 1. The active duty of a parent or a de 
        facto custodian as a regular member of the United States Armed 
        Forces deployed outside the United States; or 2. Any Federal 
        active duty of a parent or a de facto custodian as a member of 
        a State National Guard or a Reserve component; shall be 
        temporary and shall revert back to the previous child custody 
        decree at the end of the deployment outside the United States 
        or the Federal active duty, as appropriate.\168\
---------------------------------------------------------------------------
    \168\ Ky. Rev. Stat. Ann. Sec. 403.340(5)(a).

    The amendment to the SCRA in the 2008 Defense Appropriations Bill 
helps assure servicemembers that custody of their children will not be 
arbitrarily altered during their deployment or upon their return.\169\ 
Integrating the Kentucky language into the SCRA would provide for 
reasonable assurances that custody changes are only temporary and would 
provide greater flexibility in pre-deployment custody arrangements.
---------------------------------------------------------------------------
    \169\ Arrillaga, supra n. 138, at [P 3,6,11,12].

---------------------------------------------------------------------------
    [*882]

    IV. Conclusion

    For several generations, Congress has consistently declared that 
civil protections for our nations' servicemembers are an important 
objective. As our society has evolved, those protections have evolved 
as well. The transformation of America's fighting forces will continue 
over the next 20 years, as will the personal and financial problems 
servicemembers face on an individual level. The law should recognize 
these changes and adapt to ensure that lives placed in jeopardy by 
military service should be focused on succeeding in battles, one front 
at a time.
    Our State and Federal legislatures must be quick to respond to the 
issues plaguing our servicemembers. Fortunately, the SCRA has succeeded 
in ensuring that servicemembers are not forced to wage a battle on two 
fronts. Complacency in ensuring our servicemembers have adequate civil 
protections is the greatest enemy our servicemembers face from within 
the United States, while they defend our interests abroad.

                                 
      Prepared Statement of Robert W. Madden, Assistant Director,
             National Economic Commission, American Legion

    Madame Chairwoman, Ranking Member Boozman, and Members of the 
Subcommittee:
    Thank you for this opportunity to present The American Legion's 
views on the several measures under the jurisdiction of this 
Subcommittee. The American Legion commends the Subcommittee for holding 
a hearing to discuss these very important and timely issues.
    H.R. 3257, Military Family Leave Act of 2009, would entitle an 
employed family member of a member of the Armed Forces to 2 workweeks 
of leave per year for each family member who:

      receives notification of a call or order to active duty 
in support of a contingency operation, or
      who is deployed in connection with a contingency 
operation.

    This measure would allow such leave to:

      be taken intermittently or on a reduced leave schedule; 
and
      consist of paid or unpaid leave, as the employer 
considers appropriate.

    Additionally, the bill would allow an employer to require 
certification of entitlement to such leave within a leave request.
    Finally, the measure would provide employment and benefits 
protection for employees upon their return from such leave and would 
prohibit an employer from interfering with or otherwise denying the 
exercise of such leave rights.
    The American Legion supports this pilot program. As a national 
veterans' service organization of wartime veterans, Legionnaires 
understand the hardships and sacrifices made by servicemembers and 
their families, especially lengthy separations. The American Legion 
recognizes military service as the ultimate form of community service 
in that each servicemember is committed to national goals and 
objectives more significant than individual desires.
    Military deployments frequently require servicemembers to miss life 
cycle events, such as births, deaths, marriages, anniversaries that 
most Americans celebrate routinely in a family-centered environment. 
Such military deployments are extremely taxing on the children of 
servicemembers, especially single parents who have to make special 
child care arrangements.
    The American Legion would encourage that there should be some 
deference given to the measures that must be taken in an effort to 
mitigate the temporary loss of the physical contributions to the 
household of the deployed servicemember. The American Legion urges 
Congress to support H.R. 3257 and amend title 38, United States Code 
(U.S.C.), to grant family members of the uniformed services temporary 
annual leave during the deployment of such members. If passed, we 
believe this law will improve the morale of our troops and improve the 
military quality of life, for which The American Legion has so 
vehemently supported over the years.
    H.R. 3484 would extend to June 30, 2014, the period during which 
the following work-study activities qualify for an additional veterans' 
educational assistance allowance:

      outreach services furnished by employees of a State 
approving agency;
      provision of hospital and domiciliary care in a State 
home; and
      activity relating to the administration of a national 
cemetery or State veterans' cemetery.

    At this time, The American Legion does not have an official 
position regarding H.R. 3484.
    H.R. 3579 would amend the Montgomery GI Bill Educational Assistance 
Program for veterans to increase the reporting fee payable to 
educational institutions that enroll veterans receiving assistance.
    The American Legion supports this legislation. Due to the lack of 
staffing and budget cuts that are being made at institutions, an 
increase in reporting fees is warranted. The school's certifying 
official assists veterans with applying for classes and monitors their 
enrollment weekly along with ensuring this information is reported to 
VA. The increased funding could assist with more staffing and provide 
better equipment (i.e. computers) which would provide a self-serve area 
for veterans or allow more funds to provide for Veterans' Centers.
    H.R. 3813, Veterans Training Act, would deem a program of education 
as an approved program for purposes of the Post-9/11 Veterans' 
Educational Assistance Program if the program is offered by an 
institution offering:

      postsecondary instruction that leads to an associate or 
higher degree and the institution is an approved institution of higher 
learning; or
      instruction that does not lead to an associate or higher 
degree and the institution is an approved educational institution.

    The American Legion has sought to amend Chapter 33, title 38, 
U.S.C., to include apprenticeship programs, flight training, 
correspondence schools, vocational schools and on-the-job training 
programs being completed at any educational institute. The American 
Legion has recommended that Chapter 33 needed to be modified to include 
non-college degree programs. Veterans choosing to use their educational 
benefits at other than Institutions of Higher Learning (IHL) that are 
currently covered by Chapter 30 should be allowed to attend their 
choice of education and receive the same benefits that Chapter 33 
recipients are entitled.
    Currently, veterans who are using their Chapter 30 benefits are 
denied the housing and books stipend. These programs were not included 
in the original language for the Post-9/11 GI Bill. H.R. 3813 seeks to 
ensure that all veterans who choose to use their education benefits are 
treated fairly, no matter what course of education they are undergoing. 
The American Legion strongly supports H.R. 3813 and believes this bill 
will grant all eligible veterans the right to choose their own 
education path.
    H.R. 3948, Test Prep for Heroes Act, would amend Chapter 31 of 
title 38, U.S.C., to provide for entitlement under the Post-9/11 
Educational Assistance Program to pay for test preparatory courses. The 
American Legion supports the increase in pay for eligible veterans. 
This legislation will provide veterans with increased allowances more 
closely aligned to financial benefits under the Post-9/11 GI Bill. The 
American Legion believes this legislation will greatly assist and 
encourage eligible veterans to remain in vocational rehabilitation 
programs, search for employment, and assist with living expenses. 
Additionally, this bill will provide reimbursements for child care to 
veterans who are participating in a vocational rehabilitation program 
and/or the sole caretaker of a child (or children).
    H.R. 3976, Helping Heroes Keep Their Homes Act of 2009, would amend 
the Housing and Economic Recovery Act of 2008 to extend through 
December 31, 2015, specified protections for servicemembers relating to 
mortgages and mortgage foreclosures.
    The American Legion supports efforts to enhance benefits received 
by servicemembers to retain their home during any housing crisis. 
Servicemembers serve multiple deployments to combat zones and should be 
afforded relief in order to stay in their current homes where they and 
their families reside. In order to maintain quality of life while 
deployed, it is imperative for servicemembers and their families to be 
afforded all opportunities to continue their way of life and in their 
current residence. Servicemembers and their families have sacrificed 
enough and should not be forced to undergo the additional stress of 
possible foreclosure to their home.
    H.R. 4079 would amend title 38, U.S.C., to temporarily remove the 
requirement for employers to increase wages for veterans enrolled in 
on-the-job training programs. The American Legion believes that the 
quality of life for all veterans of this great nation plays an 
important role in this diverse economy. The American Legion believes 
veterans, who are undergoing on-the-job training, should not be limited 
to a certain pay scale and should not be denied increases in pay. Many 
of these veterans are already struggling with their financial security 
because of their on-the-job program, but to deny them an increase 
should not simply happen. There are circumstances when veterans are 
involved in an on-the-job training program and need to provide for 
their family and need their wages to be increased. In addition, The 
American Legion believes on-the-job training programs should fall under 
Chapter 33 as a vocational education benefits. This would enable those 
veterans, who are undergoing on-the-job training programs, the housing 
allowance and books stipend desperately needed. This benefit would 
create additional support for those veterans and their families and 
also give them the same benefits as those individuals who are 
undergoing a traditional school path.
    H.R. 4203 would seek to amend title 38, U.S.C., to direct the 
Secretary of Veterans Affairs to provide veterans certain educational 
assistance payments through direct deposit. The American Legion does 
not have an official position on H.R. 4203.
    H.R. 4359, Warriors Adapting Residences with Mortgages for Energy 
Renovations Act, amends title 38, U.S.C., to authorize the Secretary of 
Veterans Affairs to guarantee housing loans for the construction of 
energy sufficient dwellings. At this time, The American Legion has no 
official position on H.R. 4359.
    H.R. 4469 would amend the Servicemembers Civil Relief Act to 
provide for protection of child custody arrangements for parents who 
are members of the Armed Forces deployed in support of a contingency 
operation. At this time, The American Legion has no official position 
on H.R. 4469.
    The American Legion appreciates the opportunity to present this 
statement for the record. Again, thank you Madame Chairwoman, Ranking 
Member Boozman, and Members of the Subcommittee for allowing The 
American Legion to present its views on these very important issues.

                                 
  Prepared Statement of Justin Brown, Legislative Associate, National 
   Legislative Service, Veterans of Foreign Wars of the United States

    MADAM CHAIRWOMAN AND MEMBERS OF THIS SUBCOMMITTEE:
    On behalf of the 2.1 million members of the Veterans of Foreign 
Wars of the United States and our Auxiliaries, I would like to thank 
this Committee for the opportunity to testify. The issues under 
consideration today are of great importance to our members and the 
entire veteran population. We have provided our views on the 10 bills 
of interest and are thankful that this Committee values the opinion of 
the Veterans of Foreign Wars of the United States.
    H.R. 3257, to amend title 38, United States Code, to grant family 
of members of the uniformed services temporary annual leave during the 
deployment of such members.
    The VFW supports this important legislation that provides 2 weeks 
of leave for every family member (spouse, sibling, or parent) of a 
servicemember who receives orders to active duty in support of a 
contingency operation, or who is deployed in connection with a 
contingency operation. The leave would be paid or unpaid depending on 
what the employer of the eligible employee deems appropriate and could 
be taken intermittently or on a reduced leave schedule. For example, a 
husband would be able to take 2 weeks of unpaid leave prior to his 
wife's deployment without the fear of suffering penalties due to this 
absence.
    The eligible employee would be legally guaranteed the same 
benefits, positions, and seniority when they return from leave as 
enjoyed prior to the leave and their employer has the right to require 
certification to support the requested leave.
    This bill affords to servicemembers and their family's precious 
quality time, which is imperative to their well-being and morale prior 
to deployment.
H.R. 3484, to amend title 38, United States Code, to extend the 
        authority for certain qualifying work-study activities for 
        purposes of the educational assistance programs of the 
        Department of Veterans Affairs.
    The VFW supports this legislation that would extend the authority 
for work-study programs under the authority of the Department of 
Veterans Affairs from June 10, 2010 to June 30, 2014. The VFW is a 
strong advocate for the service that the work-study program provides 
our Nation's veterans. The work-study program allows veterans to work 
in a position within the Federal Government, educational institutions, 
or with certain non-profit organizations, while giving the veteran 
extra needed income. Work-study positions offer veterans the 
opportunity to study, while also providing a service to the 
organization at which they are working.
H.R. 3813, to amend title 38, United States Code, to provide for the 
        approval of certain programs of education for purposes of the 
        Post-9/11 Educational Assistance Program.
    The VFW is concerned that this legislation does not address the 
compensation implications of expanding the Post-9/11 GI Bill. 
Currently, the law states only institutions of higher learning that 
lead to an associate degree or higher may be utilized under Chapter 33. 
This means that veterans attending vocational schools, apprenticeship 
schools, on-job training and distance learning programs are excluded 
from utilizing Chapter 33.
    Many of our separating servicemembers have no desire to attend a 
traditional educational institution because they are interested in 
learning skill sets that are not offered at these institutions. This 
legislation would seemingly allow our veterans to attend educational 
institutions that do not lead to a degree (such as vocational schools, 
correspondence schools, business schools, science schools, technology 
schools among others) within the jurisdiction of the Post-9/11 GI Bill. 
However, this legislation fails to provide adequate mechanisms for 
providing payment to the veterans that choose these educational 
programs.
    The VFW believes that Congress should standardize, simplify, and 
restructure all education programs with, an eye toward equitable 
benefits for equitable service, in accordance with Chapter 33. 
Remaining Chapter 30 programs (lump sum payments, vocational training, 
distance learning) should be moved into Chapter 33. Title 10 Section 
1606, the guard and reserve Select Reserve GI Bill needs to reflect the 
Chapter 33 scale. Chapter 35, survivors and dependents educational 
benefits should also be comparable to Chapter 33. Ultimately, phasing 
out Chapter 30 and simplifying benefits based on Chapter 33.
H.R. 3948, to amend title 38, United States Code, to provide for 
        entitlement under the Post-9/11 Educational Assistance Program 
        to payment for test preparatory courses, and for other 
        purposes.
    The VFW supports this legislation that will allow veterans to 
receive the appropriate test preparation prior to taking tests that 
play a major role in the college and graduate school admissions 
process, like the SAT, GRE, or LSAT. Test preparatory courses are often 
expensive and therefore cost prohibitive to veterans attending college 
or interested in attending college. Also, higher performance on 
standardized tests helps veterans gain access to scholarships, 
financial aid, and more competitive institutions of learning.
H.R. 3976, to extend certain expiring provisions providing enhanced 
        protections for servicemembers relating to mortgages and 
        mortgage foreclosure.
    The VFW supports this vital legislation that would extend 
servicemembers protections on mortgage interest rate caps and potential 
foreclosures. In particular, the extension would apply to a 9 month 
period after a servicemember has been released from duty where his/her 
property cannot be sold, foreclosed, or seized. The legislation also 
extends a 1 year cap of the 6 percent interest cap on a servicemember's 
mortgage following their separation. These provisions are set to expire 
by January 1, 2011. H.R. 3976 would extend the foreclosure provision 
until December 21, 2015 and the interest rate cap provision to January 
1, 2016.
    This important legislation will help servicemembers, at high-risk 
for unemployment, transition to the civilian sector without fear of 
losing their home, while also protecting them against excessive 
interest rates on their mortgage payments. As we wage two wars and the 
economy remains grim, it is essential to provide veterans with the 
provisions specified in the Housing and Economic Recovery Act of 2008.
H.R. 4079, to amend title 38, United States Code, to temporarily remove 
        the requirement for employers to increase wages for veterans 
        enrolled in on-the-job training programs.
    The VFW supports this legislation that temporarily eliminates the 
requirements for employers to regularly increase the wages of veterans 
participating in on-the-job training programs authorized under Chapter 
30.
    Currently, employers can hire a veteran under the on-job training 
program and the VA pays for half of the salary of the veteran as a 
training period that lasts from 6 months to 2 years. The employer pays 
the veteran trainee 50 percent at the start of the program and 
gradually increases their payment to 85 percent of the trainee's 
salary. VA pays the 50 percent-15 percent difference in this salary. 
This legislation proposes to freeze employer's contributions to 
trainees at 50 percent.
    In the dismal job market and overall economic climate, employers 
are hesitant to hire any new employees. The prospect of hiring trainees 
at a constant rate of 50 percent of their salary for the entirety of 
their training period will give veterans a unique advantage in finding 
a suitable employment option with on-the-job training.
    This legislation would require this employment subsidy to remain in 
effect until October 1, 2015 at which time the current law would be 
reinstated. The Secretary of Veterans Affairs will submit a report on 
the effects of the requirement removal to the House and Senate 
Committees on Veteran's Affairs no later than June 1, 2015 to monitor 
the results of the amendment.
H.R. 4203, to amend title 38, United States Code, to direct the 
        Secretary of Veterans Affairs to provide veterans certain 
        educational assistance payments through direct deposit.
    The VFW currently has no formal position on this legislation.
H.R. 4359, to amend title 38, United States Code, to authorize the 
        Secretary of Veterans Affairs to guarantee housing loans for 
        the construction energy efficient dwellings, and for other 
        purposes.
    The VFW supports this legislation that would expand the VA's 
guarantee for housing loans to include the construction of energy 
efficient dwellings. Currently, VA home loan guarantees are only 
extended for the purpose of making your home more energy efficient if: 
a veteran owns the home in which he resides and would like to make 
modifications, or if a veteran wishes to buy and modify an already 
existing home. This legislation would allow veterans to build the home 
of their choice and do so in an energy efficient way.
    Also, this proposal would change the maximum loan guarantee for 
energy efficient modifications from $3,000 or $6,000 dollars 
respectively, to ``five percent of the total established value of the 
property, dwelling, and improvements, unless the Secretary specifically 
provides for a higher amount.''
    Helping veterans make a small investment to become more energy 
efficient will save energy and save money for the veteran in the long 
run. This win-win strategy provides a proactive solution to make 
inroads on a pressing global issue, while helping veterans achieve 
their dreams of home ownership.
H.R. 4469, to amend the Servicemembers Civil Relief Act to provide for 
        protection of child custody arrangements for parents who are 
        members of the Armed Forces deployed in support of a 
        contingency operation.
    The VFW supports this legislation that would amend the 
Servicemembers Civil Relief Act by adding a new section entitled 
``Child Custody Protection.'' In particular, this legislation will 
restrict permanent custody decisions while a servicemember is deployed 
in support of a contingency operation. A court would still be able to 
enter a temporary custody order, during times of deployment, if the 
court finds that it would be in the best interest of the child.
    Of great importance, this legislation would also exclude military 
service in determining the child's best interest. This would make the 
courts unable to consider the absence of the servicemember by reason of 
deployment, or possibility of deployment, in determining the best 
interest of the child for the sake of permanent custody decisions.
    The VFW strongly believes that a servicemember's duty should not 
reflect negatively on themselves for the sake of judicial proceedings 
that deal with something as serious as a permanent custody decision of 
a child. Clearly, deployments cause great hardships on families and 
servicemembers. However, in most instances, the decision to deploy is 
not the servicemember's; it is our governments. Therefore, we should 
not allow our government to then punish servicemembers in judicial 
custody disputes.
    Madam Chairwoman, this concludes my testimony and I will be pleased 
to respond to any questions you or the Members of this Subcommittee may 
have. Thank you.

                                 
    Prepared Statement of Timothy S. Embree, Legislative Associate,
                Iraq and Afghanistan Veterans of America

    Madam Chairwoman, Ranking Member, and Members of the Subcommittee, 
on behalf of Iraq and Afghanistan Veterans of America (IAVA), thank you 
for allowing us to testify before your Committee. Many of the 10 pieces 
of legislation being considered today will profoundly affect veterans 
of Iraq and Afghanistan and their families. We appreciate this 
opportunity to offer our feedback.
Executive Summary:
    Three of the bills being considered today touch on key priorities 
for IAVA: education, rights for female servicemembers and seamless 
transition. Two years ago, Congress passed the new GI Bill, helping to 
build the next greatest generation. We believe: H.R. 3813, the Veterans 
Training Act, will further this commitment by streamlining and 
simplifying the new Post-9/11 GI Bill to include vocational training; 
H.R. 4469 will better support the 30,000 single mothers who have 
deployed since 9/11 by granting them child custody protections; and 
H.R. 3976, the Helping Heroes Keep Their Homes Act, will ensure 
military families are able to stay in their homes during a deployment.

------------------------------------------------------------------------
      Bill #              Bill Title           Author      IAVA Position
------------------------------------------------------------------------
H.R. 3257.........  Military Family Leave  Smith, Adam     Support
                     Act of 2009
------------------------------------------------------------------------
H.R. 3484.........
--------------------Reauthorizing VA work--Herseth---------Support------
                     study program          Sandlin
------------------------------------------------------------------------
H.R. 3579.........  Increasing the School  Filner          Support
                     Reporting Fee
------------------------------------------------------------------------
H.R. 3813.........  Veterans Training Act  Sestak          Support
------------------------------------------------------------------------
H.R. 3948.........  Test Prep for Heroes   Putnam          Support
                     Act
------------------------------------------------------------------------
H.R. 3976.........  Helping Heroes Keep    Perriello       Support
                     Their Homes Act
------------------------------------------------------------------------
H.R. 4079.........  Temporarily remove     Perriello       Oppose
                     the requirement to
                     increase wages for
                     OTJ vets
------------------------------------------------------------------------
H.R. 4203.........  Requiring GI bill      Hall            No Position
                     payments to be
                     offered through
                     direct deposit
------------------------------------------------------------------------
H.R. 4359.........  WARMER Act Warriors    Boozman         Support
                     Adapting Residences
                     with Mortgages for
                     Energy Renovations
                     Act
------------------------------------------------------------------------
H.R. 4469.........  Provide protection of  Turner          Support
                     child custody
                     arrangements for
                     deploying parents
------------------------------------------------------------------------

Full Testimony:
H.R. 3257, Military Family Leave Act of 2009
    The Military Family Leave Act would grant a family member of a 
deployed servicemember at least 2 weeks of military family leave for 
every year that the servicemember is deployed. This family member would 
not be required to use accrued vacation time to utilize these 2 weeks 
of military family leave; however, the employer has the discretion to 
determine whether military family leave is considered paid or unpaid 
leave time. Failure to grant military family leave or penalizing a 
family member for taking this leave will result in the same punishment 
as a violation of USERRA protections.
    IAVA fully supports this legislation. This bill will give family 
members of servicemembers on leave the opportunity to spend time with 
the servicemember instead of working during that limited time. It will 
also provide a cushion for family members to handle all of the 
unexpected tasks, errands and responsibilities that surface during a 
deployment.
    Lastly, IAVA recommends that H.R. 3257 be amended to prohibit 
employers from requiring family to exhaust other forms of leave not 
explicitly outlined in the bill, such as sick leave and so-called 
``comp time.''
    H.R. 3257 is an expansion of the Family and Medical Leave Act that 
passed in the 2008 NDAA and was forcefully endorsed by IAVA.
H.R. 3484, To amend title 38, United States Code, to extend the 
        authority for certain qualifying work-study activities for 
        purposes of the educational assistance programs of the 
        Department of Veterans Affairs.
    H.R. 3484 will reauthorize the VA work-study allowance program for 
another 4 years. This vital program helps campuses hire student 
veterans to assist processing GI Bill paperwork, work at a local VA 
facility, or perform veteran outreach in their community. Student 
veterans earn minimum wage and can work up to an average of 25 hours/
week. Veterans can also receive up to 40 percent of their payment as an 
advance payment.
    In 2009 the VA spent $23 million on work-study programs and the 
VA's budget request for 2011 lowers that figure to $18 million.\1\ The 
program was created in 1972, paying veterans $250 in advance pay in 
exchange for the student veteran agreeing to work 100 hours.
---------------------------------------------------------------------------
    \1\ VA Annual Budget Submission (FY 2011); Volume III: Benefits and 
Burial Programs and Department Administration; page 82; http://
www4.va.gov/budget/docs/summary/Fy2011_Volume_3-
Benefits_and_Burial_and_Dept_Admin.pdf.
---------------------------------------------------------------------------
    IAVA supports H.R. 3484 because it provides meaningful employment 
opportunities for student veterans while improving services for other 
veterans. We have met many student veterans who assist their school 
certifying official with processing GI Bill paperwork through this 
program and we believe that the mentoring they provide to other 
veterans is invaluable.
H.R. 3579, To amend title 38, United States Code, to provide for an 
        increase in the amount of the reporting fees payable to 
        educational institutions that enroll veterans receiving 
        educational assistance from the Department of Veterans Affairs, 
        and for other purposes.
    H.R. 3579 would increase the payments made to colleges for 
processing a veteran's GI Bill paperwork, called reporting fees, to 
$50/student veteran. This is a much needed increase from the current 
and embarrassingly low rate of $7/veteran. School certifying officials 
are required to verify a student veteran's enrollment before that 
veteran can begin receiving their education benefits. This online 
certification form can take upwards of an hour to complete and must be 
updated if the student veteran changes their enrollment status.
    Given their unique role as the gatekeeper for student veterans GI 
Bill benefits, school certifying officials are often mistaken for VA 
employees and are often a veteran's first and only contact with the VA. 
They answer questions about benefits, explain the application process 
and sometimes refer veterans to other VA services. Unfortunately, poor 
training and/or a lack of a full-time certifying official on a campus 
will lead to unnecessary friction between veterans and the school. For 
example, any mistakes in the certification process will mean the 
veteran will likely have to wait months for their education benefits or 
they may be billed for overpaid benefits. Because of the current 
extremely low reporting fees there is no financial incentive for 
schools to make veterans' certification a top priority for their best 
people. Many colleges delegate this responsibility to entry-level 
staff, where there is often have high turnover. And often the 
university employees have too many other responsibilities to make 
certifying veterans' enrollment their top priority. Furthermore, 
schools are reluctant to send certifying officials to vital VA 
trainings held regionally each summer.
    IAVA strongly supports H.R. 3579 because we believe that student 
veterans should receive first class service when they access their 
education benefits, from the VA and from their school. We also believe 
that the current policy of paying certifying officials less than the 
Federal minimum wage to process student veterans' paperwork, worth tens 
of thousands of dollars to each veteran, is unfair and needs to be 
fixed immediately.
H.R. 3813, Veterans Training Act
    The Veterans Training Act would expand the Post-9/11 GI Bill to 
cover vocational training at vocational schools. Currently, the Post-9/
11 GI Bill will only cover vocational training at a degree granting 
college, but not at an exclusively vocational training program. IAVA 
believes it is unfair and confusing that a veteran can be reimbursed 
under the Post-9/11 GI Bill for studying to be an EMT at their local 
community college, but cannot take the same course at an EMT school.
    Vocational training has always been an important part of the GI 
Bill, 70 percent of the 8 million veterans who used the WWII GI Bill 
did not seek college degrees but instead participated in vocational and 
apprenticeship training programs. While that number has decreased over 
the years, the fact remains that a traditional college education isn't 
for everyone. IAVA believes that veterans should have a choice on how 
to use their GI Bill benefits. The over 16,000 veterans enrolled in 
vocational programs \2\ should not be excluded from the robust new 
Post-9/11 GI bill.
---------------------------------------------------------------------------
    \2\ Based on VA GI Bill data for 2008.
---------------------------------------------------------------------------
    IAVA strongly endorses H.R. 3813, the Veterans Training Act. On a 
technical note, section 2(b)(1) of H.R. 3813 is unnecessarily 
duplicative because it includes programs that would already be covered 
under section 2(b)(2).
H.R. 3948, Test Prep for Heroes Act
    The Test Prep for Heroes Act would allow veterans taking a 
preparatory course for a licensing or certification test to be 
reimbursed under the new GI Bill helping veterans have higher success 
rates on their exams. Currently, veterans can use their Post-9/11 GI 
Bill benefits to cover the cost of a single licensing or certification 
test, up to $2,000, but are forced to pay out of pocket for preparatory 
courses. For example, the GI Bill will cover a bar examination test but 
will not cover the bar prep course that nearly every law student takes 
to prepare for such a rigorous examination. H.R. 3948 will help 
veterans be more successful in their licensing and certification exams 
by making prep courses financially available.
    IAVA believes this act should be expanded to allow veterans to be 
reimbursed for taking multiple licensing or certification tests up to 
the $2,000 cap. Under the old GI Bill, veterans could use their 
education benefits to cover multiple licensing and certifications tests 
while the new GI Bill will only reimburse for a single test. We believe 
that veterans, whose career path requires multiple certification tests, 
should not be penalized. For example, the new GI Bill will reimburse a 
future mechanic for only one of the following certifications:

Automobile: Automatic Transmission/Transaxle                         $23

Automobile: Brakes                                                   $23

Automobile: Engine Repair                                            $23


    A mechanic would only receive $23 for her or his certifications 
under the new GI Bill while an aspiring attorney in Nevada could 
receive $1225 for their bar exam. Expanding H.R. 3948 to include 
multiple licensing and certification tests will level the playing field 
and provide a more equitable benefit for veterans.
H.R. 3976, Helping Heroes Keep Their Homes Act of 2009
    The Helping Heroes Keep Their Homes Act of 2009 will extend vital 
foreclosure protections for deploying servicemembers that are set to 
sunset at the end of this year. Returning servicemembers now receive 9 
months of protection from mortgage foreclosures after they separate 
from active-duty. Originally, servicemembers had only 90 days before 
they risked foreclosure on their homes. At the height of the housing 
crisis, foreclosure rates in military towns were increasing at four 
times the national average. IAVA was strongly supportive of these 
protections when they were passed back in August of 2008 as part of the 
Housing and Economic Recovery Act. We strongly support their extension 
as part of H.R. 3976. Technical note: the Thomas version of H.R. 3976 
has a typo, it should be called the ``Recovery Act'' not the ``Recover 
Act.''
H.R. 4079, To amend title 38, United States Code, to temporarily remove 
        the requirement for employers to increase wages for veterans 
        enrolled in on-the-job training programs.
    H.R. 4079 would temporarily lower the mandatory wages being paid by 
an employer to veterans enrolled in on-the-job training (OJT) programs. 
Veterans enrolled in OJT programs currently receive a monthly stipend 
under the GI Bill worth $1026/month for the first 6 months, $752 for 
the second 6 months and $478 for the rest of their training. This 
stipend is meant to support a veteran while they are completing their 
vocational training. For example, many cadets attending police and fire 
academies utilize this benefit.
    Since 1967, when this program began, employers wishing to 
participate in the GI Bill as an eligible OJT program were required to 
pay a participating veteran 50 percent of the wages they would receive 
if they were fully trained. That percentage would increase to 85 
percent throughout the veteran's training period. The clear purpose of 
this requirement is to offset the diminishing GI Bill OJT stipend while 
gradually increasing the employer's obligation, meaning the veteran 
would receive a steady stream of income through their training. H.R. 
4079 would temporarily remove the employer's obligation to increases 
wages above the 50 percent threshold for the next 5 years consequently, 
as the OJT stipend decreased the veterans wages would decrease.
    As it is currently written, IAVA opposes H.R. 4079 because we 
cannot support lowering wages for our Nation's veterans, especially in 
this time of fiscal crisis. By removing the requirement that employers 
increase wages during the veteran's training we would be incentivizing 
participating OJT programs to lower their wages to the 50 percent 
threshold. If wages remain stagnant throughout a veterans training 
program, they will receive progressively less money every 6 months due 
to the drop in GI Bill rates. This is unacceptable.
    If the end purpose is to encourage more employers to offer OTJ 
programs and/or increase the number of veterans utilizing this program, 
we believe the H.R. 4079 could be modified to achieve those ends. By 
coupling the temporary removal of requirements for wage increase with 
the stipulation that OJT rates do not drop after 6 months, 
participating veterans will not experience lowered wages and more 
employers would participate. Without such a stipulation or a similar 
modification IAVA must oppose H.R. 4079.
H.R. 4203, To amend title 38, United States Code, to direct the 
        Secretary of Veterans Affairs to provide veterans certain 
        educational assistance payments through direct deposit.
    H.R. 4203 would require the Department of Veterans Affairs to 
ensure that all veterans be eligible to receive Post-9/11 GI Bill 
payments via direct deposit. VA Education Services, which administers 
GI Bill benefits, has already implemented a direct deposit program for 
GI Bill beneficiaries. A student can sign up for direct deposit when 
they apply for their GI Bill benefits. This bill is basically redundant 
so IAVA takes no position on H.R. 4203. However, if this Committee sees 
fit to consider this legislation IAVA recommends a technical correction 
by changing the word ``veteran'' to ``student'' because the Post-9/11 
GI Bill pays education benefits to veterans, spouses and dependents.
H.R. 4359, WARMER Act: Warriors Adapting Residences with Mortgages for 
        Energy Renovations Act
    The WARMER Act would help veterans finance money-saving energy 
efficient improvements to their homes using VA home loans. A veteran 
wishing to install a solar heating system would be able to use a VA 
home loan to cover the installation costs up to 5 percent of the 
established property value of the home. The VA currently has a program 
that authorizes them to make similar loans. However the WARMER Act 
improves upon that pilot program by capping the loan based on the 
established value of the property. Currently they are capped at an 
arbitrary fixed rate that requires the VA Secretary to develop new 
standards for evaluating energy efficiency improvements.
    IAVA supports the WARMER Act because it modernizes and expands a 
useful benefit for veterans seeking to reduce their carbon footprint 
and their monthly bills.
H.R. 4469, To amend the Servicemembers Civil Relief Act to provide for 
        protection of child custody arrangements for parents who are 
        members of the Armed Forces deployed in support of a 
        contingency operation.
    H.R. 4469 would provide critical protections for deploying parents. 
More than 30,000 single mothers have deployed to Iraq and Afghanistan 
as of March 2009,\3\ H.R. 4469 would prohibit a permanent change of 
custody order while the servicemember is deployed as well as ensure 
that the servicemember's deployment status is not counted against the 
servicemember in future custody hearings. This will grant deploying 
parents the peace of mind knowing that their military service will not 
come between them and their children.
---------------------------------------------------------------------------
    \3\ ``Women Warriors: Supporting She `Who Has Borne the Battle' ''; 
Erin Mulhall; page 4; http://media.iava.org/IAVA_WomensReport_2009.pdf
---------------------------------------------------------------------------
    IAVA wholeheartedly endorses H.R. 4469 because we believe forcing a 
deployed parent to worry about child custody hearings while they are 
deployed in a war zone is cruel and damaging to our fighting force. The 
whole purpose of the Servicemember's Civil Relief Act (SCRA) is to 
ensure a deployed servicemember's attention is on the task at hand and 
not on their responsibilities back home. We believe that H.R. 4469 is a 
vital improvement to the SCRA.
    IAVA has heard some concerns expressed about the unintended 
consequences of such a law and we are confident those concerns are 
unwarranted. H.R. 4469 adequately protects the best interest of the 
children in question by allowing temporary custody orders while the 
servicemember is deployed and an exemption from reinstating a custody 
order if it is not in the best interest of the child.

                                 
       Prepared Statement of James Bombard, Legislative Director,
      National Association of State Approving Agencies, and Chief,
                 New York Bureau of Veterans Education

Introduction
    Madam Chairwoman and Members of the Subcommittee, I am pleased to 
appear before you today on behalf of the National Association of State 
Approving Agencies (NASAA) to provide input, support, and to discuss 
the provisions of the following bills: H.R. 3813, H.R. 4079, H.R. 3948, 
H.R. 3579, H.R. 3484, and H.R. 4203. The other bills listed in the 
invitation letter (H.R. 3257, H.R. 3976, H.R. 4359, and H.R. 4469) are 
not within the purview of education benefits so I will not be 
commenting on them. We are supportive of them in principle.
    State Approving Agencies have been an integral part of the 
administration of the various GI Bills since shortly after the 
inception of the original GI Bill in June of 1944. It has been our 
distinct pleasure and honor to have the opportunity to contribute to 
the success of these programs. In short, State Approving Agencies are 
``the face of the GI Bill at the State level.''
H.R. 3813
    This bill would expand the Post-9/11 GI Bill to include approved 
programs offered at noncollege degree educational institutions. The 
Post-9/11 GI Bill does not provide increased benefits for all eligible 
veterans/individuals because it limits the type of educational 
institutions they can choose to use their earned benefits. Students 
attending nondegree granting postsecondary educational institutions 
(public vocational-technical, some career schools, certain nursing 
schools, and other approved educational institutions) are not eligible 
for increased benefits under the Post-9/11 GI Bill.
    On return to civilian life, many servicemembers are interested in 
hitting the ground running. Short-term certificate and diploma programs 
can be a critical part of a successful transition. But if they are not 
offered at a degree granting institution, then programs such as truck 
driving, some police and firefighting academies, aviation maintenance, 
cosmetologist, barber, HVAC, construction trades, allied medical 
programs such as medical assisting, EMT, etc., are not available for 
pursuit under the new GI Bill. Nondegree institutions have been 
included in other GI Bills so why should Chapter 33 be different? After 
a veteran has bravely served their country, they should be allowed to 
pursue their next career at the institution of their choice. Since all 
institutions/programs must be approved by the State Approving Agency, 
there is a detailed review by a government agency to ensure all State 
and Federal requirements are met. State Approving Agency staff have had 
many examples of individuals who do not understand why they cannot use 
their earned benefits. In fact, on February 3, 2010, during a routine 
supervisory visit to a cosmetology school in Pennsylvania, William 
Stephens (NASAA President) had to explain this ``short fall'' in 
benefits to both a Pennsylvania National Guard member (with over 36 
months of active duty) and the father of a National Guard member who 
had transferred his benefits to his daughter so she could obtain her 
cosmetology education and license. Both thought they could use their 
earned Chapter 33 benefits at this institution and now have a potential 
large shortfall in their benefits. They were both understandably 
frustrated. They had earned the benefits and should be able to use them 
(or give them to their dependents) at the approved institution of their 
choice.
H.R. 4079
    This bill would remove the requirement for employers to increase 
wages for veterans enrolled in on-the-job training programs. It is 
necessary due to the difficult economic times. This would be a 
temporary waiver (5 years) of the mandatory wage increase for private 
sector employers to participate in the VA on-the-job training program. 
It will allow veterans to utilize their GI Bill as they pursue job 
training and careers consistent with the promise of the GI Bill.
    Difficult economic times that contribute to wage freezes or wage 
reductions in the private sector impacts veterans seeking OJT benefits 
from the approval perspective as wage increases are required in the 
private sector only. The quality of a training program is not 
predicated on wage increases.
    A national survey completed by the National Association of State 
Approving Agencies (NASAA) found that 22 of 30 States that are active 
in the on-the-job training program have identified lost approval 
opportunities due to the wage increase requirement.
    As an example, in Missouri, it is estimated more than 20 employers 
have not qualified for approval due to the wage increase requirement 
since mid FY 2009. Some of these companies are nationally known while 
others represent the small business sector. The impact of the GI Bill 
through the on-the-job training program is enormous.
    The product created by passage of H.R. 4079 is a level playing 
field for veterans opting for on-the-job training. The wage increase 
requirement for public sector employers was removed several years ago 
(based on the same rationale) as State, county, and municipal budgets 
flat lined.
    Employers, both private and public, are not allowed to pay less in 
wages to eligible veterans/reservists/dependents than other similarly 
qualified trainees. This is a regulatory requirement and is monitored 
by State Approving Agencies. The passage of this bill will allow 
eligible veterans/individuals to use their earned benefits during these 
difficult economic times at programs that are approved and monitored by 
State Approving Agencies.
H.R. 3948
    This bill would include the payment of Chapter 33 benefits for test 
preparatory courses for a test that is required or used for admission 
to an educational institution. Currently Chapter 33 eligible 
individuals can use their benefits for one licensure or certification 
test reimbursement. This bill will expand the opportunities and permit 
eligible individuals to use their earned benefits in obtaining 
admission to educational institutions. We support this bill and 
recommend that additional consideration be given to expanding the 
number of test preparatory courses and the number of tests for 
licensure or certification for which veterans can use their earned 
benefits.
H.R. 3579
    This bill would increase the reporting fees paid to institutions 
for their role in administering the GI Bill. The current fee structure 
($7.00 for regular enrollments and $11.00 for advance pay enrollments) 
has been in force for over 30 years. It is time for an increase. 
Certifying Officials at the various institutions are a ``key'' player 
to the success of the GI Bills. They are the ``front line'' and have 
the most contact/interaction with veterans/reservists/dependents. As a 
side note, some Certifying Officials are able to use these funds for 
travel to training sessions sponsored by State Approving Agencies and/
or Department of Veterans Affairs. It is time to increase their 
reporting fee.
H.R. 3484
    This bill would extend the authority for veterans to use the work 
study program while assisting with the preparation and processing of 
papers and other documents at educational institutions or facilities of 
the VA and working in support of certain other veteran related 
activities at the Federal and State level, such as outreach activities 
conducted by the VA and State Approving Agencies. Many veterans find it 
necessary to supplement their benefits by working. The work study 
program has been very successful and not only provides eligible 
veterans a method to increase their income while in school but also 
provided a substantial amount of workers for Department of Veterans 
Affairs, State Approving Agencies, and educational institutions. An 
extension of these other activities is a ``win-win'' situation.
H.R. 4203
    This bill would ensure veterans have the opportunity to use direct 
deposit of their benefits. This approach to the payment of benefits not 
only provides a secure and fast method for the veteran/individual to 
receive his/her benefits, it also is more efficient for the Department 
of Veterans Affairs, thus, saving staff time.
Closing
    We encourage the leadership and members of this Committee to take a 
firm and aggressive stand in promoting the enactment of the bills 
discussed above. We would also like to respectfully request your 
support for another bill, H.R. 4571, which was just introduced by 
Representative Sestak from Pennsylvania. This bill would increase State 
Approving Agency funding. As we have discussed before, funding for SAAs 
has remained at $19 million for the past 5 years and with the increased 
workload associated with the Post-9/11 GI Bill and increased operating 
costs, many State Approving Agencies are in crisis. Some are finding it 
necessary to decrease staff for this current fiscal year. Now is not 
the time to decrease the service for those who have served (or are 
currently serving) our country. We have provided written documentation 
on the rationale to increase SAA funding. We are available to provide 
additional detail on our request and look forward to working with the 
Subcommittee on H.R. 4571 or similar legislation which the Committee 
may consider.
    Thank you Madam Chairwoman and Members of the Subcommittee for the 
opportunity to address you today. We would be pleased to respond to any 
questions that you have.

                                 
      Prepared Statement of Colonel Mark E. Sullivan, USA (Ret.),
           Law Offices of Mark E. Sullivan, P.A., Raleigh, NC
                              Introduction
    Thank you for the opportunity to testify today. I appreciate being 
able to discuss H.R. 4469 with you. I am a retired Army JAG colonel and 
the author of The Military Divorce Handbook (American Bar Association 
2006). I have practiced law in Raleigh, North Carolina for over 30 
years, and much of my work involves military divorce issues. I have 
been a leader in the American Bar Association on military custody and 
visitation matters for over 10 years, and in the North Carolina State 
Bar for 30 years. I've helped State legislatures and bar associations 
with military custody and visitation bills in the States of Alaska, 
Washington, New Mexico, Iowa, Kansas, Ohio, Indiana, Mississippi, 
Alabama, Virginia, Vermont, Georgia, New Jersey and Rhode Island. In 
the past 30 years, I have chaired the American Bar Association's 
Standing Committee on Legal Assistance for Military Personnel, the 
Military Committee of the ABA Family Law Section, and the military 
committee of the North Carolina State Bar. I served on the ABA Special 
Committee on Protecting the Rights of Servicemembers, and I am now a 
liaison to the National Conference of Commissioners on Uniform State 
Laws on military custody and visitation legislation.
    Today our deployed troops in Iraq, Afghanistan are fighting 
insurgents and suicide bombers on the battlefield and, increasingly, 
custody and visitation battles at home. For many of them, obeying the 
call to duty (meaning mobilization for National Guard and Reserve 
personnel and deployment overseas for those on active duty) can mean 
visitation and custody problems on the home front. I have been fighting 
this battle for servicemembers for most of the last decade, helping to 
create language and legislation for State legislatures to grant custody 
and visitation protections for our servicemembers.
    All of this work was in the halls of State government. It is not 
the province of Federal law to provide detailed and specific 
instructions on how to handle child custody cases, whether these 
involve custodial parents who are members of the armed forces, the 
State Department, the Central Intelligence Agency or the Federal civil 
service. Congress should not interject itself into writing rules for 
custody and visitation; this is the responsibility of State courts.
    Some say, ``We have a national military--for that we need a 
national standard'' for custody. Not true. This simplified statement 
betrays a fundamental misunderstanding of the nature of our republic--
50 States with their own laws, a Federal Government for those powers 
set out in the Constitution. If the ``national military--national 
standard'' argument contained any truth, then we'd have a national set 
of laws for servicemembers on drivers' licenses, voting requirements, 
the age of majority, and a host of other issues. The truth of the 
matter is that Congress has always deferred to the governments of the 
50 States to enact and apply appropriately crafted legislation in the 
area of domestic relations, even when it affects military personnel. 
There are 50-plus different laws on child support for military 
personnel. Pension division upon divorce is a 50-state affair as well; 
the rules differ from place to place. The rules also differ among the 
States as to what the courts may do with Survivor Benefit Plan coverage 
upon divorce. States have always been solely responsible for the 
subject of custody and visitation in cases involving military parents.
    That would come to an end with the passage of H.R. 4469. This 
radical revision of the Servicemembers Civil Relief Act (SCRA), which 
would apply only to the small number of single military parents who 
have custody of a child, would:

      preclude courts from permanently changing custody while a 
military parent is deployed;
      require resumption of custody upon the servicemember's 
return from deployment, unless the reinstatement of custody is not in 
the best interest of the child; and
      bar courts from considering a military parent's 
deployment or possibility of deployment as a basis for determining the 
best interest of the child in custody modification cases.

    All of these are admirable proposals, and ones which need to be 
added to the laws in those states ``about a third of the fifty'' that 
do not have such protections. Most of the States already have 
legislation to protect military custody rights. Our own North Carolina 
statute, Section 50-13.7A of our General Statutes, provides these and 
more protections for military members. It's there because of our 
efforts in the State legislature, and because that's where it belongs--
in a State statute, not in the Federal code. Rep. Mike Turner's heart 
may be in the right place; his custody bill is not. Passage of H.R. 
4469 would create serious and expensive trouble for troops, for 
children, for ex-spouses--all in the name of a principle to which we 
all subscribe, namely, protecting the rights of servicemembers and 
their children during deployment, mobilization and other military 
absences.
    Congress should not be directing our courts, whether State or 
Federal, on how to look after the best interest of a child, and yet 
this is exactly what the proposed legislation does. Our own Supreme 
Court stated:

        The issuance of [custody] decrees . . . not infrequently 
        involves retention of jurisdiction by the court and deployment 
        of social workers to monitor compliance. As a matter of 
        judicial economy, State courts are more eminently suited to 
        work of this type than are Federal courts, which lack the close 
        association with State and local government organizations 
        dedicated to handling issues that arise out of conflicts over 
        divorce, alimony, and child custody decrees. Moreover, as a 
        matter of judicial expertise, it makes far more sense to retain 
        the rule that Federal courts lack power to issue these types of 
        decrees because of the special proficiency developed by State 
        tribunals of the past century and a half. . . .

        Ankenbrandt v. Richards, 504 U.S. 689, 703-704 (1992)
               Positive Results--A Majority of the States
    Were the States failing to act in this area to protect the rights 
of servicemembers and their children, it would rightfully raise the ire 
of those in Congress, as well as the citizens who elect State and 
Congressional representatives. That is not the case, however. The 
States can--and are--acting creatively to protect the custody rights of 
our mothers and fathers in uniform. Today about two-thirds of the 
States--32 in all--have passed legislation, and about 10 have bills 
pending, to provide significant protections for the rights of military 
personnel, all of them more extensive than the terms of H.R. 4469. In 
just the first 6 months of 2008, for example, military custody bills 
became law in Iowa, Virginia, Mississippi, North Dakota and Kansas. 
States which are currently working on military custody and visitation 
legislation include Alaska, Iowa, Ohio, Indiana, Alabama, Vermont, 
Georgia, New Jersey, Hawaii and Rhode Island.
    Dire consequences would follow were Congress to intrude on the 
significant protections and creativity demonstrated by the States, thus 
stifling the unique initiatives that they have enacted for the 
protection of parents in uniform. And the protections offered by State 
legislation are significantly better for military personnel than the 
terms of H.R. 4469. Many State statutes provide for the use of 
electronic means of testimony for servicemembers. Where is that in H.R. 
4469? They allow expedited dockets for those who wish to put their 
affairs in order before deployment. They take into account mobilization 
for Guard/Reserve personnel, as well as temporary duty (TDY) when these 
situations mean an unaccompanied tour of duty. They deal with all forms 
of active duty, including humanitarian missions and remote tours of 
duty, not just contingency operations. They mandate the availability of 
the child or children for visitation during periods of leave for 
servicemembers. Where are those protections in H.R. 4469? That's why we 
need to leave the heavy lifting in this area to the States, rather than 
try to usurp their initiatives and trample on their laws.
    And--most significantly--these State statutes and bills deal with 
the issue of visitation for servicemembers who do not have custody. 
This is an issue on which H.R. 4469 is silent, the visitation rights of 
military parents. It's completely left out of the bill, as if the 
drafters were not even aware that--of those servicemembers who have 
minor children--most are not custodial parents. The demands of military 
life generally require release of custody into the hands of the non-
military parent. By an overwhelming majority, the usual arrangement for 
single parents in the armed forces is visitation rights, not custody. 
According to Defense Department regulations, first-term single enlisted 
parents cannot have legal custody of a minor child. The States are well 
aware of these facts. In addition to statutes allowing compensatory 
visitation for time lost due to military duties, many States are 
passing bills which let the judge delegate the visitation rights of a 
parent in uniform to a close family member if this is in the best 
interest of the child. There are no rights for military parents with 
visitation rights in H.R. 4469.
    Whether for custodial parents or visiting parents, the laws of 
about two-thirds of the States already provide strong protections and 
creative approaches to the rights of servicemembers. And the continued 
efforts of the States should not be stifled by the application of rigid 
Federal rules nationwide for cases which are always unique on their own 
facts. The passage of an overarching gridwork of Federal law in a field 
which has always been reserved for the States will completely destroy 
the initiative of those States which are considering initial 
legislation or thinking about improving their current laws to protect 
military members and their children. ``Why bother?'' they'll say. ``Why 
make the effort, when Congress has already told us what the outcome 
must be, each and every time? We know what Congress wants, it's already 
in the Federal code. Why should we do anything more for military 
parents?'' The States are universally opposed to such legislation; a 
simple inquiry to the State bars and bar associations will provide the 
proof. No one who is in charge of State custody laws wants a Federal 
statute which dictates custody outcomes.
    The heavy-handed Federal intrusion set out in H.R. 4469 is a major 
mistake. Why should any State participate in developing new bills and 
creative concepts (such as delegated visitation rights, visitation 
rights during mid-term leave, protections against waiver of visitation 
rights, and advance notice of military absence), as is occurring right 
now, when ``Uncle Sam'' can take over and just dictate the outcome? 
Congress should not place a roadblock in the path of States' abilities 
to craft strong and creative protections.
    This bill would not only wipe out any incentive at the State level 
to create or improve State laws for the protection of servicemembers. 
It would also pre-empt, under the Supremacy Clause of the Constitution, 
the laws of the several states when they come into conflict with the 
strictures of H.R. 4469. Any law which provides a different level of 
protection (other than a higher one) would be of no effect. No State 
remedy would prevail when faced with the clear dictates of Federal law.
    When it comes to prompting passage of certain laws on the State 
level, the United States Congress knows well how to encourage action by 
State legislatures. If that is what's desired, there is a 
straightforward solution. In past years, the passage of the Uniform 
Interstate Family Support Act by all of the states, and the universal 
enactment of substantial child support reforms (including mandatory 
child support guidelines and expedited process for pending child 
support cases) were brought to fruition by the ``encouragement'' of 
Congress in the form of proposed withholding of IV-D funds from the 
States.
      Twisting the Purpose of the Servicemembers Civil Relief Act
    The American Bar Association, which opposes this bill, has long 
been a strong supporter of the SCRA as a vital shield that helps ensure 
servicemembers rights are not unduly prejudiced by virtue of their 
service. The purpose of the SCRA regarding courts and litigation is to 
provide procedural protections (protection against default judgments, 
appointment of counsel, stay applications) for military personnel, not 
to grant them substantive rights regarding family law issues. This bill 
goes against 70 years of history behind the SCRA and its predecessors. 
The Act was passed to create a shield against default judgments, 
against judges who refused to allow continuances when military duties 
were involved, against unscrupulous creditors. It was not enacted to 
dictate the outcome in cases involving divorce and domestic relations. 
It should not be used for that now. Moreover, the bill would seriously 
weaken the broad protections of the SCRA, because only child custody 
matters will be deemed to have been intended to be addressed by 
Congress in regard to family law disputes. We should not run the risk 
of unintentionally undermining current SCRA protections.
                          Why the Opposition?
    On four occasions since 2007 a bill has been introduced which would 
add custody terms for military parents into the U.S. Code. And on four 
occasions Congress said NO. Why? Let's take a look at who is in favor 
of custody protections for military personnel but opposes this bill. 
Who has stood up to this bill and said it was a bad idea?
    Senator John McCain--a staunch supporter of the rights of 
servicemembers--has led the way in refusing to sign on to the idea of 
changing the Servicemembers Civil Relief Act in so radical a way. In a 
letter of July 28, 2009 to Rep. Mike Turner, Senator McCain noted that:

        Child custody laws and litigation, as you know, have 
        traditionally been the province of the States. I suggest that 
        we need to proceed with care in considering Federal legislation 
        that would preempt the States in their approaches to the child 
        custody issues you have identified. I have been informed, for 
        example, that 29 States have enacted laws providing guidance 
        and direction to their own State courts about what standards to 
        apply in cases involving military parents. I'm not convinced at 
        this point that there needs to be a nationwide standard in view 
        of the historical Federal deference to the State legislatures 
        and the obvious concern that the States have shown about this 
        issue.

        I also have some concerns about the opposition that has been 
        raised to your proposal from Associations with expertise in 
        this area. The Senate Veterans' Committee, the committee with 
        jurisdiction over the Servicemembers' Civil Relief Act, has 
        opposed the legislation you have advanced. In addition, the 
        American Bar Association, led by its Standing Committee on 
        Legal Assistance for Military Personnel, issued a resolution in 
        February 2009 that opposed modifying the SCRA in the way you 
        have suggested.

    The Department of Defense, also a strong advocate of protecting the 
rights of military personnel, has likewise stood up to H.R. 4469 in its 
previous versions. Secretary Robert Gates, in a letter to Rep. Turner 
dated September 25, 2009, emphasized the positive actions which could 
be taken, and the lack of need for an amendment to the SCRA:

        Our General Counsel has reviewed the various state law 
        protections for Servicemembers. We find that, at present, some 
        level of protection for Servicemembers facing child custody 
        issues exists in approximately 28 States, but the States' 
        approaches to the issue vary widely. Many of these variances no 
        doubt reflect different societal dimensions of the problem in 
        different communities across the country. Thus, we have 
        concluded that it would be unwise to push for Federal 
        legislation in an area that is typically a matter of State law 
        concern.

        However, we have identified a number of steps that the 
        Department of Defense should take in this area:

        First, I plan to personally contact the governors of each of 
        the States that have yet to pass legislation addressing the 
        special considerations of child custody cases in the military 
        to urge them to pass such legislation. I will also ask the 
        Chief of the National Guard Bureau to follow-up with the 
        Adjutant General of each of those states on the issue.

        Second, we will include concerns over child custody matters on 
        the list of the Department's 10 Key Quality of Life Issues that 
        will be presented to governors, State legislators and other 
        State officials. On September 22, a representative from the 
        Department's Office of Legal Policy and an expert in military 
        child custody cases met with each of the Department's 10 
        Regional State Liaisons and discussed military child custody 
        issues. These liaisons will now aggressively reach out to State 
        officials whose legislatures have not addressed military 
        custody concerns to provide them with appropriate and effective 
        draft language. Further, the liaisons developed a general 
        strategy for focusing on those States with the largest military 
        populations.

        Third, I will ask the military service Judge Advocates General 
        and Staff Judge Advocate to the Commandant to ensure they are 
        doing all they can to work with the American Bar Association 
        (ABA) to publicize, emphasize and support the ABA's national 
        pro bono project. This project can provide our Servicemembers 
        free legal representation from some of the country's most 
        accomplished child custody practitioners. The pro bono project 
        is run in concert with judge advocates from each of the 
        Services, who work closely with the ABA to ensure our 
        Servicemembers receive the best possible representation.

        Fourth, the Department is engaged with the military services to 
        update and standardize Family Care Plans (FCPs) across the 
        services. FCPs are developed to ensure that families are taken 
        care of during times of drills, annual training, mobilization 
        and deployment. FCPs include provision for long-term and short-
        term care, care and support for children, and financial 
        arrangements including power(s) of attorney. The Department has 
        recognized that improvements to its FCP guidance can address 
        many of the custody issues that otherwise too often result in 
        litigation after deployment. By clarifying those who require a 
        FCP and emphasizing the importance of custody negotiations with 
        the non-custodial parent early in the process--before 
        deployment--the issues that most often give rise to litigation 
        can largely be avoided. The Department is convinced that these 
        efforts can resolve far more issues in favor of our 
        Servicemembers than can new Federal legislation.

    Why would the proponents of this bill ignore Secretary Gates? It is 
the job of Dr. Gates to ensure that our military personnel have the 
resources and protections necessary to defend the Nation. Surely he 
should be granted some deference by Congress, since he is the single 
person in the Nation whose responsibility it is to maintain the morale, 
fitness, and retention goals of our armed forces. And yet the Defense 
Department opposes this bill.
    Also opposed is the American Bar Association. In Resolution 106, 
passed in February 2009, the ABA went on record as rejecting the ill-
conceived ideas previous set out in H.R. 5658 in the 110th Congress, 
because this would----

      allow Federal courts to exercise jurisdiction in child 
custody cases, including matters which involve military parents
      dictate case outcomes in State child-custody cases
      run roughshod over the powers of State courts in custody 
cases involving servicemember parents, and
      pre-empt the growing body of State laws which 
comprehensively address servicemembers' needs in the child custody 
area.

    The ABA supports study of the problem of military custody and 
improvement of Family Care Plan regulations, as well as funding for 
enhanced legal assistance as an entitlement for military personnel. The 
association supports the study of military custody issues mandated by 
Section 572 of the 2010 National Defense Authorization Act (report as 
to ``all known reported cases since September 2003 involving child 
custody disputes in which the service of a member of the Armed Forces, 
whether a member of a regular component of the Armed Forces or a member 
of a reserve component of the Armed Forces, was an issue in the custody 
dispute''). And the ABA is on record as firmly opposing the denial of 
child custody to servicemembers based solely on their absence.
    And finally, the bill is opposed by the National Military Family 
Association. For over 40 years, the NMFA has been the only national 
military organization that has represented officers, enlisted personnel 
and their family members from all branches of the armed forces. Its 
sole focus is the military family, and its goal is to create and 
support policies that will improve the lives of families in the 
military services. Why has amending the SCRA in this way generated 
opposition from even the NMFA, if its purpose is purely beneficial? The 
NMFA, in a letter dated July 21, 2009 to Senators Benjamin Nelson and 
Lindsey Graham of the Senate Armed Services Committee, stated that:

        We would also like to urge your support of the American Bar 
        Association's (ABA) Resolution 106 concerning child custody and 
        servicemember-parents. Based on our experience, we agree with 
        the ABA that Federal intervention in what has traditionally 
        been a State matter would be burdensome to the States would 
        also go a long way in alleviating confusion and misconceptions 
        about the Servicemembers Civil Relief Act.
                         Reasons for Opposition
    The House should turn down H.R. 4469, a bill which would insert 
substantive custody provisions into the Servicemembers Civil Relief 
Act, including specific requirements for modification and enforcement 
of custody orders when a military custodian is deployed. There are a 
few foolish reasons to oppose such legislation. I have encountered 
these while fighting for State legislation to protect our military 
personnel and their children.
    One such reason is the argument that servicemembers do not need 
unique protections in custody matters, and that there is no reason for 
choosing a special group for protection in custody cases. Those who 
argue in this way have no real understanding of the importance of 
military service--and the need to protect those who go in harm's way--
when they have children who are subject to custody or visitation orders 
back home. They need and deserve our efforts to assist them--our best 
efforts. That's why I'm here to testify.
    But just because there are foolish reasons to oppose this bill 
doesn't mean that we should overlook the good reasons why it shouldn't 
pass. And there are many.
                   Welcome to the Federal Courthouse!
    The worst of dire consequences is litigation of military custody in 
Federal court. Imagine what would happen if litigants in military 
custody cases had another door open to them, namely, Federal courts. 
All of a sudden, making a Federal case out of it becomes a real option, 
not a mere throw-away phrase.
    Do we want Federal judges trying custody cases? Or Federal marshals 
sent to retrieve children from school to testify in court? What kind of 
budget would a servicemember (or a former spouse) need for Federal 
custody litigation? Who will represent these servicemembers? They are 
not entitled to the provision of legal representation in court for such 
cases by the military, so this will require them to hire additional 
lawyers for complex litigation in multiple courts and perhaps in 
multiple States. The increased workload for our Federal trial-level 
judges and marshals is hard to imagine. The increased cost for military 
single parents is obvious. If you think that these cases are expensive 
now, wait till you start talking to constituents who've been told by 
their domestic attorneys, ``Now we're in Federal court!'' Has anyone 
apprised the House Judiciary Committee of this tremendous expansion of 
Federal court powers?
    It is well-settled that, where there is a specific remedy 
enumerated and prescribed by Federal statute, the litigant has the 
right to have that issue determined in the Federal courts. Puerto Rico 
v. Russell & Co., 288 U.S. 476, 53 S.Ct. 477, 77 L.Ed. 903 (1933): 
``Federal jurisdiction may be invoked to vindicate a right or privilege 
claimed under Federal statute.'' Id. at 483. The Federal rights set out 
in H.R. 4469 will lead directly to Federal court involvement in 
military custody cases.
                   No Federal Right of Action . . . 
    Of course, some say that the bill is buttoned up and bulletproof on 
Federal litigation, since it contains a clause, Sec. 208(d), which 
asserts that ``Nothing in this section shall create a Federal right of 
action.'' Unfortunately, little thought went into the implications of 
opening up new Federal rights while trying to close the door on Federal 
remedies. The statement about not creating a Federal right of action 
means little, since there are several other ways that creative counsel 
can get a case involving Federal rights into the Federal courts. No one 
has examined these and, since this bill hasn't been reviewed by the 
House Judiciary Committee, nobody has really thought through the issue 
of Federal court jurisdiction and the enhanced litigation that this 
bill would create throughout the Nation in military custody cases.
              Still Available--Removal and Other Remedies
    For example, if counsel wants to avoid unpleasant results in State 
court, the procedure of removal to Federal court is the logical next 
step. While H.R. 4469 doesn't create a Federal right of action, it says 
nothing about the existing remedy of removal under 28 U.S.C. 1441. 
That's because nobody thought about removal. Such a transfer will add 
months and months onto the custody litigation, while a Federal judge 
decides whether to take the case or remand it back to State court. 
That's months and months of time ticking against the servicemember who 
thought that H.R. 4469 was there to help him or her; now it's the sole 
reason why counsel fees are spiraling out of control at the rate of $5-
10,000 a month. How does that protect Sergeant Jane Doe's custody 
rights when she returns from deployment? How will she afford litigation 
in two courts instead of just one? Why would we want to open the door 
of Federal rights when it's clear that a Federal remedy must be given 
to those who are protected by this law? It's simple: there's nothing in 
H.R. 4469 which bars removal to Federal court.
    While we're talking about removal, why not look into a specific 
basis for removal jurisdiction? It's found in Title 28 of the U.S. 
Code, Section 1442a. The statute provides:

        A civil or criminal prosecution in a court of a State of the 
        United States against a member of the armed forces of the 
        United States on account of an act done under color of his 
        office or status, or in respect to which he claims any right, 
        title, or authority under a law of the United States respecting 
        the armed forces thereof, or under the law of war, may at any 
        time before the trial or final hearing thereof be removed for 
        trial into the district court of the United States for the 
        district where it is pending in the manner prescribed by law, 
        and it shall thereupon be entered on the docket of the district 
        court, which shall proceed as if the cause had been originally 
        commenced therein and shall have full power to hear and 
        determine the cause.
    Does this apply where a servicemember is sued for a change of 
custody? Let's set out the elements and analyze it:

      Sergeant Jane Doe has been sued in ``a court of a State'' 
regarding custody.
      She is ``a member of the armed forces of the United 
States.''
      There is a case against her and it is a ``civil 
prosecution.''
      And she would be relying on the rights prescribed for 
her; those rights, if H.R. 4469 were passed, would be in the 
Servicemembers Civil Relief Act.
      These rights are ``under a law of the United States 
respecting the armed forces thereof,'' since the Servicemembers Civil 
Relief Act is, of course, such a law.
      And thus the State court case may be removed into Federal 
district court, where the Federal judge would have full power to hear 
and determine the cause.

    So we're in Federal court, trying a custody case! How's that for a 
dire consequence of H.R. 4469?
    When a servicemember's case may be decided contrary to H.R. 4469, 
there is another remedy--a declaratory judgment suit in Federal court. 
Such an action is brought under 28 U.S.C. 2201-2202. It involves these 
elements: 1) a contested case, 2) within the jurisdiction of the 
Federal district court, 3) involving a declaration of the rights and 
other legal relations of any interest party, and 4) whether or not 
further relief is sought. This is another pathway to Federal court 
which H.R. 4469 would not limit. Perhaps the proponents of this bill 
didn't think of that.
    Yet another portal of entry into the Federal courthouse is a civil 
rights action. When a client believes that his or her civil rights have 
been violated by the other party in regard to the terms set out in H.R. 
4469, a good lawyer would recommend suing in Federal court for a civil 
rights violation. Such an action would be brought under 42 U.S.C. 1983. 
Once again, the bill would open the door to such a filing, based on the 
Federal ``rights'' granted in H.R. 4469. But no one thought about that 
either.
                        Right Rules, Wrong Place
    These problems and omissions in H.R. 4469 show clearly the error in 
trying to insert into the U.S. Code a set of rules for State custody 
cases when these issues should properly be left for State decisions; 
State lawmakers have far more knowledge about these matters than 
members of Congress, who have never before enacted substantive custody 
rules and placed them into Federal law. This bill is a significant 
departure from the long-standing case authority and congressional 
history against involvement of Federal courts and Congress in domestic 
relations matters. It represents a huge expansion of the limited grant 
of authority to Article III courts under the Constitution, which 
restricts Federal judicial power to specified subjects such as 
interstate commerce, national defense and international matters. This 
is a respectful acknowledgment of State laws and courts, which have 
preeminent powers and expertise in the remaining areas of litigation.
    Why have the proponents pushed so hard on passage of this ill-
advised usurpation of State laws and protections for military 
personnel, when they have consistently refused to work with the 
American Bar Association in fashioning any Federal alternatives to this 
legislation? Why are we not spending the time to do something which 
might actually help military families, such as implementing the 
American Bar Association's standing resolution to provide an 
entitlement to legal assistance for servicemembers and their families? 
A Federal commitment to provide funding for attorneys at military bases 
would go a long way in giving real help to members of the armed forces 
who need it. It would put on the front burner the important need for 
legal assistance at each post, camp or station around the world. It 
would provide a first line of defense for the man or woman in uniform 
who needs the assistance of a lawyer with domestic problems and other 
matters. Why not push for this remedy for all our men and women in the 
armed forces, rather than solving a non-problem for a small fraction of 
single parents?
                             Further Flaws
    There are numerous other errors or limitations in H.R. 4469 which 
have been poorly thought through.

      Contingency operations are covered. What about 
humanitarian missions? Why should the troops involved in these be 
treated differently than those who are on contingency missions?
      What about temporary duty, or TDY? Why the different 
treatment of these troops? Why are they not covered?
      And what about remote or any other unaccompanied tours of 
duty? These troops should receive the same protections. Why did the 
proponents of this bill ignore them?
      Why is there no coverage for mobilization of Reservists 
in support of a deployment (``backfill''), taking these parents far 
from the children's homes, but yet not sending them on a deployment?
                           Where's the Beef?

    Some say that there are courts where judges are taking away custody 
from servicemembers based on their deployment. Let's talk about that 
claim. Where are the cases which would be ``correctly decided'' if H.R. 
4469 had been enacted 4 years ago? Or even last year? What decisions 
would have gone the other way? Too often supporters of this bill have 
given in to faddish pessimism and media-driven doubt, relying on 
unsupported claims rather than doing their homework. It's time to hit 
the ``pause button'' for a few moments. What's really happening ``on 
the ground'' and why do we need such a bill? Where's the problem?
    There's a saying, ``When your favorite tool is a hammer, all your 
problems begin to look like nails.'' That aptly describes the theory of 
H.R. 4469--create a solution, then search for a problem that needs such 
a remedy. I'm familiar with all of the news-account cases on military 
custody. I've viewed most of the tragic stories about parents who face 
legal battles regarding custody which have ended up in the electronic 
or print media. I have been quoted in several of these stories, in 
fact. It's vital to take a long, hard look at the cases and individuals 
that proponents of this bill have claimed would have been helped if 
this bill were passed. Would H.R. 4469 have been the salvation of the 
military member in many of these cases?
    The fact is that none of them would have benefited from this bill. 
Not Lieutenant Eva Slusher in Crouch v. Crouch in the Kentucky Supreme 
Court. She was not deployed, she was mobilized and stayed in Kentucky 
for 11 months; then she allowed another 7 months to elapse before she 
asked for the return of her child. At the time she was mobilized, the 
father had custody; court order stated that the child should ``be 
allowed to reside with the Petitioner [appellee] until further Orders 
of the Court.''
    Nor would this bill change the outcome for Tanya Diffin of Diffin 
v. Towne fame in New York. The same is true for Lieutenant Colonel 
Vanessa Benson, whose case in Florida was largely resolved last 
December with a return order for the child was signed by the judge 
there. The same applies to New Hampshire National Guard member Lisa 
Hayes, Army Reserve First Lieutenant Tira Bolder, Army Specialist 
Alexis Hutchinson at Ft. Stewart, Marine Corporal Levi Bradley, 
Specialist Lisa Pagan of Ft. Benning, and not Specialist Leydi Mendoza 
of the New Jersey National Guard. If H.R. 4469 had been enacted 4 years 
ago, not one of these cases would have had a different result. In 
reality, the problems which occasionally make the headlines are caused 
by poor lawyering, misuse of the SCRA and the rules of custody (to 
attempt to retain custody with a step-parent or grandparent, instead of 
the child's other parent), or lack of training for the servicemember's 
lawyer in the area of military custody and the SCRA.
                       Solutions Without Problems
    The bill is a solution in search of a problem, and one that would 
cause dire consequences for troops, for their children and for ex-
spouses in regard to child custody. The proposed legislation would not 
have the desired effect on servicemember custody disputes but would 
create unfortunate, costly and easily foreseeable new consequences in 
these cases.
    The States have already taken this matter in hand by the rapid-fire 
enactment of strong and creative legislation to protect military 
personnel who have custody. They continue to do so. The bill would 
disrupt the carefully crafted State custody laws which are in place and 
which already provide a fair and even-handed system of handling child 
custody cases. We want to encourage the States to continue the rapid 
pace of passing legislation that provides fully for the protection of 
servicemembers with custody, rather than ride roughshod over their 
efforts by passage of preemptive Federal legislation in an area which 
is inappropriate for Federal legislation.
    In addition, the Military Committee of the ABA's Family Law Section 
is working closely with legislatures and bar associations in those 
States which are still considering such legislation. Last year we 
posted a guide on how to write a military custody statute on the 
Committee's Web site, which is an open web resource available to 
anyone, regardless of membership in the ABA.
    And finally the National Conference of Commissioners on Uniform 
State Laws (NCCUSL) has just designated a project for the drafting of a 
model act for military custody and visitation protections. The issues 
expected to be covered include all three terms in H.R. 4469, as well as 
numerous other protections for the troops and their children, as 
outlined above in this testimony. The first meeting of the committee is 
in April.
    Significant steps have been taken by the States, with about two-
thirds responding to the call already. The American Bar Association and 
NCCUSL are also leading the way in creating legislation to protect 
military personnel. The bill contains major flaws and would lead to a 
major intrusion into Federal court for troops and ex-spouses, 
difficulties which would cost them dearly in time and money. This 
Subcommittee should reject H.R. 4469.

                                 
           Statement of Colonel Shawn Shumake, USA, Director,
    Office of Legal Policy, Office of the Under Secretary of Defense
    (Personnel and Readiness), Program Integration and Legal Policy,
                       U.S. Department of Defense

    Chairwoman Herseth Sandlin and Members of the Subcommittee, thank 
you for extending the invitation to the Department of Defense to 
address H.R. 3976 and H.R. 4469.
H.R. 3976
    This bill would amend Section 2203(c)(2) of the Housing and 
Economic Recovery Act of 2008 (HERA) (Public Law 110-289) by extending 
the sunset provision of the foreclosure protections of section 303 of 
the Servicemembers Civil Relief Act (SCRA), Public Law 108-189 (2003) 
(50 U.S.C. App. Sec. Sec. 501-596) from January 1, 2011, to January 1, 
2016. Currently, a servicemember's obligation on real or personal 
property secured by a pre-service mortgage or mortgage type obligation 
may not be foreclosed on for 9 months after leaving active duty, absent 
a valid court order. Also certain delay provisions for court actions 
involving such mortgages are also in effect for the same 9-month 
period. Under the proposed change, these 9-month periods would not 
revert to the previous 90-day periods until January 1, 2016.
    The Department supports H.R. 3976.
H.R. 4469
    This bill would add new sections to the Servicemembers Civil Relief 
Act (SCRA), Public Law 108-189 (2003) (50 U.S.C. App. Sec. Sec. 501-
596) and establish one-size-fits-all Federal child custody legislation. 
The Department opposed similar legislation in the FY 2008 and FY 2009 
House National Defense Authorization bills and formally appealed 
identical legislation in the FY 2010 House National Defense 
Authorization bill. Although we appreciate the goals of this 
legislation, and the efforts of its proponents to support our 
servicemembers, our concerns and opposition remain.
    Federal efforts to legislate matters of child custody would disrupt 
State domestic schemes; discourage passage of broader, more helpful 
State laws; and increase, cost, delay, and uncertainty due to increased 
Federal oversight of the State courts. The Department recognizes the 
complexities of such cases and the difficulties in balancing the 
interests of the servicemember against the best interest of the child, 
as impacted by the parent's absence due to military service. The 
Department believes that the states are in the best position to balance 
these interests within the context of their own domestic relations 
laws.
    The Department applauds the efforts by the more than 30 States that 
have already passed legislation addressing the special circumstances 
facing military parents who have dropped their own affairs to take up 
the burdens of the Nation. Working through its State Liaison program, 
the Department can report remarkable progress just since last 
September: about 15 of the remaining States are currently actively 
considering specific military specific child custody legislation and 
there is general interest in similar legislation in several more 
States.
    Apart from the disruption to the State laws already in effect and 
those currently under consideration, the risk of requests for Federal 
court oversight of the State implementation of Federal child custody 
law creates an unacceptable risk of stress and disruption for our 
servicemembers who would face increased cost, delay, and uncertainty in 
litigating these matters both in State and Federal court. Such stress, 
cost, and disruption would exacerbate already difficult circumstances.
    In addition, H.R. 4469's focus solely on ``judgment cases'' (i.e., 
where custody has already been granted by a court) brought during a 
contingency operation is arbitrarily narrow and would be better handled 
by the Department's ongoing efforts to redraft its Family Care Plan 
(FCP) Instruction. The Department has recognized that improvements to 
its FCP Instruction can address many of the issues that otherwise might 
result in custody litigation arising after deployment. By expanding the 
categories of servicemembers who require an FCP and emphasizing the 
importance of custody negotiations with the non-custodial parent early 
in the process before deployment, the risk of litigation can be greatly 
lessened. The Department is convinced that these efforts, in 
conjunction with the significant protections already available under 
the SCRA and provided by the States, will resolve far more issues in 
favor of parents who are Servicemembers than will additional Federal 
legislation--and will do so without the risks discussed above.

                                 
 Prepared Statement of Keith M. Wilson, Director of Education Service,
 Veterans Benefits Administration, U.S. Department of Veterans Affairs

    Good afternoon Madam Chairwoman, Ranking Member Boozman, and other 
Members of the Subcommittee. I am pleased to be here today to provide 
the Department of Veterans Affairs (VA) views on pending legislation 
affecting our education and housing programs. Three of the bills on 
today's agenda affect programs or laws administered by the Departments 
of Labor or Defense. Accordingly, we respectfully defer to the 
Department of Labor regarding H.R. 3257, the ``Military Family Leave 
Act of 2009,'' and to the Department of Defense regarding H.R. 3976, 
the ``Helping Heroes Keep Their Homes Act of 2009,'' and H.R. 4469, a 
bill ``to amend the Servicemembers Civil Relief Act to provide for 
protection of child custody arrangements for parents who are members of 
the Armed Forces deployed in support of a contingency operation.''
                          EDUCATION PROPOSALS
H.R. 3484
    Madam Chairwoman, your bill, H.R. 3484, would amend section 
3485(a)(4) of title 38, United States Code, to extend until June 30, 
2014, VA's authority regarding certain work-study activities under the 
educational assistance programs we administer.
    Public Law 107-103, the ``Veterans Education and Benefits Expansion 
Act of 2001,'' established a 5-year pilot program under section 
3485(a)(4) of title 38 that expanded work-study activities by 
increasing the number of places where a student could work and receive 
VA work-study benefits. Subsequent public laws extended the period of 
the pilot program, and the provisions are currently scheduled to 
terminate on June 10, 2010.
    VA does not oppose legislation that would extend the current 
expiration date of the work-study provisions, subject to Congress 
identifying offsets for the additional benefits costs. However, we 
would prefer that the legislation provide a permanent authorization of 
the work-study activities rather than extending repeatedly for short 
time periods.
    We estimate that the enactment of H.R. 3484 would result in 
benefits costs of $331,000 in fiscal year 2010, and $6.7 million over 5 
years. If made permanent, the authorization would result in benefits 
costs of $16.6 million over 10 years.
H.R. 3813
    H.R. 3813, the ``Veterans Training Act,'' would amend section 
3313(b) of title 38, United States Code, to expand the universe of 
approved programs of education under the Post-9/11 GI Bill to include 
programs approved for purposes of chapter 30 of title 38 (Montgomery GI 
Bill (MGIB)). Thus, in addition to programs of education leading to 
undergraduate or post-graduate degrees offered at institutions of 
higher learning (colleges and universities, or similar institutions, 
including a technical or business school, offering postsecondary level 
academic instruction that leads to an associate or higher degree if the 
school is empowered by the appropriate State education authority under 
State law to grant an associate or higher degree), eligible individuals 
would be able to pursue non-college degree programs at other 
institutions. Qualifying programs would include those pursued at an 
educational institution as defined under section 3452(c) of title 38. 
This measure does not include payment provisions for the newly-covered 
programs of education.
    While VA supports the intent to expand the programs of education 
for which an eligible individual may use Post-9/11 GI Bill benefits, VA 
does not support H.R. 3813. Without specific payment rules, the 
expansion proposed in this legislation adds significant payment 
complexity to the program. For example, the statute limits the amount 
payable under the Post-9/11 GI Bill to an amount equal to the maximum 
in-state charges for an undergraduate program of education charged by a 
public institution. To accommodate all the various fee charges for 
undergraduate programs and the differences state-by-state, VA 
established a maximum credit-hour charge for tuition and maximum fee 
charges per term. This ensured that VA made payments in accordance with 
the intent of the initial legislation (that an individual eligible for 
the maximum benefit would not have to pay tuition and fees in an 
undergraduate program at a public institution).
    Most non-degree programs are offered on a clock-hour measurement 
basis and students are generally charged tuition for the entire program 
versus term-by-term. A Veteran enrolled in a specialized computer 
training program lasting 6 months could be charged $10,000 for the 
program. It is unclear how VA should determine the maximum amount 
payable for such a program compared to an undergraduate program offered 
by an institution of higher learning (IHL). If VA were to limit payment 
to an amount equivalent to full-time attendance for a 6-month 
enrollment in an undergraduate program at a public institution with the 
highest charges in the State in which the Veteran is enrolled, the 
Veteran could be responsible for a significant portion of his or her 
charges as compared to a Veteran enrolled in an IHL. Most IHLs charge 
tuition based on enrollment for the term, quarter, or semester versus 
the entire undergraduate program.
    In addition, under existing statute, VA must pay the tuition and 
fee charge for the entire program for a program offered by an 
institution that offers programs of education on other than a term, 
quarter, or semester basis. Thus, VA could pay significant tuition and 
fees up front for an 18-month specialized computer-programming course. 
If the student dropped out after completing only 3 months of the 
program, VA would then be responsible for collecting a large 
overpayment, as the statute provides the Secretary cannot provide 
benefits for a course from which an individual withdraws unless there 
are mitigating circumstances. Even with acceptance of mitigating 
circumstances, VA would be responsible for recovering an amount equal 
to the prorated tuition for the 15 months the individual was not 
pursuing his or her program. If the school had a policy that limited 
refunds to 60 percent of the tuition charges if the individual 
withdraws after 30 days from the start of the course, the Veteran would 
be responsible for repayment of the overpayment with some of his or her 
own funds. Depending on the tuition charges and the institution's 
refund policy, this could be a significant burden for the Veteran who 
does not complete a program.
    VA is working aggressively on a new payment system to support the 
existing Post-9/11 GI Bill provisions. Adding new payment provisions 
before full deployment of the payment system would severely hamper 
deployment efforts. In addition, it would impact service delivery by 
adding additional rules while VA is manually processing claims 
augmented by limited automated tools. VA recommends postponing 
significant changes to the Post-9/11 GI Bill until after successful 
deployment of the payment system in December 2010 so that enhancements 
to the program do not have a negative impact on service delivery to 
those clients utilizing benefits this summer and fall.
    Unfortunately, we are not able to estimate of the cost of enactment 
of this proposal at this time, but we will provide such an estimate for 
the record.
H.R. 3948
    H.R. 3948, the ``Test Prep for Heroes Act,'' would amend section 
3315 of title 38, United States Code, to authorize payments to students 
under the Post-9/11 GI Bill for test preparatory courses--defined to 
mean a ``preparatory course for a test that is required or used for 
admission to institution of higher education,'' or a ``preparatory 
course for a test that is required or used for admission to a graduate 
school.'' If enacted, this measure would allow an individual eligible 
for Post-9/11 GI Bill educational assistance to receive payment for one 
licensing and certification test and one test preparatory course. The 
total amount payable could not exceed the lesser of $2,000, or the cost 
of the licensing and certification test and test preparatory course 
combined.
    Currently, under 38 U.S.C. Sec. 3315, individuals eligible for 
education benefits under the Post-9/11 GI Bill only can receive payment 
for one licensing or certification test as described in section 
3452(b). The licensing and certification test may not exceed the lesser 
of $2,000 or the fee charged for the test.
    VA does not oppose legislation that would provide for payment of 
test preparatory courses under the Post-9/11 GI Bill. We note, however, 
that H.R. 3948 does not specify an effective date, and, therefore, VA 
suggests the addition of an effective date provision make the 
amendments applicable to tests taken on or after January 1, 2011 (which 
would be after deployment of the Post-9/11 GI Bill payment system).
    VA estimates the costs associated with H.R 3948 would be 
insignificant.
H.R. 4079
    H.R. 4079 would temporarily suspend, during the period beginning on 
October 1, 2010, and ending on September 30, 2015, a requirement in 38 
U.S.C. Sec. 3677(b)(1)(A)(ii) that potential employers of Veterans 
participating in programs of on-the-job training (OJT) demonstrate a 
wage progression for such Veteran employees when applying for approval 
by State Approving Agencies (SAAs).
    Currently, 38 U.S.C. Sec. 3677(b)(1)(A)(ii) requires that, as part 
of the application for SAA approval, an employer seeking to hire a 
Veteran as part of an OJT program must provide a certification that the 
Veteran's wages will be increased in regular periodic increments until, 
no later than the last full month of the training period, such wages 
will be at least 85 percent of the wages paid for the job for which the 
individual is being trained. Some SAAs have indicated they are unable 
to approve some training programs because employers cannot commit to 
offering periodic wage increases due to current economic conditions.
    VA does not support enactment of this bill. Although the 
requirement in current law that the wages must reach a level of 85 
percent of the wages for the job a Veteran is being trained for may be 
too restrictive under current economic conditions, we suggest that 
Congress instead consider reducing the relevant percentage requirement 
rather than completely removing it. Modifying the requirement in this 
manner could allow SAAs to approve more employers to participate in OJT 
programs and increase valuable employment opportunities for Veterans. 
We believe it is worthwhile to keep in place a mechanism for an 
incremental wage increase, or ``glidepath,'' so Veterans will see the 
commitment to progress, promise, and opportunity.
    In addition, H.R. 4079 would require VA to report to the House and 
Senate Committees on Veterans' Affairs on the effects of the temporary 
suspension of the wage-increase requirement. This report would be due 
no later than June 1, 2015. VA does not currently have the reporting 
capability to track such data. As such, VA would have to develop 
reporting mechanisms with SAAs before implementing this legislation.
    Unfortunately, we are not able to estimate of the cost of enactment 
of this proposal at this time, but we will provide such an estimate for 
the record.
H.R. 4203
    H.R. 4203 would amend section 3313 of title 38, United States Code, 
to direct the Secretary to ensure that payments of educational 
assistance to a Veteran/student under the Post-9/11 GI Bill may be made 
directly to the Veteran's bank account. Currently, under 38 U.S.C. 
Sec. 3323 there are no provisions that establish the requirements or 
the methods of payment to individuals who are eligible for the Post-9/
11 GI Bill.
    VA does not support this measure because we believe it is 
unnecessary. Currently, individuals receiving education benefits under 
the Post-9/11 GI Bill can request that VA make these payments directly 
to their bank account. VA has provided this payment option since the 
new program began in August 2009. Therefore, if this measure were 
enacted, there would be no impact on VA business processes and 
procedures.
    There is no cost to VA associated with H.R. 4203.
                            HOUSING PROPOSAL
H.R. 4359
    H.R. 4359, the ``Warriors Adapting Residences with Mortgages for 
Energy Renovations Act'' (or ``WARMER Act''), would expand the 
Secretary's authority to guarantee housing loans for energy-efficient 
dwellings and increase the maximum amount certain Veterans may borrow 
toward making energy-efficient improvements. It also would require the 
Secretary, within 90 days of enactment of the bill, to prescribe 
interim policy guidance on energy-efficiency audits and the conditions 
under which such audits may be performed. VA supports the goal of 
encouraging energy efficiency and is still assessing the impacts of the 
bill on borrowers and program costs. We will provide the Department's 
views on this bill for the record.
    Madam Chairwoman, this concludes my statement. I would be happy to 
respond to questions you or the other Members of the Subcommittee may 
have regarding our views as presented.

                                 
         Statement of Patricia E. Apy, American Bar Association

    Chairwoman Herseth Sandlin, Ranking Member Boozman and Members of 
the Subcommittee:
    I am privileged to submit for the hearing record concerning H.R. 
4469 this statement on behalf of the American Bar Association (ABA). 
For more than 70 years, the ABA has been a defender of the legal needs 
of military families and an advocate for the principle that the answer 
to the call of duty should not unduly place our servicemembers' rights 
at a disadvantage. We support the position that deployment should not 
in and of itself serve as either the basis or justification for a 
military servicemember permanently losing custody of his or her child. 
We must, however, respectfully oppose this legislation. We do so for 
primarily the four reasons given below.
    Preliminarily, I would like to tell you something about myself. For 
the purposes of this statement, I have been designated by ABA President 
Carolyn Lamm to share with you these views on behalf of the 
Association. I am a matrimonial attorney in private practice with 
nearly 25 years of experience and particular expertise in the operation 
of State, Federal and international child custody law. I also hold a 
masters degree in Social Work with a clinical concentration in family 
and children's issues. My practice is devoted to complex international 
and interstate child custody cases, so by necessity my clients have 
included a significant number of servicemember parents and their 
families, whose circumstances frequently and unavoidably engender child 
custody disputes. I have served as an instructor on these and related 
issues at the Judge Advocate General Schools of the Army and Air Force 
and the Naval Justice School for nearly a decade. I am the current 
Chair of the ABA Family Law Section Military Law Committee, and had 
been appointed by the ABA President to serve on our Standing Committee 
on Legal Assistance for Military Personnel, where I served from 2002 to 
2008 as both a member and a liaison. In September of 2003, the ABA, 
recognizing the impact that the war and the unprecedented deployment 
and mobilizations of servicemembers would have on military families, 
sponsored a 2-year study entitled ``Working Group on Protecting the 
Rights of Servicemembers,'' co-chaired by BrigGen David C. Hague USMC 
(ret.) and RADM John Jenkins JAGC, USN (ret.). I served as one of two 
family law practitioners on that Working Group. I am happy to respond 
to any questions about my experiences, expertise or testimony. Of 
course, my responses should be construed as my own views unless 
confirmed as the official position of the ABA.
    First, H.R. 4469, and related legislation in recent years, attempts 
to prescribe automatic substantive relief by utilizing the SCRA. The 
Servicemembers Civil Relief Act (SCRA) provides an important legal 
process shield that allows our servicemembers to focus on mission and 
helps bring them and their fellow troops home safely. We support the 
Act and its purpose. However, we distinguish the subject matter of 
child custody disputes from other matters that are accorded automatic 
substantive relief under the SCRA, such as service and lease contracts. 
Child custody matters must also contemplate the countervailing concern 
of the best interests of the child. While we appreciate that this 
latest version of the legislation has incorporated explicit reference 
to ``the interests of the child,'' this does not cure our concern.
    Determining the best interests of minor children is a fact-driven 
determination, made on a case-by-case basis, often requiring the 
assistance of mental health professionals to guide and advise the 
parties and the court. The court is bound, in addition to balancing the 
interests of the adult litigants, to independently protect the minor 
children who are the subject of the dispute. For these and related 
reasons, child custody litigation is unlike other matters covered under 
the SCRA. States, meanwhile, are acting in this area, providing 
superior relief than this legislation can offer. We believe that the 
SCRA's existing protections that provide objective procedural 
safeguards applicable to all cases (i.e., an automatic 90-day stay of 
legal proceedings), the opportunity to seek affirmative relief, and the 
additional substantive protections in place in more than 30 States and 
currently under review in most of the remainder, render this well-
motivated but not well-considered legislation unnecessary at best, and 
harmful at worst.
    While there are variations among the States, the Uniform Law 
Commission has undertaken an expedited review of these issues to 
produce a comprehensive legislative package that all States may 
consider introducing or use to complement their existing laws in a 
manner consistent with their respective judicial systems and 
servicemembers' needs. The State statutes in place and under review 
include a range of provisions well beyond the current legislation, 
including provisions for the delegation of visitation rights, 
arrangements for the temporary placement of children with grandparents, 
and the appointments of guardians ad litem for minor children whose 
parents are deployed, to name only a few. One may argue that this 
Federal bill only seeks to assure that there is a means to offer a 
minimum standard of care for all States through the SCRA. However, we 
believe that while this Federal legislation would still require a 
number of changes to provide such a standard for targeted cases, even 
then its enactment would function to discourage the rapid and 
innovative progress States have been experiencing in recent years.
    Second, by amending the SCRA to accomplish its aims, H.R. 4469 will 
unintentionally but surely introduce Federal litigation to a matter 
reserved to the States and in which the Federal Government has no 
expertise. In our view, this proposed law will result in considerable 
complexity, cost and delay without a foreseeable benefit for military 
parents at a time of their personal crisis. Merely deeming Federal 
question jurisdiction excluded in the legislation cannot avoid these 
problems. Questions concerning the definition of terms of a Federal 
statute or the application of its provisions in a given case are 
matters within the jurisdiction of, and reviewable by, Federal courts. 
Additionally, Federal statutes such as 28 U.S.C. Sec. Sec. 1331, 1441, 
or 1442a may also make these matters removable to Federal court 
regardless of the language in H.R. 4469. The necessarily preemptive 
nature of Federal law over all domestic family law, coupled with 
language that compels a specific remedy, insures that either parent 
would be able to seek the vindication of Federal rights in the courts 
of the United States if they believed that Federal law had been 
misapplied.
    Third, H.R. 4469 only applies to certain child custody cases and 
claims, leaving the status of others in question. The nature and extent 
of child custody disputes are as diverse as families themselves. 
Preliminarily, it is arguable that the cases being advanced as evidence 
for the need for this legislation would not have benefited from its 
provisions. The bill also does not seem to prevent someone from suing 
to change existing parenting orders due simply to a custodial parent's 
deployment. Ill-motivated and opportunistic litigants may always 
generate grounds to re-open and permanently change custody of a child, 
but the relief offered by this legislation focuses on only certain 
kinds of custody-related cases, includes only certain kinds of claims, 
and provides remedies only for servicemembers under certain conditions. 
For example, this legislation would preclude relief for the National 
Guard mother who is deployed in Iraq and does not serve as the primary 
residential parent. Efforts by her ex-husband to restrict her custody 
rights, and prevent her physical and telephonic access to the children 
during her brief R&R leave would not be covered.i What if a 
servicemember was not deployed in support of a contingency operation as 
the proposed amendment requires, but was absent on an unaccompanied 
tour to Korea, or flying off an aircraft carrier in the Indian Ocean on 
routine deployment? What about dual military couples?
---------------------------------------------------------------------------
    \i\ Forson v. Weldon FM-10-284-09 Superior Court of New Jersey, 
(Hon. Ann R. Bartlett, preliminary decision decided January 21, 2010.)
---------------------------------------------------------------------------
    The unintended consequence of focusing on only one fact pattern 
among the universe of potential family law issues will encourage State 
court judges who are only now becoming facile with the SCRA to be 
reluctant in applying its protections to all cases, as required by its 
plain language. These are just a few reasons why these fact-driven 
cases do not lend themselves to inflexible results, no matter how well 
intentioned. These matters are best reserved to the States where a 
trier of fact can consider all variables, consult with experts, require 
the production of all reliable information and testimony, and produce a 
result that insures the protection of the servicemembers and their 
families, as well as the needs of their minor children who are also 
bearing the harsh consequences of their parent's heroic absence for the 
service of his or her country. Accordingly, we urge you to oppose H.R. 
4469, and instead to support the ongoing efforts in each of your 
States.
    Fourth, H.R. 4469 proposes to wade into an area of domestic 
substantive law without the benefit of an informational record or 
expert views supporting its need or efficacy. This hearing represents 
the first public discussion of this legislation since its initial 
introduction in 2007, despite the ongoing concerns and opposition 
expressed. These and related matters have been subject to study by the 
ABA, in concert with military legal assistance, going back to January 
2002 in anticipation of what we all expected to be increasingly complex 
deployment-related family law issues. We have maintained vigilance over 
rising concerns and launched initiatives such as the ABA Pro Bono 
Project, which provides military legal assistance lawyers and their 
clients expert civilian counsel on complicated matters without cost. 
Despite our work in this area, we recognize that there is no public 
record to ensure that the solutions proposed by this legislation are 
responsive to the issues and needs actually presented in these cases. 
Accordingly, we have supported interim efforts such as Section 571 of 
P.L. 111-84, a congressionally-requested study of military child 
custody cases since 2003 that will include an analysis of State 
responses to these cases, and propose recommendations for further 
action. We understand that the results of that study are expected 
within the next couple of months. Action without the benefit of that 
study and its recommendations, and in the face of legal experts' 
opposition, seems less than the collective best owed to our troops.
    We are not alone in expressing troubled views over the legislation. 
We are joined in our concerns by the Department of Defense, the 
National Military Families Association, the Uniform Law Commissioners, 
lawmakers and others. To-date, this legislation has largely moved 
during nonpublic mark-up sessions of defense authorization legislation, 
as well as through its nonpublic conference committee deliberations, 
without a hearing or debate in committees of original jurisdiction 
until now. While we do recognize that a version of this legislation had 
been approved under suspension of the rules in the 110th Congress, the 
language before you today is not the same. In fact, the language of 
this legislation has changed repeatedly over multiple congresses since 
its original introduction, each version purporting to be the solution. 
Despite this evolution in the language, our concerns have not been 
fully addressed, and to the extent that the desire is to amend the SCRA 
in this particular way, opening the door to Federal litigation in child 
custody cases, our concerns will not be allayed.
    Absent the benefit of the informed analysis of the Department of 
Defense study, Congress would be taking action in an area against 
expert advice as to foreseeable negative consequences to military 
parents and their children. We urge you to tread lightly in this 
delicate and complex area of law, and instead urge you to support 
alternative proposals we and others believe will provide superior 
protections to our troops. We stand ready to assist all who are 
interested in these matters. Like the sponsor of H.R. 4469, we have not 
been satisfied with the status quo, but we believe caring for our 
troops and promoting the stability of military families will require 
further work in this arena, work that is already underway.
    Recommendation #1: Allow the States to finish addressing a matter 
reserved to the States. It may sound ineffectual to some with past 
experience with some matters, but with more than 30 States already 
taking some action, a dozen more considering proposals, and an 
expedited review by the Uniform Law Commission to help States 
understand how to tailor key protections to their jurisdiction, this is 
real, ongoing progress.
    Recommendation #2: Improve the Family Care Plan instructions to, 
among other things, require advance coordination between both parents 
to make agreements clear and accordingly more legally enforceable. This 
is already underway. When the Navy improved its Family Care Plan 
process, an immediate reduction of these types of disputes resulted, 
preventing litigation and promoting a greater expectation and 
understanding of outcomes by all involved.
    Recommendation #3: Collect data on the relevant case law and its 
projected impact on the courts and military families. The Department of 
Defense study and recommendations are expected soon, and others are 
also focusing efforts in this area during a time that the Congress and 
the Administration are focusing attention and due resources for 
military families. We have confidence that the Department study will 
produce thoughtful recommendations based on actual cases and informed 
by the technical operation of family law around the country. If the 
report recommends action by Congress, we are ready to assist in that 
effort.
    In closing, for the reasons stated above, we urge you to oppose 
H.R. 4469 and related proposals that fail to contemplate the concerns 
we raise. We urge you instead to support ongoing efforts in the States 
and the Department of Defense to strengthen the rights of 
servicemembers in a comprehensive and targeted way, preventing 
unnecessary litigation in the first place.

                                 
               Statement of Stacy Bannerman, Medford, OR
                  (Army National Guard Blue Star Wife)

    Author of When the War Came Home: The Inside Story of Reservists 
and the Families They Leave Behind (2006).
    Founder/Director of Sanctuary WeekendsTM for Women 
Veterans
    Campaign Creator and Director of:

      Oregon State Military Family Leave Act (H.B. 2744; 
effective June 2009)
      Proposal to establish a Oregon State Military Family 
Advisory Council
      Federal Military Family Leave Act of 2009 (H.R. 3257; S. 
1441)
      Federal Military Family Mental Health Care Improvement 
Act of 2010 (seeking sponsors)

    Recipient of the Patriotic Employer Award, National Guard 
Commission for the Employer Support of the Guard & Reserve, April 2009.

                               __________
    Thank you to Congressman Adam Smith for sponsoring H.R. 3257, and 
to the House Veterans Affairs Subcommittee on Economic Opportunity for 
considering this important bill to support the families of the troops 
who are serving or will serve in the war on terror, and other combat 
deployments. In a few short months, another 30,000 troops will be 
deploying for Afghanistan--again. The majority of those troops are 
married with children; most of the spouses left behind work outside the 
home. Many of us have to choose between work and family when our loved 
one deploys. It's an impossible choice, and one that military families 
should never be asked to make when America is at war.
    Changes to the Family and Medical Leave Act (FMLA) allow military 
families to take time off for a number of reasons connected with a 
deployment, but the law protects only a very few military family 
members. Most of us, who work for smaller companies, or work part-time, 
or are seasonal or contract labor, or, because of a recent PCS, have 
less than 1 year on the job, aren't eligible under current law. H.R. 
3257 would offer protection so that we are able to spend much-needed 
time with our loved ones immediately prior to, during, and/or after 
deployment, without fear of losing our jobs, or being forced to choose 
between work and family.
    My husband is a Sergeant First Class with the Army National Guard, 
and his Brigade spent several months training at Ft. McCoy, Wisconsin, 
more than 1,000 miles away from home and family, prior to shipping out 
for a second tour in Iraq. I had recently moved to southern Oregon to 
accept a new position in order to implement programs to help military 
families and veterans. I had been on the job at this small non-profit 
agency for a few months, and didn't have any sick leave or vacation 
time available. It would be more than 1 year before I saw my husband 
again.
    If we support the troops, and by extension, military families, then 
passing the Military Family Leave Act of 2009 H.R. 3257, to provide 14 
days of unpaid leave per deployment for immediate military family 
members, should be at the top of this Nation's to-do list. Because when 
the soldier goes to war, so does the family. And when the veteran comes 
home, family support is the single most critical factor in successful 
reintegration. The demands of the war on terror and the demographics of 
the 21st Century military are very different from the past, and 
adapting to those realities must, by definition, include expanding 
support for military families.
    For the first years of the Vietnam War, married men were exempt 
from the draft, and for the duration of the war, married men with 
children were given deferments so that they wouldn't be deployed as it 
would constitute too much of a hardship on the families. During 
Vietnam, the majority of troops were single soldiers serving one tour, 
and comparatively few citizen soldiers served in combat. Today, the 
bulk of the boots on the ground in Iraq and Afghanistan are married. 
They have served, or are serving, multiple tours; and most of them have 
children. Around 40 percent are citizen soldiers.
    The men and women in uniform are serving longer and more frequent 
tours than ever asked of the military in this Nation's history. And so 
are their families.
    Here's a comment from a military wife about why we need a Military 
Family Leave Act now:

        I have heard too many times now of women who have had no 
        cooperation from their employers for time off before their 
        husbands have deployed, or no time off when their husbands come 
        home for R&R or are home for good. Women have had to make the 
        choice sometimes of quitting their jobs in order to have that 
        time with their husbands and in today's economy that may not be 
        the best choice for some families.

    And another:

        I think it is a great idea. I have had friends treated poorly 
        over asking for time off when their hubbies were coming home 
        from 15 month deployments . . . and friends who subsequently 
        quit their jobs in order to get that time that is well-deserved 
        and much needed. I just can't believe any normal person 
        wouldn't understand the importance of this time!!!

    One more:

        I just want to say yes, it is about time we need a Federal 
        military leave act. My husband left in October last year on his 
        second tour to Iraq. I went to see him for 4 days at Fort 
        Dicks, N.J., and I almost lost my job because of it. I had to 
        fight for it after calling upper management and the mayor's 
        office they finally backed off. There is still a lot of tension 
        at work and he will be home in June for his 2 weeks and I am 
        already fighting the time off as we speak. They always ensure 
        that they support the troops and my husband but they are sorry 
        I can't have the time off. I hope it passes so I won't have to 
        worry about spending time with him and our children in the 
        future. I just wanted to say thank you and I agree with you a 
        100 percent.--Mandy Trujillo, Portland, Oregon

    Two weeks: that's what we're talking about. For the businesses that 
would be affected, it's a tiny sacrifice to help shoulder the burden of 
war borne exclusively by our troops and their families for nearly 9 
years. But for the military family members that would be affected, 14 
days would be a great gift. And, for some of us, the reality is that 
our soldier will come home in a box. In the very worst case scenario, 
we would spend the rest of our lives wishing for those last 2 weeks of 
time with our beloved. Two weeks. Surely America's military families 
deserve that.

                                 
Statement of Hon. Bob Filner, Chairman, Committee on Veterans' Affairs,
     and a Representative in Congress from the State of California

    Good afternoon Chairwoman Herseth Sandlin, Ranking Member Boozman 
and Members of the Subcommittee. Thank you for the opportunity to speak 
on H.R. 3579, legislation to increase veteran reporting fees to 
institutions of higher learning.
    While we have made improvements to the GI Bill to address the 
current educational needs of our veterans, we have failed to address 
the growing demands placed upon certifying officials responsible in 
assisting student veterans enrolled in a college or university program.
    As some of my colleagues may know, VA employees were initially 
assigned to Institutions of Higher Learning to administer only one 
veteran education program for veterans. These VA employees were later 
removed in 1976 and the responsibility of certifying student veterans 
was placed on Institutions of Higher Learning by paying the school $7 
for each student certified. In 1976, $7 may have been a reasonable 
amount but it no longer reflects the actual costs for the expanded 
services. After 34 years the time has come to update the amount to 
reflect today's costs.
    My legislation seeks to address this very important issue by 
increasing the reporting fees payable to institutions of higher 
learning from the outdated $7 per student to $50 per student. This 
amount better reflects today's increasing demands placed on school 
officials.
    I share their concerns of student veterans and education officials 
alike and I am confident that H.R. 3579 is a key piece of the puzzle 
that will provide Institutions of Higher Learning the resources to 
train certifying officials on the various benefit options available to 
student veterans and hire appropriate staff to prevent future delays in 
benefits. Our Nation's veterans certainly deserve the best services 
their school may provide.
    I want to thank my colleagues Chairwoman Herseth Sandlin and 
Ranking Member Boozman for their continued work in the Subcommittee. I 
look forward to working with all of my colleagues to provide our 
Nation's veterans with education benefits in a timely manner. Madam 
Chair, I would be happy to address any questions that the Subcommittee 
may have regarding my testimony.

                                 
                      Statement of Hon. Ron Klein,
         a Representative in Congress from the State of Florida

    I would like to thank Chairwoman Herseth Sandlin and Ranking Member 
Boozman for allowing me to testify before this distinguished committee 
on behalf of our legislation, the Test Prep for Heroes Act. This 
legislation, introduced by Congressman Putnam and me, would make a 
technical correction to the Post-9/11 GI Bill, at no new cost to 
taxpayers, to ensure that our servicemen and women have the opportunity 
to take test prep courses for licensing and certification tests.
    The passage of the Post-9/11 GI Bill marked a major step forward in 
finally fulfilling our obligation to those men and women who have 
served our country honorably since the events of September 11, 2001. 
The original GI Bill brought prosperity to an entire generation by 
putting our veterans through college upon returning home from service, 
and it was time to do the same for our servicemembers returning home 
from Iraq and Afghanistan. I was proud to be a cosponsor and strong 
supporter of the Post-9/11 GI Bill, however I am also committed to 
improving these benefits and fixing any omissions in the law that may 
prevent students from taking full advantage of them.
    Under current law, GI Bill beneficiaries are eligible for up to 
$2,000 in reimbursements for the cost of taking a licensing and 
certification test. However, as many of you well know, the cost of the 
test often pales in comparison to the cost of test prep courses that 
many students take today to better prepare for these tests. For 
example, the cost of taking the SAT can be as little as $45, while the 
cost of an SAT test preparation course with a licensed instructor can 
run you over $1,000--enough to deter any cash strapped student from 
enrolling. If we allow GI Bill beneficiaries to use their $2,000 
reimbursement for both the cost of one test prep course and the cost of 
one certification or licensing test, we could better position our 
returning veterans to compete with their peers on these high stakes 
tests.
    The Test Prep for Heroes Act would do just that: allow veterans to 
use this $2,000 reimbursement for both the cost of one test and one 
preparatory course. It's a common sense solution to help ensure that 
our veterans can afford to better prepare for the material on these 
tests and earn a degree from a top rate college. By continuing to 
analyze and improve these benefits, I'm confident we can provide our 
servicemen and women with the resources they need to succeed and make 
our veterans an integral part of our Nation's economic recovery.
    I would like to thank you all for your consideration of our 
legislation and for the opportunity to testify before you today. I look 
forward to working with the Members of the Committee to improve upon 
the GI Bill and provide our veterans with the benefits they deserve. 
Thank you.

                                 
     Prepared Statement of Faith DesLauriers, Legislative Director,
        National Association of Veterans' Program Administrators

    Chairwoman Herseth Sandlin, Ranking Member Boozman and Members of 
the Subcommittee. NAVPA appreciates the opportunity to comment on 
proposed legislation as well as to highlight issues of interest and 
concern to it members and the population we serve.
    While H.R. 3579, To amend title 38, United States Code, to provide 
for an increase in the amount of reporting fees payable to education 
institutions that enroll veterans receiving education assistance from 
the Department of Veterans Affairs, and for other proposes, was removed 
from the legislative hearing, we would like to go on record as 
supporting this bill.
    School reporting fees have not changed since the inception over 30 
years ago; however, several programs have been added on to the school 
Veterans' Program Administrators' responsibility at the institution and 
some, such as Vocational Rehabilitation, Chapter 31, have never been 
included. Now, a new and even more complex education program has been 
added, Chapter 33, P.L. 110-252. While the reporting, reconciliation 
and overall cost of administering all programs has increased and the 
burden on the educational institution is not business as usual; the 
added work effort has not been calculated. Also, the use of these fees 
should be designated to support the Office of Veterans' Affairs/
Services and for professional development of the school VA 
Certification Officials and other Veterans' Program Administrators. We 
further propose that at minimum, recipients of this reporting fee must 
match these funds to support veterans' services.
    NAVPA supports H.R. 950, To amend Chapter 33 of title 38, United 
States Code, to increase education assistance for certain veterans 
pursuing a program of education offered through distance learning. The 
intention of the Post-9/11 GI bill is to pay the basic housing 
allowance for veterans while pursuing a program of study at an 
institution of higher learning and many veterans are not able to travel 
to an IHL for various reasons choosing to continue their education via 
distance learning. Many students take classes online or at branch 
campuses of a school while serving on active duty. Once released, they 
find gainful employment and continue their education to be competitive 
in the civilian workforce. Also, in many cases active duty members are 
released due to a disability. In these cases, the students' only choice 
may be to complete their program of study through distance learning.
    All modalities are approved by the State Approving Agencies for 
Veteran Training and recognized by accrediting bodies. This group of 
veterans should not be penalized for being responsible, disciplined 
adult learners, for putting their family first or whatever reason for 
choosing this credible 21st century mode of study. Thousands of 
veterans and active duty students are enrolled in courses defined by 
law and approved as distance learning--a mode of study that is approved 
for veterans training for all other GI Bill programs, and that has 
become a trend in both private and public education today--distance 
learning, blended, hybrid, etc. We should not inhibit the ability of 
our veterans to participate in their educational plans by restricting 
the method by which they receive their course of study.
    NAVPA Supports H.R. 3484 to extend the authority for certain 
qualifying work-study activities for purposes of the educational 
assistance programs of the Department of Veterans Affairs; H.R. 3813 to 
provide for the approval of certain program of education for purposes 
of the Post-9/11 Educational Assistance Program which would include 
programs of education offered by an institution offering instruction 
that does not lead to an associate or higher degree; H.R. 3948 to 
provide for entitlement under the Post-9/11 Education assistance 
program to payment for test preparatory courses and for other purposes 
and H.R. 4079 to temporarily remove the requirement for employers to 
increase wages for veterans enrolled on On-the-job training programs.
    P.L. 110-252 limits training opportunities, excluding On the Job 
Training, Apprenticeships and other training opportunities. Such 
limitations will prove to be a disservice to our veterans when they 
find that numerous career goals cannot be realized; and to our Nation 
when we realize that the return on investment is not as great as it was 
with previous education programs. Many veterans are not interested in 
attending college, but have the skills necessary to master a trade. Our 
country certainly needs tradesmen and women like electricians, 
plumbers, carpenters and truck drivers to bring goods and services to 
the communities across this Nation. We recommend that benefits be made 
available for certain skill attainment, trades and continuing education 
consistent with the concept of life-long learning and to provide the 
same flexibility currently in the Montgomery GI Bill chapters.
    We advocate administrative like changes to Veterans' Education 
Programs that would:
    Expand the student work study program--This program needs to be 
expanded to allow students to work in academic or administrative 
departments at the institution in which they are pursuing a degree. 
This will enable students to work in a number of jobs within the 
college or university and gain valuable civilian work experience.
    Not tie the certification of tuition and fees to the living 
stipend--The living stipend/housing allowance under the Post-9/11 GI 
Bill should not be tied to the certification of tuition and fees. The 
Post-9/11 GI Bill requires that schools certify one term/semester at a 
time in order that actual tuition and fees be reported, rather than 
estimated. Understanding this requirement, it will be necessary for the 
VA to develop another certification of ``Anticipated Enrollment'' in 
order that the living stipend/housing allowance will be paid without 
interruptions. Allow schools and training institutions to certify 
students ``intent'' to enroll for the full academic year to establish 
eligibility for the living stipend. Allow the VA to pay and continue 
paying the living stipend until a report (VA Form 22-1999b) is 
submitted by the education/training institution which would stop or 
otherwise adjust this monthly payment. Further, we recommend that 
tuition and fees are reported/certified after the end of the schools' 
published drop/add period. This would result in a substantial reduction 
in the number of reports made by school officials and the number of 
adjustments made by the VA.
    Payment of tuition and fees must be made to the school in a timely 
manner. The VA defines timely as 30 days from the occurrence. Education 
institutions will work with the men and women who serve our country and 
appreciate the VBA's position, but there should not be an expectation 
that they will carry account balances indefinitely or that they will 
continue to defer payments without verification of entitlement 
(Certificate of Eligibility).
    The majority of educational institutions are deferring tuition and 
fees (in the amount due from the VA) for students who are, or appear to 
be eligible for the Post-9/11 GI Bill. However, these students came to 
college campuses with the understanding, a promise if you will that 
they would receive a monthly living allowance to supplement or in some 
cases cover living expenses. The current system of certification (one 
term at a time) will delay monthly payments further if there is not a 
means to separate the certification of ``Anticipated Enrollment 
Status'' from the certification of tuition and fees.
    Allow for an electronic means of accessing education benefit 
information from Department of Veterans Affairs--NAVPA recommends that 
the Department of Veterans Affairs develop an Education Web Portal for 
easy and accurate access to VA Records pertaining to Veterans' 
Education Benefits. Veteran students do not have an electronic means of 
accessing meaningful and useful information from the Department of 
Veterans Affairs on their education benefits, usage and remaining 
entitlement from their VA records. Educational institutions are 
overwhelmed with the volume of calls, misinformation from the VA Call 
Center and limited ability to assist students in determining the status 
of their claims or even eligibility. Above all, eligible individuals/
students should have access to their VA records. All information 
relative to their VA education benefits, eligibility, applications, 
enrollment certifications and payments should be made available to them 
through this portal. Information should include at minimum information 
sent to the veteran via the U.S. mails at the beginning and throughout 
each academic year as contained in the `Award letter and now the 
Certificate of Eligibility under the Post-9/11 GI Bill.
    Designated school officials would have secure access to the portal 
for veteran students so they may provide counseling and assistance when 
necessary. VA-ONCE and WAVE have partially covered these issues; 
however, all information is still not available. Veterans should be 
able to view all pending issues to include receipt of documentation and 
current status, reasons for any delays in processing should also be 
addressed on this WEB portal.
    We believe the implementation of a secure web portal will enhance 
service to veterans, bring efficiencies to the DVA with a corresponding 
reduction in telephone service personnel. The efficiencies in personnel 
utilizations realized would benefit processing time. This concept is 
needed now more than ever with the extreme delays in processing claims 
and the complexities of the Post-9/11 GI Bill.
    In closing NAVPA request that the rules, policies and procedures 
governing the administration of the Post-9/11 GI Bill be made 
consistent, nationwide. Due to the complexities of this program schools 
are currently working with limited to non-existent information. Often 
what little they have was received through informal channels outside 
their State and RPO areas of responsibility. It is critical that VA 
create policies consistent with the published final rules, document 
them thoroughly, and distribute them consistently at all levels from VA 
Central Office through RPOs and ELRs down to the institutions that must 
implement them. Only then can every veteran be assured of receiving the 
same benefit consideration no matter what school, State, or RPO is 
responsible for the processing of their claim.
    Again, thank you for the opportunity to support meaningful 
legislation and to make recommendations for improvements in the 
administration of the GI Bills. I would be pleased to answer any 
questions you may have.
    Respectfully submitted for the record.

                                 
           Statement of National Military Family Association

    The National Military Family Association is the leading non-profit 
organization committed to improving the lives of military families. Our 
40 years of accomplishments have made us a trusted resource for 
families and the Nation's leaders. We have been at the vanguard of 
promoting an appropriate quality of life for active duty, National 
Guard, Reserve, retired servicemembers, their families and survivors 
from the seven uniformed services: Army, Navy, Air Force, Marine Corps, 
Coast Guard, Public Health Service and the National Oceanic and 
Atmospheric Administration.
    Association Representatives in military communities worldwide 
provide a direct link between military families and the Association 
staff in the Nation's capital. These volunteer Representatives are our 
``eyes and ears,'' bringing shared local concerns to national 
attention.
    The Association does not have or receive Federal grants or 
contracts.
    Our Web site is: www.MilitaryFamily.org.
    Chairman Herseth Sandlin and Distinguished Members of this 
Subcommittee, the National Military Family Association would like to 
thank you for the opportunity to present testimony on H.R. 4469, to 
amend the Servicemembers Civil Relief Act to provide for protection of 
child custody arrangements for parents who are members of the Armed 
Forces deployed in support of a contingency operation.
    Our Association often advocates that ``one size does not fit all'' 
regarding programs and benefits for our servicemembers and their 
families. Child custody is no different. Over the past 2 years, our 
Association has been contacted by numerous servicemembers regarding 
child custody issues during all phases of deployment and service 
careers. No two cases were the same. We appreciate the passion the 
proponents of the legislation have for our servicemembers and their 
families, but a single piece of legislation will not solve the problem.
    Traditionally, child custody has been left to the States. Our 
Association is concerned that Federal intervention could stifle State 
efforts, which in many cases has provided broader protections for our 
servicemembers. More than 30 States have passed legislation protecting 
the rights of our servicemembers in child custody cases. At least 10 
other States--Alabama, Alaska, Georgia, Hawaii, Indiana, Iowa, New 
Jersey, Ohio, Rhode Island, and Vermont--are actively working 
legislation. The Department of Defense State Liaison program is working 
with these States to move legislation forward and to have legislation 
introduced in the remaining States.
    Deployment is just one event that takes a servicemembers away from 
their family. What happens to a servicemember who has a permanent 
change of station (PCS) or goes on a temporary duty assignment (TDY) to 
attend a school? Where are their protections against a change in 
custody? There are many other events in a servicemember's career that 
can prompt custody changes. We need to better understand the fact 
patterns involved and work to find broader and more comprehensive 
solutions that address them.
    In the Fiscal Year 2010 National Defense Authorization Act, 
Congress directed a report by the Secretary of Defense on child custody 
cases in which deployment of a servicemember was an issue and on 
measures taken to assist servicemembers in avoiding child custody 
disputes. The Department of Defense (DoD) is moving forward on the 
report, and we hope to see the results by the end of summer 2010. This 
report will help everyone better understand the scope of the problem 
and tailor specific solutions to solve them.
    Servicemembers must also be proactive and address custody and 
deployment early in custody negotiations. Realizing the impact that 
this preplanning could have on decreased litigation, DoD has undertaken 
efforts to strengthen Family Care Plan instructions. Broadening the 
instances of who should have them and dictating what should be 
included, will prevent many of the custody issues that arise when 
servicemembers return.
    Internally, we have struggled with how these issues can be 
resolved. At one time, we supported this legislation. Now, our 
experience tells us that Federal legislation is not the solution. We 
urge Congress to proceed cautiously and to consider the possible 
unintended consequences that this legislation could have, not only on 
our servicemembers, but on their children.
    We thank you for your support of our servicemembers and their 
families and we urge you to remember their service as you work to 
resolve the many issues facing our country. Military families are our 
Nation's families. They serve with pride, honor, and quiet dedication.

                                 
 Statement of Pennsylvania Association of Private School Administrators

    The Pennsylvania Association of Private School Administrators 
(PAPSA) considers the Post-9/11 Bill to be unfair. Not all veterans can 
choose the type of education they want and need. Students attending 
non-degree postsecondary education institutions including public vo-
techs, some career schools, and apprenticeship programs are not 
eligible for enhanced GI Bill benefits.
    Fortunately, your colleague Joe Sestak has introduced legislation 
to correct this injustice. H.R. 3813, the Veterans Training Act, would 
allow Post-9/11 GI Bill benefits to be used at non-degree granting 
schools.
    Many of the members of PAPSA and their students are being affected 
by the unfairness inherent in the Post-9/11 GI Bill. On return to 
civilian life, many returning servicemembers are interested in quickly 
hitting the ground running. Short-term certificate and diploma programs 
can be a critical part of a successful transition. But if they are not 
offered at a degree granting school, then programs in truck driving, 
aviation maintenance and gunsmithing, skills many vets may naturally 
want to enhance, are not eligible under the Post-9/11 GI Bill.
    Other ineligible programs might include HVAC, construction trades, 
tool and die training and allied medical programs such as medical 
assisting, EMT and para-medical. Even some business training programs 
could be excluded. Limiting veterans' choices in this manner is just 
not right.
    A growing number of veterans groups have recently stepped forward 
to challenge the exclusion of non-degree granting institutions from the 
Post-9/11 GI Bill. Non-degree institutions and apprenticeship programs 
have always been included in the traditional Montgomery GI Bill so why 
should the Post-9/11 GI Bill be different? After a veteran has bravely 
served their country, they should be allowed to pursue their next 
career at the school of their choice.
    PAPSA also supports Chairman Filner's bill, H.R. 950 to allow the 
use of veterans' educational assistance program funds for the pursuit 
of an approved program of education offered through distance learning. 
This bill would help to promote greater access and educational choice 
for veterans and their families.
    PAPSA represents the more than 320 private career colleges and 
schools in the Commonwealth and is the only association representing 
all for-profit colleges and schools in Pennsylvania. With over 150 
school members, PAPSA is a unified voice of quality career school 
education. We strongly support H.R. 3813 and H.R. 950.

                                 

                                        Student Veterans of America
                                                    Washington, DC.
                                                  February 17, 2010

The Honorable Stephanie Herseth-Sandlin
Chairwoman, Economic Opportunity Subcommittee
House Committee on Veterans Affairs

The Honorable John Boozman
Ranking Member, Economic Opportunity Subcommittee
House Committee on Veterans Affairs

Madam Chairwoman and Mr. Ranking Member,

    Thank you for providing Student Veterans of America the opportunity 
to weigh in on these important pieces of legislation that you are 
reviewing today. We appreciate your passion and commitment to veterans 
issues, and truly support the efforts of you and your staffs as you 
work to better enable our Nation's heroes to succeed when they come 
home.
    Specifically, we would like to submit our comments on the following 
Bills before you: H.R. 3579, H.R. 3813, H.R. 3484, H.R. 3948, and H.R. 
4203. Each of these directly affect the lives of student veterans 
around the country, and we implore you to enable the changes that the 
Members and we have developed.
H.R. 3579
    The Student Veterans of America strongly supports Chairman Filner's 
Bill H.R. 3579 to amend title 38, United States Code, to provide for an 
increase in the amount of the reporting fees payable to educational 
institutions that enroll veterans receiving educational assistance from 
the Department of Veterans Affairs. The current fees, range from $7.00, 
and $11.00 and these reporting fees are the only source of funding that 
schools receive to support veterans, and are currently next to nothing. 
We strongly support the new fee of $50.00 each that is proposed in this 
bill.
    The existing fees of $7.00 and $11.00 are effectively the same as 
were paid during the Vietnam War and are inadequate in providing the 
necessary support to student veterans. Raising these fees to $50.00 
reflects an increased demand for expanded services for student veterans 
and would allow schools to have much more power and flexibility to help 
these student veterans. This increase in reporting fees would enable 
schools to expand training outreach events and increase or improve 
other student veteran related programs.
    Furthermore, we believe that this increase would provide veteran 
certifying officials with the resources needed to receive training so 
that they can be fully informed of the benefit options available to 
student veterans. An expansion of veteran related programs and an 
increase in resources for certifying officials would have a positive 
impact on the lives and opportunities of student veterans, and we are 
confident that H.R. 3579 would help provide some of the funding 
necessary for these worthy programs.
H.R. 3813_Veterans Training Act
    Congressman Sestak's Bill offers an obvious change to bring the 
Post-9/11 GI Bill more in line with the previous Montgomery GI Bill and 
is an essential way of ensuring the longevity of this program. This is 
a logical solution to many of the problems facing the Bill today, and 
we support it wholeheartedly.
H.R. 3484
    We emphatically support the 4-year extension of the VA Work Study 
Program as proposed by Chairwoman Herseth-Sandlin and Ranking Member 
Boozman. This program enables thousands of student veterans to earn an 
income at their schools while working to help their fellow student 
veterans and their VA Certifying Officials. In many cases, the VA Work 
Study students are critical to the daily operations of their school's 
veteran services office, and this extension is essential to ensure that 
these offices are able to continue providing the high level of customer 
service that is expected by our veterans at their schools.
H.R. 3948_Test Prep for Heroes Act
    Student Veterans of America absolutely supports Congressman 
Putnam's efforts to amend Title 38 of the U.S. Code to authorize the 
use of entitlement assistance under the Post-9/11 GI Bill for payment 
for a test preparatory course in connection with licensing or 
certification in a vocation or profession. The lack of authorization 
for the use of funds for test preparation in Post-9/11 GI Bill does a 
disservice to the tens of thousands of student veterans who need to 
take a test to gain licensing or certification in a vocation or 
profession, but lack necessary funds to take a preparatory course that 
could help improve their test scores.
    Many student veterans are required to take a test in order to 
receive licensing or certification in a vocation or profession. These 
tests are mandatory for jobs, and in order for student veterans to have 
the highest likelihood of success, they must be adequately prepared for 
these tests. Preparation courses are essential to ensure that student 
veterans have the highest chances to excel in these tests; however, 
such courses are often costly, which renders them impractical for many 
student veterans. By authorizing entitlement assistance for test 
preparation courses, H.R. 3948 would give student veterans the 
resources they need to be successful and continue to make a positive 
impact on American society.
    In addition to the changes that H.R. 3948 provides, we would like 
to bring your attention to the fact that many of our student veterans 
need to take more than one test in connection with licensing or 
certification. However, the current text of Chapter 33 allows for only 
one such exam, up to a cost of $2000. Very few exams are even close to 
this expensive, and it is a shame that a veteran must waste such a 
generous benefit because of this language. In order to accommodate for 
this we strongly encourage the Bill to allow multiple tests to be taken 
under the same provision, instead of just one, as we have written 
below:
    Change Section 3315 of Title 38 Chapter 33 to read:

        (a)  IN GENERAL.--An individual entitled to educational 
        assistance under this chapter shall also be entitled to payment 
        for licensing or certification test(s) described in section 
        3452(b).
        (b)  LIMITATION ON AMOUNT.--The amount payable under sub-
        section (a) for licensing or certification tests may not exceed 
        a sum of $2,000. Multiple examinations may be taken within this 
        provision up to the amount of $2000.
H.R. 4203
    Chairman Hall's Bill to mandate that payments made under the Post-
9/11 GI Bill be delivered via direct deposit is an essential part of 
bringing the VA into the 21st Century in regards to payment practices 
and working with veterans. Almost all military personnel are used to 
receiving their paychecks through direct deposit, and when they arrive 
at college, their GI Bill Benefits should be no different.
    Additionally, we hope that the Subcommittee will consider taking 
this provision a few steps further, requiring that tuition payments 
paid to the educational institution also be required to be paid through 
direct deposit. This is essential for ease of processing for the 
receiving schools, who should not be forced to look for tuition funding 
in two locations for the same veteran from the same Federal agency. 
This is particularly important for veterans who are studying abroad, or 
who are receiving Yellow Ribbon Program funding in very large amounts. 
We cannot afford to have these checks get lost in the mail any longer, 
as SVA has already witnessed among our membership this past semester.
    Finally, the VA should be required to properly label these funds 
when they are deposited. Currently it is unclear for both the student 
veteran and the educational institution what the funds are for when 
they are deposited. The VA provides no label on the money as to whether 
or not it is for housing or book stipends, a kicker, or a refund when 
it is deposited into a veterans account. Additionally, when the VA 
deposits money with an educational institution, they do not specify 
what semester the money is for, requiring even more work for our 
already over-worked certifying officials.
    With these changes, it will be significantly easier for both the 
student veterans and the schools to work with the VA in handling the 
funds that have been allocated for this fantastic benefit. We hope the 
Subcommittee will work to ensure the implementation of these provisions 
for both the Post-9/11 GI Bill and all other Chapters.
    This concludes our written testimony. Again, we would like to thank 
you for considering our opinion on these matters, and look forward to 
continuing to work with you and your staffs to help our Nation's 
student veterans.

            Very Respectfully,

                                                    Brian Hawthorne
                                               Legislative Director
                   MATERIAL SUBMITTED FOR THE RECORD

                              Law Offices of Mark E. Sullivan, P.A.
                                                       Raleigh, NC.
                                                      April 8, 2010

Honorable Stephanie Herseth Sandlin, Chair
Subcommittee on Economic Opportunity
House Veterans Affairs Committee
U.S. House of Representatives
335 Cannon House Office Building
Washington, DC 20515

Dear Rep. Herseth Sandlin:

    During the February 25, 2010, testimony I gave before your 
Subcommittee, Rep. Michael Turner asked what guidance the child custody 
provisions of the Indian Child Welfare Act could give as to Federal 
court jurisdiction, stating:
    ``These statutes with respect to the Indian Tribe as you are 
familiar with had a similar challenge and also had the congressional 
statement that it does not provide Federal jurisdiction over those 
cases. And as you I am sure you can affirm for us, it was upheld as not 
providing Federal action which this bill that I proposed would not 
either.''
    You indicated that you too are interested in whether Federal courts 
are barred from hearing claims which are grounded in the ICWA, in light 
of your experience in this area prior to election to Congress. I have 
completed the memorandum which I promised to provide to you and Mr. 
Turner, and it is enclosed. Thank you for the opportunity to present to 
you and your Subcommittee members a clear illustration of how the 
Federal courts will be available to private custody litigants in 
military custody cases if Rep. Turner's bill, H.R. 4469, were to become 
law.
    With best professional regards, I remain

    Sincerely yours,

                                                   Mark E. Sullivan

Enclosure (1-as stated)

Cf: Hon. Michael Turner (w/encl)

                               __________
             Memorandum--House Veterans Affairs Committee,
                  Subcommittee on Economic Opportunity


From:                               Mark E. Sullivan
To:                                 The Honorable Stephanie Herseth
                                     Sandlin, Subcommittee Chair
Date:                               April 6, 2010
Subject:                             Indian Child Welfare Act and
                                     Federal Court Jurisdiction


    Issue: Does a Federal district court have jurisdiction in a case 
involving the child custody provisions of Indian Child Welfare Act of 
1978, 25 U.S.C. Sec. Sec. 1901 et. seq. (``ICWA'')?
    Answer: Yes. Federal district courts have jurisdiction in ICWA 
cases under 28 U.S.C. Sec. 1331 (``Federal question jurisdiction''). 
There are other sources of jurisdiction under the ICWA as well, but the 
case law is more specific with respect to ``Federal question 
jurisdiction.''
Introduction
    The Indian Child Welfare Act provides, among other things, that an 
Indian tribe shall have exclusive jurisdiction over certain child 
custody proceedings involving an Indian child residing on or domiciled 
with a reservation, such as foster care placements, termination of 
parental rights, pre-adoptive placements and adoption placements. The 
Act imposes a higher burden of proof for State action when intervention 
occurs in the life of a Native American child (``beyond a reasonable 
doubt'' instead of ``clear and convincing''). Deference is given to 
extended family placements pursuant to Native American courts, and 
proceedings involving children in tribal courts under tribal law.
    The ICWA is a ``Federal custody law'' in only the sense that it 
governs State action in regards to Native American children. Any 
comparison to the proposals in H.R. 4469 would be a false analogy, 
since the ICWA deals not with custody disputes between private parties, 
but rather the limitations of State action regarding certain types of 
custody placements by the State. It is not applicable to child custody 
proceedings in divorce cases between individual litigants.
Discussion
    Regardless of the dissimilarities, however, the question is whether 
a Federal district court can entertain a claim under the ICWA. The key 
Federal cases which have addressed this issue, with their decisions, 
are as follows:

    (1)  Congress intended to create a Federal private right of action 
in tribes and individuals to seek a determination of their ICWA rights 
and obligations in Federal district court under the ICWA's full faith 
and credit clause and Federal question jurisdiction. Native Village of 
Venetie v. Alaska, 944 F.2d 548 (9th Cir. 1991); and
    (2)  In the narrow range of child custody proceedings under the 
ICWA, such Federal court review can even include the re-examination of 
a State court's rulings on termination of custody on the merits. Doe v. 
Mann, 415 F.3d 1038 (9th Cir. 2005), cert. denied, 126 S. Ct. 1909, 164 
L. Ed. 2d 663 (U.S. 2006).
Federal Question Jurisdiction under 28 U.S.C. Sec. 1331
    In Doe v. Mann, the Federal district court affirmed a decision of 
the California trial court terminating the parental rights of a Native 
American mother (whose child was covered by the ICWA) and approving the 
adoption of her child to a non-Indian family. The mother sued in 
Federal district court. She argued that the tribal court had exclusive 
jurisdiction. The Federal district court had ruled that a) the tribal 
court did not have exclusive jurisdiction in this particular case, and 
b) the Federal court could exercise subject matter jurisdiction over 
the case because the Indian Child Welfare Act, specifically 25 U.S.C. 
Sec. 1914, ``provides a cause of action in Federal court to invalidate 
certain State court child custody proceedings.'' Doe v. Mann, 285 F. 
Supp. 2d 1229, 1233-34 (N.D. Cal. 2003).
    On appeal, the 9th Circuit Court of Appeals affirmed. It concluded 
that the Federal district court properly exercised jurisdiction under 
the Federal question statute, 28 U.S.C. Sec. 1331, and that the Federal 
courts were entitled to review the State court judgment. The Court of 
Appeals also held that the ``Rooker-Feldman doctrine,'' which would 
otherwise prevent Federal interference in State substantive law areas, 
did not bar the district court from exercising jurisdiction because 
Congress, in enacting 25 U.S.C. Sec. 1914, provided Federal courts 
authority to invalidate State court actions in the area of child 
custody proceedings involving Native American children. Doe v. Mann, 
415 F.3d 1038, 1040 (9th Cir. 2005).
    Then--in reviewing the district court's decision on the merits--the 
appellate court concluded that the definition of child custody 
proceedings under the ICWA did not grant the tribe exclusive 
jurisdiction over the child dependency proceeding because the statutory 
structure of the ICWA demonstrated that Congress intended for States to 
be vested with jurisdiction over child dependency proceedings by 
existing Federal law. In its opinion, the Court of Appeals pointed to 
the ruling in a 1991 case:

           More than a decade ago, we resolved that the ICWA creates an 
        implied cause of action and thus serves as a basis for Federal 
        question jurisdiction under 28 U.S.C. Sec. 1331. In Native 
        Village of Venetie v. Alaska, 944 F.2d 548 (9th Cir. 1991) 
        (``Venetie I''), we concluded that Congress intended to create 
        a Federal private right of action in tribes and individuals to 
        seek a determination of their ICWA rights and obligations in 
        Federal district court under ICWA's full faith and credit 
        clause in Sec. 1911(d):

               We see no reason that Congress would not have intended 
        to give Indian tribes access to Federal courts to determine 
        their rights and obligations under the Indian Child Welfare 
        Act. The Act includes an express congressional finding that 
        State courts and agencies have often acted contrary to the 
        interests of Indian tribes.

    Doe v. Mann, 415 F.3d 1038, 1045 (9th Cir. 2005), citing Native 
Village of Venetie v. Alaska, 944 F.2d 548, 553-554 (9th Cir. 1991).
    The subsequent question was whether a Federal court is a ``court of 
competent jurisdiction'' to invalidate a State court judgment. The 
Court of Appeals articulated the issue accordingly:

        Applying Califano, we conclude that Sec. 1914's reference to 
        ``any court of competent jurisdiction'' alone does not create 
        subject-matter jurisdiction in the Federal district court 
        sufficient to review and vacate State custody decrees. 
        Consequently, we must determine whether the Federal district 
        court had jurisdiction from an independent source, 28 U.S.C. 
        Sec. 1331, making it a ``court of competent jurisdiction'' that 
        is authorized by Sec. 1914 to invalidate certain State court 
        child custody proceedings.

    Doe v. Mann, 415 F.3d 1038, 1045 (9th Cir. 2005). The Court of 
Appeals then concluded that a Federal court is, in fact, a ``court of 
competent jurisdiction to invalidate a State court judgment involving 
the Indian child.'' Doe v. Mann, 415 F.3d 1038, 1046 (9th Cir. 2005). 
The case was appealed but the Supreme Court denied certiorari. Thus the 
9th Circuit Court of Appeals has held that Federal courts do have 
jurisdiction under the ICWA to review State court decisions. There are 
no conflicting cases in other circuits.
                    Impact of Full Faith and Credit
    The Full Faith and Credit Clause of the Constitution does not, by 
itself, invoke Federal jurisdiction. Nevertheless, the incorporation of 
a full faith and credit clause into the ICWA--at 25 U.S.C. 
Sec. 1911(d)--seems to have persuaded the court in Doe v. Mann. This is 
not an isolated instance, moreover. Five years before the decision in 
Venetie I and 19 years before Doe v. Mann, the Court of Appeals 
affirmed a trial court's ruling that a tribal decision to remove a 
minor child from his home and placing him under tribal custody was the 
result of a judicial determination and must be given full faith and 
credit by states under 25 U.S.C. Sec. 1911(d). Native Village of 
Stevens v Smith, 770 F.2d 1486, 1488 (9th Cir. 1985), cert denied, 475 
U.S. 1121, 90 L. Ed. 2d 185, 106 S. Ct. 1640 (U.S. 1986). In essence, 
the Court moved from a position in 1986 that recognized the force of 
Sec. 1911(d) to a position in 1991 that the ICWA implies a private 
right of action, and then to an even stronger position in 2005 that the 
private right of action is a Federal one which can be heard on 
substantive matters in Federal district court.
                  Other Federal Bases for Jurisdiction
    In addition to ``Federal question jurisdiction,'' as discussed 
above, there are numerous other cases arising out of the ICWA that have 
been brought to Federal court under other jurisdictional bases. There 
are at least 36 ICWA-related cases that made their way into Federal 
courts based, at least in part, on Due Process/Civil Rights actions 
pursuant to 42 U.S.C. Sec. 1983. See, e.g., Morrow v. Winslow, 94 F.3d 
1386 (10th Cir. 1996); Roman-Nose v. New Mexico Department of Human 
Resources, 967 F.2d 435 (10th Cir. 1992); and Noatak v. Hoffman, 896 
F.2d 1157 (9th Cir. 1990). Similarly, the Declaratory Judgment Act, 28 
U.S.C. Sec. 2201, was invoked in at least five reported cases involving 
the ICWA. See, e.g., MacArthur v. San Juan County, 497 F.3d 1057 (10th 
Cir. 2007); Bernhardt v. County of Los Angeles, 339 F.3d 920 (9th Cir. 
2003); and Navajo Nation v. Dist. Court for Utah County, 624 F. Supp. 
130 (D. Ut. 1985). As well, the removal statute, 28 U.S.C. Sec. 1441, 
has been invoked in at least five reported cases as a basis for access 
to Federal court or as an item of consideration by the Federal courts. 
See, e.g., Paddy v. Mulkey, 656 F. Supp. 2d 1241 (D. Nev. 2009); and 
Nevada v. Hicks, 533 U.S. 353, 150 L. Ed. 2d 398 (2001).
                               Conclusion
    The Indian Child Welfare Act is clearly a poor parallel to the 
Federal custody terms in H.R. 4469. One involves State action and 
adoption/placement of Native American children, the other grants 
``Federal custody rights'' in private party custody litigation.
    However, despite these dissimilarities, both involve Federal 
district court intervention where children are involved. The doors of 
the Federal courthouse are open in ICWA litigation, just as they would 
be if H.R. 4469 passes.
    Federal district courts are empowered to hear cases in which 
Federal rights and duties are enunciated in the underlying Federal 
legislation. Congress cannot create rights for a class of litigants--
whether Native Americans or servicemembers--in the U.S. Code and then 
block the door to the Federal courthouse. Even if the bill says that it 
does not create a Federal right of action, there are numerous other 
avenues of access for Federal district court--existing Federal 
jurisdiction statutes--which will allow litigants to ask for a hearing 
in front of a Federal judge on matters involving deployment and custody 
if H.R. 4469 were passed. These existing remedies include ``Federal 
question jurisdiction'' under 28 U.S.C. Sec. 1331, removal to Federal 
district court under 28 U.S.C. Sec. 1441, declaratory relief under 29 
U.S.C. Sec. Sec. 2201-2202 (Declaratory Judgment Act) or actions for 
injunctive relief under the ``civil rights action'' statute, 42 U.S.C. 
Sec. 1983.

                                 
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