[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
U.S. GOVERNMENT PRINTING OFFICE
55-232 WASHINGTON : 2011
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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.
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\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.
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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.
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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.
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\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.