[Senate Hearing 113-884]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 113-884

                 ACCESS TO JUSTICE FOR THOSE WHO SERVE

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

                                HEARING

                               BEFORE THE

                       SUBCOMMITTEE ON OVERSIGHT,
                    FEDERAL RIGHTS AND AGENCY ACTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 27, 2014

                               __________

                          Serial No. J-113-55

                               __________

         Printed for the use of the Committee on the Judiciary

                       
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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California         CHUCK GRASSLEY, Iowa, Ranking 
CHUCK SCHUMER, New York                  Member
DICK DURBIN, Illinois                ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
MAZIE HIRONO, Hawaii                 JEFF FLAKE, Arizona
           Kristine Lucius, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director
                                 ------                                

      Subcommittee on Oversight, Federal Rights and Agency Action

               RICHARD BLUMENTHAL, Connecticut, Chairman
PATRICK J. LEAHY, Vermont            ORRIN G. HATCH, Utah, Ranking 
AMY KLOBUCHAR, Minnesota                 Member
                                     JEFF FLAKE, Arizona
                  Sam Simon, Democratic Chief Counsel
                 Tom Jipping, Republican Chief Counsel
                            
                            
                            C O N T E N T S

                              ----------                              

                       MARCH 27, 2014, 3:06 P.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Blumenthal, Hon. Richard, a U.S. Senator from the State of 
  Connecticut....................................................     1
    prepared statement...........................................   104
Flake, Hon. Jeff, a U.S. Senator from the State of Arizona,
    prepared statement...........................................   110
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     3

                               WITNESSES

Witness List.....................................................    39
Alexander, Dwain, II, Esq., Captain, U.S. Navy, Retired, and Navy 
  Legal Assistance Attorney, U.S. Navy, Region Legal Service 
  Office, Mid-Atlantic, Norfolk, Virginia........................     6
    prepared statement...........................................    55
    attachments--redacted........................................    59
Davis, Major General Andrew, Executive Director, Reserve Officers 
  Association of the United States, Washington, DC...............    22
    prepared statement...........................................    83
de Planque, Ian, Deputy Legislative Director, The American 
  Legion, Washington, DC.........................................    14
    prepared statement...........................................   101
Kantwill, Colonel Paul, Director, Office of Legal Policy, Office 
  of the Under Secretary of Defense, Personnel and Readiness, 
  Department of Defense, Arlington, Virginia.....................     4
    prepared statement...........................................    40
Odom, John S., Jr., Colonel, USAF JAGC, Retired, Jones & Odom, 
  LLP, Shreveport, Louisiana.....................................    18
    prepared statement...........................................    70
Savage, Lieutenant Kenneth ``Gene'', U.S. Naval Reserve, Memphis, 
  Tennessee......................................................    23
    prepared statement...........................................    96

                               QUESTIONS

Questions submitted to Capt. Dwain Alexander, II, by Senator 
  Klobuchar......................................................   112
Questions submitted to Maj. Gen. Andrew Davis by Senator Franken.   114
Questions submitted to Maj. Gen. Andrew Davis by Senator 
  Klobuchar......................................................   113
Questions submitted to Ian de Planque by Senator Blumenthal......   116
Questions submitted to Ian de Planque by Senator Klobuchar.......   113
Questions submitted to Col. Paul Kantwill by Senator Klobuchar...   112
Questions submitted to Col. John S. Odom, Jr., by Senator Franken   115
Questions submitted to Col. John S. Odom, Jr., by Senator 
  Klobuchar......................................................   113

                                ANSWERS

Joint responses of Capt. Dwain Alexander, II, and Col. Paul 
  Kantwill to questions submitted by Senator Klobuchar...........   118
[Note: At the time of printing, after several attempts to obtain 
  responses to the written questions, the Committee had not 
  received responses from Maj. Gen. Andrew Davis.]
[Note: At the time of printing, after several attempts to obtain 
  responses to the written questions, the Committee had not 
  received responses from Ian de Planque.]
Responses of Col. John S. Odom, Jr., to questions submitted by 
  Senator Franken................................................   121
Responses of Col. John S. Odom, Jr., to questions submitted by 
  Senator Klobuchar..............................................   120

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

Casey, Hon. Robert P., Jr., a U.S. Senator from the State of 
  Pennsylvania, ``Department of Veterans Affairs Backlog,'' 
  statement......................................................   123
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of 
  Pennsylvania, et al., letter to President Barack Obama on the 
  Department of Veterans Affairs disability claims backlog, April 
  29, 2013.......................................................   127
Heller, Hon. Dean, a U.S. Senator from the State of Nevada, 
  statement......................................................   124
Military Officers Association of America (MOAA), Alexandria, 
  Virginia, statement............................................   132
National Employment Lawyers Association (NELA), Kathryn S. 
  Piscitelli, Orlando, Florida, statement........................   138
National Employment Lawyers Association (NELA), San Francisco, 
  California, and Washington, DC, statement......................   137

 
                 ACCESS TO JUSTICE FOR THOSE WHO SERVE

                              ----------                              


                        THURSDAY, MARCH 27, 2014

                      United States Senate,
     Subcommittee on Oversight, Federal Rights and 
                                     Agency Action,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 3:06 p.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Richard 
Blumenthal, Chairman of the Subcommittee, presiding.
    Present: Senators Blumenthal, Franken, and Hatch.

         OPENING STATEMENT OF HON. RICHARD BLUMENTHAL,
          A U.S. SENATOR FROM THE STATE OF CONNECTICUT

    Chairman Blumenthal. The hearing will come to order, and I 
want to thank everyone for joining us today on this very, very 
important topic, very fittingly my last hearing as Chairman of 
this Subcommittee, and I want to thank our Ranking Member, 
Senator Hatch, for his many courtesies and all of his patience 
over the time that I have chaired this Subcommittee.
    The critical subject before us is the rights of our 
servicemembers and making sure that they are adequately 
protected. I know everybody here and countless others outside 
of this building feel the same way as we do, that those rights 
have to be protected, that they are not only worthy of 
protection but essential. And over the course of this Congress, 
we have been able to explore a variety of issues related to the 
Federal Government's duty to protect its citizens. I have been 
proud of that work. None is more important than this one. And I 
want to thank Senator Leahy for giving me this opportunity on 
this Subcommittee.
    Today's hearing is the product of a proud tradition and 
also a disappointing reality. The proud tradition is Congress' 
bipartisan support and approval of legislation to protect our 
servicemembers. And the unfortunate and very disappointing 
reality is that too many of the rights enshrined in those 
statutes are effectively dead letter because of structural and 
procedural barriers to enforcement. When servicemembers cannot 
find lawyers to take their cases, they cannot get a ruling on 
the merits even when they make it to court, and they cannot 
receive adequate compensation even when they win, in that case 
the laws on the books are not as strong or even adequate as 
they should be.
    So we are here about the Uniformed Services Employment and 
Reemployment Rights Act, which is a classic example. USERRA, as 
it is called, passed the House and the Senate by a voice vote, 
believe it or not. It stands for the simple proposition that 
American workers should not be discriminated against because 
they have chosen to serve in our Nation's Armed Forces. It is 
hard to imagine a less controversial principle.
    And yet USERRA has some of the weakest remedies, some of 
the very least adequate remedies of any comparable statute. A 
member of the National Guard or Reserve who is fired because 
they are deployed, they stand to win only back pay, 
reinstatement, and maybe some compensation for lost health care 
or pension benefits. If they experience prolonged 
unemployment--if they lose their home, their car, their 
credit--a court award will not even come close to making them 
whole.
    So employers know they face such a small punishment when 
they violate USERRA; they have little incentive to comply with 
the law. And even when a servicemember can show that an 
employer willfully violated the law, which is difficult to 
show, that servicemember can expect only to collect double 
whatever damages they would otherwise receive. In many cases, 
even this amount will not fully compensate the servicemember, 
and it rarely provides an adequate deterrent for the employer.
    There are other ways that USERRA is weak in the remedies it 
affords. I am going to put my full statement in the record. But 
I want to say that servicemembers are uniquely vulnerable in 
this respect to abusive practices, and it includes abusive 
lending practices in the financial marketplace.
    Congress has repeatedly acted to protect servicemembers, 
and it has done so again in a bipartisan fashion. The 
Servicemembers Civil Relief Act, like USERRA, which protects 
servicemembers from foreclosure and default judgments while 
they serve, passed the Senate by voice vote. The House passed 
the bill 425-0. The Military Lending Act--better known as the 
Talent amendment--was a bipartisan proposal that was rolled 
into the National Defense Authorization Act without 
controversy. And it was intended to protect servicemembers from 
loan shark interest rates of 30-plus percent.
    These statutes have made a difference, but commonsense 
reforms are needed to enable them to live up to their goals. 
And servicemembers saddled with unfair loans too often find 
these protections intended to protect them from debt collector 
harassment simply do not work.
    So while it would be illegal for a third-party debt 
collector to harass a servicemember by going to the 
servicemember's commanding officer, creditors can and do call 
commanding officers directly, sometimes scaring servicemembers 
into debts they do not even owe.
    I have called on the Consumer Financial Protection Bureau 
to help address this problem, and I hope the administration 
shares my view that servicemembers must be protected.
    I hope that regulations will be issued on a timely basis by 
the Department of Defense to make these laws more effective and 
more enforceable and that servicemembers will be provided with 
stronger protections as a result.
    [The prepared statement of Chairman Blumenthal appears as a 
submission for the record.]
    Chairman Blumenthal. So I want to thank our first panel for 
being here today. Before I swear you in for your testimony, I 
want to thank Senator Hatch again and give him the opportunity 
to make an opening statement.

           OPENING STATEMENT OF HON. ORRIN G. HATCH,
             A U.S. SENATOR FROM THE STATE OF UTAH

    Senator Hatch. Thank you, Mr. Chairman. I know this is the 
last hearing for you as the Chairman of this Subcommittee. I 
have enjoyed working with you, and I am sure you will take your 
determination and focus with you as you chair a Subcommittee on 
the Armed Services Committee.
    The hearing today focuses on our Nation's veterans to whom 
we owe so much and for whom we sometimes do too little. The 
list of issues and challenges facing veterans is long, and I 
know that you, Mr. Chairman, will be looking today at areas 
such as employment and lending. I understand that you have a 
bill that has been referred to the Veterans' Affairs Committee.
    Another and perhaps more immediate challenge for veterans 
is the difficulty and delay in receiving benefits that Federal 
law provides. In particular, servicemembers who come back with 
disabilities are entitled to disability benefits when they meet 
the statutory burden of proof. The delay in granting those 
benefits is a disgrace.
    Last year, Mr. Chairman, you and I joined 65 of our 
colleagues in signing a letter to President Obama on this 
precise issue. I have that letter here, and I would ask consent 
that it be made part of the record.
    Chairman Blumenthal. Without objection.
    [The letter appears as a submission for the record.]
    Senator Hatch. In that letter we wrote, ``This country must 
be grateful for the safe homecoming of every single man and 
woman who has served in harm's way. Our joy at their return 
must be reflected in our commitment to help all of those who 
serve.''
    I am glad that the Deputy Legislative Director from the 
American Legion could be with us today to discuss this issue. 
The name of this Subcommittee includes ``Agency Action.'' In 
previous hearings, Mr. Chairman, you have pointed out that 
executive agencies are sometimes inactive, so I think it is 
appropriate with today's focus on veterans to include the issue 
on which there is such strong bipartisan support.
    Now, Mr. Chairman, Senator Flake was unable to be here 
today, so he asked me if you would be good enough to put his 
statement in the record.
    Chairman Blumenthal. Without objection.
    Senator Hatch. He says in the first paragraph, he says, 
``While I am pleased the Senate is focusing on our veterans 
today, I am disappointed more attention is not being paid to 
the failures of the Veterans Administration to provide veterans 
their medical services and benefits. Congress has a 
responsibility to address this problem since the administration 
is apparently failing to do so.'' And I would ask that the rest 
of it be placed in the record at this point.
    [The prepared statement of Senator Flake appears as a 
submission for the record.]
    Senator Hatch. Mr. Chairman, I would also ask that--well, I 
have already put this in.
    All right. Well, I just want to thank you for holding this 
hearing, and I want to thank all these witnesses for appearing 
with us and helping us on these very important issues, and we 
really appreciate what you do. Thanks so much.
    Chairman Blumenthal. Thank you.
    Senator Franken, did you want to make any opening remarks?
    Senator Franken. No, that is okay. Why don't we go right to 
the testimony?
    Chairman Blumenthal. Great. Let me just introduce before 
swearing them in our two witnesses this afternoon. They are, 
first of all, Colonel Paul Kantwill, who is Director of the 
Office of Legal Policy of the Under Secretary of Defense. He 
has an extraordinary record of service to our Nation in 
uniform, including in Afghanistan and the Persian Gulf War, and 
is the recipient of the Legion of Merit, two Bronze Star 
medals, and numerous other military awards and decorations. As 
Director of the Office of Legal Policy in the Office of Under 
Secretary of Dodd-Frank (Personnel & Readiness), he is the 
principal advisor to the Secretary of Defense and the Under 
Secretary of Defense on legal policy matters, including the 
issues that we have before us today.
    Dwain Alexander is the legal services attorney for the 
United States Navy. He is a retired United States Navy Captain 
also with a record of extraordinary service. He is the senior 
supervisory civilian attorney and subject matter expert for the 
Region Legal Service Office, Mid-Atlantic, in Norfolk, 
Virginia.
    We thank both of you for being here today, and I am going 
to ask you, as is our custom in this Committee, to please rise 
and take an oath.
    Do you affirm that the testimony that you are about to give 
before the Committee will be the truth, the whole truth, and 
nothing but the truth, so help you God?
    Colonel Kantwill. I do.
    Captain Alexander. I do.
    Chairman Blumenthal. Thank you. And if you have an opening 
statement, we would be very pleased to hear it.

 STATEMENT OF COLONEL PAUL KANTWILL, DIRECTOR, OFFICE OF LEGAL 
POLICY, OFFICE OF THE UNDER SECRETARY OF DEFENSE, PERSONNEL AND 
     READINESS, DEPARTMENT OF DEFENSE, ARLINGTON, VIRGINIA

    Colonel Kantwill. Thank you and good afternoon, Mr. 
Chairman, Ranking Member Hatch, and Members of the Committee. 
It is an honor to appear before you and to represent the 
Department of Defense and all of our great people. On behalf of 
the Department, I thank you for your assistance and for your 
support in protecting our servicemembers' access to their 
Federal rights and for the opportunity to address you today 
regarding those rights in the consumer financial marketplace.
    I will discuss first the Servicemembers Civil Relief Act. I 
will then discuss other challenges confronting servicemembers 
and their families in today's marketplace, focusing on issues 
and challenges relating to the Military Lending Act, as the 
Department sees this as one of the biggest current financial 
challenges facing our force.
    The Department recognizes and appreciates fully the 
critical importance of the SCRA. No other statute provides the 
breadth of benefits and protections for servicemembers that the 
SCRA does, and over its long history of more than 70 years now, 
it has lessened some of the very many significant burdens 
associated with military service.
    Congress has continued to play a critical role in 
protecting our servicemembers and their families, strengthening 
the Act and its protections in many ways, especially in recent 
years.
    It is with pride, therefore, that we assert that the 
current status of SCRA education, compliance, and enforcement 
is largely a ``good news story.'' We have all read accounts of 
mortgage foreclosure abuses, and we know well the ravages that 
the economic crisis and the burdens of more than 13 years of 
deployments have had on the financial fitness of military 
families.
    We believe, however, that we have been very effective in 
curbing foreclosure abuses against military personnel and their 
families. This is the result of much sustained and very hard 
work within the Department and with other governmental agencies 
and the financial industry.
    The Department is fortunate to enjoy a tremendous 
relationship with other Federal agencies relating to consumer 
law issues--the Department of Justice, the CFPB, and the Office 
of the Comptroller of the Currency, to name just a few. Federal 
enforcement actions brought by our colleagues at Justice have 
been swift and effective. We are pleased always to have the 
CFPB at our sides. State and local enforcement and compliance 
efforts are critical.
    There may still be, however, foreclosures out there, and we 
may yet to be out of the economic woods. Nor are we prepared to 
say that everything on the SCRA front is a completely rosy 
picture. We are looking closely, for example, at issues like 
the reduction of interest rates on student loans under the SCRA 
and are pleased to be joined in these efforts by the Department 
of Justice and by our friends at the CFPB and OSA.
    We also have concerns regarding waivers under the SCRA, a 
topic that my friend and colleague Dwain Alexander will speak 
to you about momentarily.
    There are other SCRA issues out there as well, and I am 
pleased that a great patriot and dear friend, Colonel (Retired) 
John Odom, will address that from a practitioner's viewpoint on 
the second panel.
    Despite many of the successes we can cite on the SCRA 
front, however, we have concerns regarding small dollar lending 
and related products and services. Significant departmental, 
interagency, and congressional action resulted in the Military 
Lending Act more than 7 years ago, we have stamped out the 
majority of abuses in the areas regulated. Several years 
removed from its enactment, however, many parties, from 
services to State Attorneys General, have expressed concerns 
that the industry, including some unscrupulous lenders, have 
sought and are seeking to create products and services which 
fall outside of the MLA. This has not escaped our or Congress' 
attention, and at your direction, the Department is studying 
changes in the credit marketplace and their effects on 
servicemembers and their families.
    The Department's Advanced Notice of Proposed Rulemaking was 
published in June of 2013. We received and analyzed responses 
to our Federal Register notice in order to obtain a broad basis 
of feedback from consumer advocates, financial industries, 
Federal and State regulators, and engaged citizens in order to 
determine the potential benefits, pitfalls, and consequences of 
extending the definitions in the regulation to cover additional 
forms of credit.
    The Department assembled the prudential regulators and the 
CFPB to explore potential revisions to the regulation. This 
group included a team of skilled economists, analysts, and 
drafters to assist us in the rulemaking.
    We remain committed to balancing regulation with education 
and assistance to maintain financial readiness, and the 
Department plans to maintain a steady approach to the 
implementing regulation to balance the protections offered 
through the regulation while sustaining access to helpful 
financial products.
    On behalf of the Department, I thank you for your 
assistance and support. It is my privilege to be before you, 
and I look forward to your questions.
    [The prepared statement of Colonel Kantwill appears as a 
submission for the record.]
    Chairman Blumenthal. Thank you very much, Colonel Kantwill.
    Mr. Alexander.

  STATEMENT OF DWAIN ALEXANDER, II, ESQ., CAPTAIN, U.S. NAVY, 
RETIRED, AND NAVY LEGAL ASSISTANCE ATTORNEY, U.S. NAVY, REGION 
     LEGAL SERVICE OFFICE, MID-ATLANTIC, NORFOLK, VIRGINIA

    Captain Alexander. Chairman Blumenthal, Ranking Member 
Hatch, and distinguished Members of the Committee, I am honored 
and humbled to have the privilege of speaking before you and to 
represent the Navy's Judge Advocate General's Corps and our 
servicemembers we support.
    I am a civilian legal assistance attorney. My office 
supports mission readiness by addressing servicemembers' legal 
issues. We provide wills, family law advice, but the issues 
that follow the servicemembers, the ones where we can make a 
change that helps today, are the consumer law issues--issues 
like those faced by the thousands of sailors who deploy with 
the USS George H.W. Bush strike group. Those sailors left their 
homes and affairs to tend to the Nation's business. They were 
concerned about their families, their property, and the 
obligations they were leaving behind.
    Successful mission completion and a safe return depend upon 
their ability to focus on their duties. The Servicemembers 
Civil Relief Act's purpose, its sole purpose, is to relieve 
servicemembers from civil distractions so that they can focus 
on defending the Nation.
    The SCRA is the advocates' and the servicemembers' most 
powerful legal readiness resource. Working with the SCRA, I 
have observed that our national defense comes at a cost to 
everyone. I see the anxiety in the deploying servicemember. I 
hear the stress from the family members that are left behind. 
And I listen to business concerns that the servicemember may be 
unable to comply with an obligation or that additional costs 
may be incurred in resolving problems. The SCRA strikes a 
balance between those individual interests and the Nation's 
need for a mission-ready, focused fighting force.
    There are several changes that would enhance the SCRA. 
Colonel Odom will address those later. But I am concerned that 
there is one change that, if not made, will allow the balance 
and the protections provided by the SCRA to be totally 
circumvented. That needed change is a prohibition of pre-
dispute waivers.
    Section 517 of the SCRA allows the servicemember to waive 
any and all rights provided by the Act. The waiver provision 
can be beneficial. For instance, if the service had a beater 
that they left on the waterfront and that was towed, the SCRA 
would require that the towing company go to court before they 
could sell that vehicle. During that time it is earning fees 
that could exceed the value of the vehicle. If the 
servicemember waived his rights under the SCRA, that could be 
sold, saving both time, money, and expense for the 
servicemember.
    In that instance, though, the servicemember is aware of his 
rights. He is aware of the fact that there is a risk involved 
with this property, and he makes a knowing and voluntary choice 
to waive his rights. In fact, many States make voluntary and 
knowing act a requirement for a valid waiver, which is 
especially important considering that our servicemembers' 
future, location, mission, and needs are subject to change with 
little notice.
    Contrast that scenario with the pre-dispute waiver used in 
contracts today. In markets with large military populations, 
residential leases will frequently contain an SCRA waiver. 
There are samples of several of these waivers attached to my 
formal written statement. The waivers are required at the 
inception of the contract, and they remove the right to reopen 
a default judgment, protection from eviction, and the right to 
terminate a lease. The servicemember who signs a pre-dispute 
waiver with a landlord will be denied his rights under the 
SCRA. This servicemember will be exposed to financial risks 
from the vacant property during the 8-month deployment, or he 
could be prevented from sending his family home to a more 
secure and supportive environment. The inability to challenge a 
default judgment could impact his security clearance and his 
mission readiness, and the emotional stress placed on the 
family from the situation can be devastating.
    Circumvention of these rights affords servicemembers 
through the pre-dispute waiver removes the balance created by 
the SCRA and shifts the entire burden for mission readiness to 
the individual servicemember. It effectively places command and 
control of the SCRA as a readiness tool in the hands of the 
company seeking to enforce the waiver.
    The application of pre-dispute waivers has the potential to 
undermine the SCRA and the national policy it supports. The 
pre-dispute waiver can be employed as burden-shifting and cost-
savings measures by all types of businesses: mortgage lenders, 
banks, credit unions, subprime lenders, automobile dealerships, 
merchants, and others. In fact, after the JPMorgan Chase 
settlement with the Department of Justice for violations of the 
SCRA, it requested that servicemembers waive all of their 
rights as a precondition for short sale assistance, with no 
guarantee that there would actually be a short sale. As they 
had encountered problems, it was easier to have the rights 
waived so they would not violate the law again than to comply.
    A company should not be allowed to undermine the important 
policy that the SCRA represents and determine that their needs 
are more important than the servicemember's or the national 
defense.
    I thank you for your time and for the opportunity to speak 
before you. Thank you.
    [The prepared statement of Captain Alexander appears as a 
submission for the record.]
    Chairman Blumenthal. Thank you. Thank you both for those 
excellent opening statements.
    Let me begin with the first round of questioning. I think 
we will allot 7 minutes to each of us.
    Colonel Kantwill, as you know, and as noted in your 
testimony, consumer credit lenders often can make minor 
changes, like the term of a loan by 1 day, and the 
servicemember loses MLA protection. I am happy here that the 
Department is writing new regulations to deal with these 
issues, and I am wondering if you could describe how quickly 
those regulations will be available and what the process will 
be going forward.
    Colonel Kantwill. Yes, Senator, and I would first like to 
thank you and your staff and the Committee staff for holding 
this very important hearing. It has been wonderful working with 
all of them. They have been quite helpful, and the Department 
certainly appreciates it.
    Chairman Blumenthal. Thank you.
    Colonel Kantwill. As I indicated my statement, the Advanced 
Notice of Proposed Rulemaking was accomplished last summer, and 
since that time the drafting committee has been hard at work. 
We are at the stage now where the rule is very near 
finalization, and we are preparing now to post it in the 
Federal Register, which we hope to accomplish in certainly less 
than 60 days, for the comment period. And then we hope to 
finalize the rule by the end of this calendar year, so the end 
of September this year. So things are moving rapidly along.
    Chairman Blumenthal. You know, and I do not mean this by 
any way critically, but for the average person out on the 
street, in fact, maybe the average servicemember, the end of 
the year looks a long ways away. And part of the reason that we 
are having this hearing--and we have held other hearings on 
other rules and rulemaking that seems to have been 
unfortunately delayed too long, and in many instances much 
longer than this rule--is because rules delayed are justice 
denied. And for servicemembers who are victims of these MLA 
abuses, that is a long time to wait for a rule that will 
protect them.
    I do not mean in any way to be critical of you personally 
or even the Department because I know that there are 
requirements under the Administrative Procedures Act that have 
to be followed. But I wonder whether there is any possibility 
of accelerating that process.
    Colonel Kantwill. Your point is well taken, Senator, and we 
recognize fully that each passing day potentially costs people 
money, anguish, et cetera. This has been a heavy lift, I must 
admit. It is a gargantuan task. We are very, very grateful for 
the assistance from the Federal Deposit Insurance Corporation, 
from members of the Federal Reserve Board, the OCC, the OSA, 
all of those folks. And we have been very careful, and we have 
been very considerate. We wanted this to be an open and 
transparent process. We wanted, Senator, to comply with all of 
the statutes and regulations.
    So we are moving and I pledge to you that we will move with 
all due consideration for the folks who need our assistance, 
and we will produce the best product we possibly can in the 
shortest possible amount of time.
    Chairman Blumenthal. Thank you. And I appreciate that very 
welcome approach of wanting to do everything as possible as 
quickly as possible, with the knowledge that if it is not done 
right, it will be vulnerable to attack.
    Let me switch topics slightly. Have you or the Department 
given any consideration to incorporate financial training into 
mandatory training for the members of the Armed Forces--in 
other words, financial education as a required component for 
military training?
    Colonel Kantwill. We have, Senator, and I am pleased to 
report that we do. We are now training people on financial 
awareness in very many respects, from even before the time that 
they enlist. So through our colleagues at the CFPB and the OSA, 
we have training programs consistent with the delayed entry 
program.
    We have financial education and training embedded into 
nearly every stage of training. We present it at basic 
training, at advanced individual training. It happens--it 
follows a servicemember, if you will, at each particular 
installation to which they are assigned. It is embedded into 
the pre-mobilization process and the post-mobilization process 
as well.
    We have individual--certainly we have classroom-type 
facilities where briefings are given. We also have assistance 
of people like Mr. Alexander, the boots on the ground, the 
attorneys who are helping them in the field. We have personal 
financial managers at each and every installation that provide 
them that sort of assistance as well. The legal assistance 
attorneys are very proactive with their preventive law 
programs.
    So I am pleased to report, Senator, that we think this is a 
very robust and successful program.
    Chairman Blumenthal. Thank you.
    Mr. Alexander, do you think that reforms are needed to 
Section 517 to improve protection for our servicemembers? And 
if so, what kinds of reform do you think would be advisable?
    Captain Alexander. I think that as the Act currently 
stands, the ability to waive any and all rights before you know 
what rights you are waiving is hazardous for the servicemember 
and overly beneficial to the community. That balance-shifting 
problem exists.
    The idea that a pre-dispute waiver is acceptable is 
considered in other laws and banned, so there are laws that are 
already on the books where they say you cannot pre-dispute 
waive your rights under the Employment Rights Act or civil 
rights laws. And I think that the policy expressed in the SCRA 
of providing for our national defense is an important enough 
policy that it also should have some protections from pre-
dispute waivers.
    Chairman Blumenthal. So that is the reform that you think 
is important?
    Captain Alexander. On that issue, yes, sir.
    Chairman Blumenthal. And what about other issues? What 
other issues do you think need to be addressed?
    Captain Alexander. The waiver of the SCRA is a central 
problem. In contracts today, there are also arbitration 
provisions. Those provisions are essentially another form of 
waiver. If you can get into a contract signed to waive your 
rights, you can also get in a contract signed to this 
arbitration provision. And when you do that, you in effect 
waive your rights because you remove from consideration the 
rights you have under the SCRA, and that is an important 
problem. So putting in--allowing--or stopping pre-dispute 
arbitration provisions would also protect servicemembers.
    Chairman Blumenthal. Do you know of individual 
circumstances where servicemen and -women have been harassed 
and you or your fellow advocates have been unable to protect 
them?
    Captain Alexander. Yes, sir. Chairman, as you know, the 
Fair Debt Collection Practices Act protects people from third-
party collection agencies and actions. However, the primary 
creditor has basically no restrictions, and so the ability of 
that party to pursue a collection action through the command 
and with the servicemember is present and threatening.
    Chairman Blumenthal. So strengthening the Fair Debt 
Collection Practices Act also would be advised.
    Captain Alexander. Yes.
    Chairman Blumenthal. And do you have any specific 
suggestions about how it should be strengthened?
    Captain Alexander. I think I should take that question for 
the record.
    Chairman Blumenthal. Okay.
    [The information appears as a submission for the record.]
    Chairman Blumenthal. Well, if I may suggest, maybe 
increasing the penalties and the specificity of prohibitions 
would be two areas that we might want to think about. Would you 
agree?
    Captain Alexander. I would agree. The businesses make 
decisions sometimes on a cost/benefit analysis, and if the cost 
is too high, the risk too extreme, those decisions will not be 
made.
    Chairman Blumenthal. Thank you.
    Senator Hatch.
    Senator Hatch. Well, thank you. I just want to thank both 
of you for your service and tell you we really appreciate your 
testimony here today.
    Thank you, Mr. Chairman.
    Chairman Blumenthal. Thank you.
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman, for holding this 
hearing.
    Mr. Alexander, you just talked about pre-dispute 
arbitration clauses in contracts that essentially waive SCRA 
rights of our servicemen and -women. In December, I held a 
hearing on the Arbitration Fairness Act, a bill I introduced to 
prohibit the use of mandatory pre-dispute arbitration in 
employment and consumer and civil rights contracts and 
antitrust cases. That bill would reopen the courthouse doors to 
servicemembers whose rights are violated under a number of 
statutes that we're discussing today--USERRA, SCRA, and the 
Military Lending Act, and others. I would invite my 
colleagues--in fact, I know the Chairman has cosponsored this 
piece of legislation. I would invite Senator Hatch to do so as 
well.
    I would also invite my colleagues to review the testimony 
of Vildan Teske. She is an attorney from Minneapolis who 
represents servicemembers. She testified and talked about how 
arbitration clauses effectively insulate corporations from 
accountability and block servicemembers from enforcing their 
rights. She shared several cases with us, including an SCRA 
case she filed on behalf of a soldier from Minnesota who was 
foreclosed upon while serving at Camp Anaconda in Balad, Iraq.
    The complaint said that the lender, the bank, submitted a 
false affidavit stating under oath that the bank knew the 
soldier was not in military service, and he was. So their 
affidavit was totally untrue under oath.
    Using that false affidavit, the lender got the sheriff to 
put the soldier's house up for sale, and the lender ended up 
buying the house at auction for a fraction of the value of the 
house--while he was serving our country in Iraq.
    The soldier wanted to hold the bank accountable for its 
actions, and he wanted to make sure that other soldiers could 
protect their rights, too. So he filed a class action 
complaint. But buried in the soldier's stack of mortgage 
documents was an arbitration clause which not only pushed the 
soldier out of court, but also required him to go it alone. He 
could not even do a class arbitration.
    To me, this is an outrage. It is no way to enforce the law. 
He wanted to go, and he wanted to make sure that other 
soldiers, other servicemen and -women knew that this was 
happening and be able to find other members that it happened 
to.
    Captain Alexander, what are your thoughts on this? You can 
elaborate on your written testimony that arbitration 
agreements--and just your testimony to the Chairman that 
arbitration agreements can be used to nullify the SCRA and put 
undue burdens on individual servicemembers. What do you think 
about this?
    Captain Alexander. Senator Franken, the contracts that my 
clients see are sometimes pages long with very small print. 
Their preprinted portion is not negotiable for that 
servicemember, so the portion that contains the arbitration 
provision is really consideration for will that be in there or 
not and what it means is really understood by the servicemember 
when they are agreeing to these terms. You may be able to 
negotiate the price or the years or the interest. Those things 
may be somewhat negotiable. But the provisions for collection 
or dispute or other things that are in the contract are not 
negotiable. So finding it buried in the bottom of the contract, 
as Vildan Teske did, seems like something that would happen to 
most consumers and servicemembers today.
    The class action perspective, servicemembers are frequently 
relocating. They are a transient population. And so the ability 
to enforce the rights of many through the actions of one 
through class action would probably be beneficial to 
servicemembers, and that right is also gone.
    If you looked at the purpose of consumer laws and the SCRA, 
they do not represent--they do not protect consumers and 
servicemembers. They protect our economy. Consumer laws were 
written to protect our market economy from bad players, to keep 
things fair for the businesses that participate. And the SCRA 
was written to protect our Nation through providing for 
servicemembers.
    Those are big policies that are undermined by arbitration 
because you no longer have the individuals who are supposed to 
enforce those rights doing it. Consumers are able to enforce 
their rights under consumer laws when they can go to court to 
do that. When the arbitration provisions are in place, it takes 
away the venue decisions that might be discussed or would be 
available under normal law. It takes away the cost provisions 
that might be less under normal law. And it exposes the 
servicemember to the issues and things that they would not 
normally have to consider.
    We had a case recently where a servicemember did everything 
right. If he was my client or I was advising him, he did 
everything right. He saved his money. He bought a vehicle for 
cash. He bought a vehicle that met his needs, not his wants. He 
also bought a warranty to protect himself in case something 
went wrong. The vehicle was sold as is, and the dealer 
understood the condition of the vehicle because they had it on 
their lot and inspected it before they sold it to him.
    The warranty company refused to--the vehicle has failures 
later on that should have been covered. The warranty company 
failed to repair the vehicle, as would have been required, but 
it had an arbitration provision that required that this 
decision be considered in New York. It is a $4,000 vehicle. 
Everything happened in Virginia. But this case would have to be 
arbitrated in New York. And those are the type of issues that 
our servicemembers are facing that just takes this completely 
out of the consideration, not to mention that if the 
servicemember needed to have any forms of evidence or discovery 
in this process, that would not be available under arbitration.
    My main concern with arbitration, though, is that if you 
are a good business using the law as it was intended to be 
used, it may be not harmful at all. But my servicemembers 
encounter sometimes the worst, the least scrupulous business 
out there, and these businesses--car dealers, merchants selling 
anything or using arbitration provisions--to basically make a 
profit at the expense of the consumer and the servicemember. So 
they choose the arbitration, the provider of the service; they 
choose the venue where it is going to happen; they can then 
sell junk, commit fraud and misrepresentation, and say, ``But 
you cannot sue me. There is an arbitration provision.''
    Senator Franken. Right.
    Captain Alexander. And that takes it out of our hands 
totally.
    Senator Franken. So just one last yes-or-no question. In 
your view, would it benefit our servicemembers if Congress 
amended the Federal Arbitration Act to prohibit the use of 
mandatory pre-dispute arbitration in cases involving employment 
and consumer claims?
    Captain Alexander. You want a ``yes'' or ``no'' answer? 
Yes.
    Senator Franken. Okay.
    Chairman Blumenthal. You can give a longer answer if you 
wish.
    Senator Franken. Yes, how would it----
    [Laughter.]
    Senator Franken. Well, I was over my time, but how about--
okay, how?
    Captain Alexander. My thought, sir, was that, again, if 
most common laws require for a waiver, that there be knowledge 
and a voluntary act. And arbitration is, in fact, for all 
practical purposes, a waiver that stopping a pre-dispute 
arbitration provision would be the same thing as stopping the 
pre-dispute waiver provision. And they are both very important. 
In every instance where a consumer or an individual is dealing 
with another company or an entity, they are at a disadvantage 
because it is generally one person versus an entity with money 
and time and resources that writes the contract.
    Senator Franken. It is a contract of adhesion.
    Captain Alexander. It is a contract where the parties are 
not equal in dealing with their concerns, and that unequal 
status leads to unfortunate consequences for servicemembers.
    Senator Franken. Thank you.
    Thank you, Mr. Chairman.
    Chairman Blumenthal. Thank you, Senator Franken.
    This set of issues is hugely important, and I want to thank 
both of you and your staffs and everyone under your command for 
your very diligent and significant work. And thank you for 
being here today.
    We are going to be moving on to the next panel, but I hope 
that I and my staff can continue to work with you. Even though 
I am not going to be the Chairman of this Subcommittee, I have 
a very active interest in it as a Member of the Armed Services 
Committee, the Veterans' Affairs Committee, and this Committee, 
the Judiciary Committee. So I hope that we can continue to work 
together on the Military Lending Act, the regulations that you 
are going to be issuing, as well as the work that you are 
doing, Mr. Alexander. And, again, my sincere thanks for being 
here today.
    Captain Alexander. Thank you, Mr. Chairman.
    Colonel Kantwill. Thank you, Mr. Chairman.
    Chairman Blumenthal. We will move on to the next panel. We 
will ask them to come forward, and while you are doing that, 
let me just say that I am going to go slightly out of order 
here and ask Ian de Planque to be the first witness and give 
Senator Hatch an opportunity to ask some questions of him 
because of the scheduling needs that we have on this side of 
the bench, so to speak. And we welcome all of you here today.
    I am going to ask all of you, now that you have made 
yourselves comfortable and sat down, to please rise and take 
the same oath. Do you affirm the testimony you are about to 
give to the Committee will be the truth, the whole truth, and 
nothing but the truth, so help you God?
    Mr. de Planque. I do.
    Colonel Odom. I do.
    General Davis. I do.
    Lieutenant Savage. I do.
    Chairman Blumenthal. Thank you.
    Mr. de Planque is a deputy director in the Legislative 
Division of the American Legion, and he focuses there on issues 
related to veterans benefits and health administration. He has 
served as a sergeant in the Virginia Army National Guard and 
was deployed to Afghanistan during his service. He has been on 
the staff with the American Legion since 2007, and his 
experiences advocating for veterans certainly contribute to the 
conversation today.
    John Odom, as was mentioned earlier, has been a long-time 
expert on the issues that are presented today. In fact, he 
wrote the benchbook used by Federal district court judges on 
the Servicemembers Civil Relief Act and is one of the Nation's 
foremost experts on USERRA. He is a retired United States Air 
Force Colonel.
    Major General Andrew Davis is executive director of the 
Reserve Officers Association. He retired from the Marine Corps 
in October 2008 after a 38-year career, including tours in 
three wars. During his career he served as an infantry officer 
and major general. He assumed the duties of executive director 
of the 60,000-member Reserve Officers Association of the United 
States on November 1, 2011. And through its Servicemembers Law 
Center, the Reserve Officers Association offers expert legal 
information on employment, military voting rights, and other 
legal issues that are important to citizen warriors.
    Finally, Lieutenant Kenneth ``Gene'' Savage, United States 
Naval Reserve, was a servicemember for 24 years and decorated 
Reserve officer who was fired from his job after attempting to 
secure rights protected by USERRA.
    And I want to thank every one of the members of our panel 
for your service to our Nation, and ask Mr. de Planque to 
please go first, and then I am going to yield to Senator Hatch 
for any questions that he may have.

 STATEMENT OF IAN de PLANQUE, DEPUTY LEGISLATIVE DIRECTOR, THE 
                AMERICAN LEGION, WASHINGTON, DC

    Mr. de Planque. Thank you, Mr. Chairman, and I fully 
understand being flexible, having come from an infantry 
background. And I want to thank you, Ranking Member Hatch, and 
the Members of the Committee for having the American Legion 
here to talk about this and for talking about it outside of a 
venue that is not normally seen.
    And the backlog is a big concern. Just yesterday morning, 
our National Commander, Dan Dellinger, was addressing a joint 
session of the House and Senate Veterans' Affairs Committees on 
behalf of the 2.4 million members of the American Legion, and 
one of the top concerns that he had was the claims backlog.
    What does the claims backlog mean? A number of years back, 
Secretary Shinseki defined it as ``any claim waiting over 125 
days.'' Currently of the over 630,000 claims pending, it is 
about 55, 56 percent of those claims. When he initially made 
the promise back in 2009, 2010, to get rid of the backlog, it 
was only about 38 percent of the claims pending. It has been 
continuing to grow for a while, and it is something that is 
deeply concerning.
    There are a number of reasons for this, and I want to 
address two of them, kind of go into more detail and hopefully 
flesh out some of the things that are in the written remarks 
that I offered.
    One of them is there is a tremendous pressure on VA 
employees the way their work credit is counted to just get the 
claim off their desk to the next thing. They do not get any 
credit differently whether they do the claim right or whether 
they do the claim wrong. And they have a lot of people, 
including many of the people in Congress, many of the people in 
the veterans community, who are pushing them to get these 
claims done. You have veterans waiting a year or 2 years for an 
initial claim when they are trying to get it to a target of 125 
days.
    The American Legion does 10 to 15 regional office visits, 
Regional Office Action Review visits. They take about a week. 
We go to a regional office across the country. We look at 
recently adjudicated claims. We ask the VA for a random sample 
of the ones in the American Legion POA, and we take a look at 
the claims. We interview the VA personnel. We interview our 
service officers. We have over 2,900 service officers 
accredited throughout the country helping veterans with their 
claims. And I was talking to a VA employee, a veteran of 
Afghanistan, National Guard, who had just gotten back. We were 
talking about the places he had served, and he worked on 
claims, decided claims, and he points to a stack from a folder 
that was about this tall, and he said, ``You know, I put the 
face of a member of my platoon on every claim that I work on. I 
am a veteran. I am helping veterans, and I am trying to do 
that. I have a stack this big of papers to get through. I have 
2 hours to look at that claim. How am I giving that veteran 
justice?''
    And I think the system the way it is in place right now, 
the way VA looks at work credit, because there is such pressure 
on that and there is not as much pressure on accuracy, it puts 
employees in a position where they may feel the need to cut 
corners. So that is one thing.
    The other thing I want to think about is the electronic 
transmission of information back and forth between VA and the 
DOD. The claims backlog actually is not a new thing. If you 
look at the metaphor for bureaucratic failure in America, it is 
red tape. And a lot of people do not know the origin of that, 
but if you go back, the origin of the phrase ``red tape'' goes 
back to these red ribbons they used to tie around the War 
Department folders for Civil War soldiers. And when you were 
trying to get your benefits after the Civil War, to cut through 
the red tape was to actually be able to get at the information 
in those files and go do that.
    This is a problem that has been around for a while. But the 
problem is we are in the 21st century, and when the VA has to 
go get their files on the veterans so that they can determine 
what is going wrong with their claim, and they go to the DOD or 
when you have the National Guard involved, then you have to get 
the state records, and it gets very complicated and convoluted. 
It can take 6 months. It can take 8 months. It can take a long 
time to get those records. This is the 21st century. We should 
be able to transmit that information back and forth instantly.
    There was broad bipartisan support, both of the recent 
administrations have been in support of a single unified 
electronic record. Both sides of Congress have been in support 
of a single unified electronic record. They attempted to push 
forward and do this. They spent over $1 billion trying to 
develop one, and just in the past year, VA and DOD said, you 
know what? We are going to go our separate ways. Each of us are 
going to come up with our own electronic recordkeeping system, 
but we will make sure that it communicates with the others.
    Well, that does not instill a lot of confidence in the 
veterans that are out there, that they would spend that much 
time and still not be able to do something that should be basic 
to the 21st century.
    So there is still pressure that can be put on both the VA 
and DOD to improve that handoff piece. There are other things, 
but the last thing that I want you to remember, that I want you 
to take away is, when we think about the backlog, we are 
winding down the war in Afghanistan. We have already wound down 
the war in Iraq. The wars are going away from the front page. 
But the veterans who are still dealing with the system are not 
going away from the front page. And it does take not just the 
Veterans Committees in Congress, but it takes everybody in 
Congress to help keep the attention on it.
    So thank you, and I am happy to answer any questions that 
you have.
    [The prepared statement of Mr. de Planque appears as a 
submission for the record.]
    Chairman Blumenthal. Thank you.
    I am going to yield to Senator Hatch for his questions. 
Before I do, let me just say on this issue of the records 
handoff, as you put it, the supposed seamlessness of the 
records, I do not know whether you are aware, but I have 
actually introduced an amendment that would require the DOD and 
the VA--an amendment to the National Defense Authorization Act 
and then to the omnibus veterans bill. I could not agree with 
you more. I have been deeply disappointed, in fact, pretty 
angry about the failure so far to make them completely 
transparent and seamless, transparently seamless. And I am 
going to yield to Senator Hatch.
    Senator Hatch. Thank you, Mr. Chairman. I appreciate it. 
And I appreciate all four of you, as well as the other 
witnesses. We appreciate you taking the time to come and help 
us to understand this. And I am sorry I have to go to the 
floor, but I just thought I would ask a couple questions.
    Is it pronounced ``de Planque''?
    Mr. de Planque. That is correct.
    Senator Hatch. Well, I am grateful to have all of you here 
today and for the great work that the American Legion does. In 
your testimony, you note that Veterans Affairs Secretary 
Shinseki said in 2010 that claims should take no more than 125 
days to process and that the backlog would be eliminated by 
2015. Now, that was 4 years ago.
    My reading of your testimony is that the number of claims 
pending longer than that 125-day benchmark has risen by 78 
percent since then. And the percentage of all claims that 
exceed that benchmark has risen from 139 percent in 2010 to 
almost 56 percent today. Naturally, I think that is going in 
the wrong direction. I am sure you do, too.
    Do you believe that the Secretary's goal of eliminating the 
backlog by next year is going to be met at all? And let me ask 
one more. Do you see any numbers or trends or anything positive 
in this area?
    Mr. de Planque. Thank you, Senator, and that is a very good 
point. And you are absolutely right to see that the trend has 
not gone in the right direction. Certainly for the first 
several years of that, it definitely--the backlog continued to 
rise, the number of days it took to work the claims continued 
to go up, and that was very troubling.
    There has been a slight turn this year, a slight turn to 
the better. Believe it or not, looking at that 55 percent, that 
is actually a little better than we started the year out. So 
they are starting to turn the tide, but we do have a concern 
that the VA is going to feel that they are under so much 
pressure that they have to meet that deadline by 2015 that they 
are going to meet it no matter what and that there is going to 
be blowback. And I want to kind of explain some of that.
    Last year, they did a provisional ratings for claims that 
had been waiting 2 years or longer, and the Office of the 
Inspector General found that in one of the offices in Los 
Angeles, they misinterpreted the directions from central 
office, and they just prematurely issued denials in 91 percent 
of the cases when they were still waiting for medical exams and 
other things. And so those veterans now have to appeal. That 
claim does not count as an initial claim. That claim is now an 
appeal, so it is not in what we see of the backlog. So their 
numbers went down a little bit, but that is certainly veterans 
who are still waiting for justice. And as the Chairman said 
earlier, justice delayed is justice denied.
    So we are a little bit concerned. We do not want it to be a 
situation where they are so concerned about making those 
numbers that they start sacrificing the accuracy and the 
justice for those veterans. It needs to be a situation where we 
get the result that we want, not necessarily the number that we 
want.
    Senator Hatch. Thank you. Here in the Senate, a bipartisan 
group of eight Senators have formed a VA Claims Backlog Working 
Group. Mr. Chairman, I have received statements from two of the 
leading Senators in that working group, Senator Robert Casey of 
Pennsylvania and Senator Dean Heller of Nevada, which I ask 
consent to be made part of the record at this point.
    Chairman Blumenthal. Without objection.
    Senator Hatch. Thank you.
    [The letter appears as a submission for the record.]
    Senator Hatch. Now, Mr. de Planque, Senator Casey states 
that by ``refining management practices in the Veterans Affairs 
regional offices and modifying current procedures, the VA can 
serve our veterans more quickly.''
    Do you agree with that? And could you please mention just a 
couple of changes in this area that you think might or could 
really make a difference?
    Mr. de Planque. Absolutely. And thank you for mentioning 
Senator Heller and Senator Casey's Backlog Working Group. I 
think they are doing a tremendous job looking at the problem, 
and I think one of the best things they did, one of the first 
things they did was they reached out to the veterans groups 
that are out there. They reached out and asked the veterans, 
``What problems are you having accessing the system?''
    As I mentioned, we have 2,900 accredited service officers 
who are helping veterans in every county in the country. So 
they deal with this on a daily basis, and they were listening 
to what we had to do, and they worked throughout the process 
with us.
    Some of the things that they have, there are ways that--if 
a veteran works with a service officer, VA developed something 
that they call the ``fully developed claims program,'' and the 
working group made recommendations to kind of strengthen that 
program. Working with the service officer, you can provide most 
of the information the VA needs up front, and they can make the 
decision faster.
    The VA likes this because they do not have to do as much 
work tracking down all the information. The veterans and the 
service groups like it because they can get a decision much 
faster. You know, instead of waiting 300, 400 days for a 
decision, you are waiting 100 days for a decision. And so that 
is one way in which they can work.
    There have been other things that they have mentioned about 
providing veterans information about how they can get faster 
hearings, whether they utilize videoconference hearings or in-
person hearings, getting more information to them to help make 
the choices that are going to help them navigate the system 
better, and I think those have been good. And the important 
thing has been having VA, Congress, and the veterans all 
involved in the conversation from the very beginning, from the 
ground up, because those are all people who have to deal with 
the system.
    Senator Hatch. Mr. Chairman, I have got to run to the 
floor. Could I----
    Chairman Blumenthal. Absolutely.
    Senator Hatch. Mr. de Planque, I appreciate you being here, 
appreciate all of you being here, and I am sorry that I have to 
leave, especially in this particular case, because we 
appreciate all you do.
    Chairman Blumenthal. Thank you. Thank you, Senator Hatch, 
for being here. I know that you have a busy afternoon.
    We are going to be here for a while, and I hope that I can 
continue some of the questions with you, Mr. de Planque, 
because also in your written testimony you make some very 
important points about loopholes in the current law.
    But let me go back to the regular order, so to speak, going 
from your right to left, and ask each of you to make whatever 
opening remarks you may have, beginning with Mr. Odom. Thank 
you again for your service.

 STATEMENT OF JOHN S. ODOM, JR., COLONEL, USAF JAGC, RETIRED, 
            JONES & ODOM, LLP, SHREVEPORT, LOUISIANA

    Colonel Odom. Thank you, Mr. Chairman. As we say down home, 
it is just us chickens now, so let me go one on one with you, 
if I could. My name is John Odom. I am an attorney from 
Shreveport, Louisiana, and for all of my adult life, I have 
been a JAG in the Air Force practicing law. I was a judge 
advocate for about 35 years, and I have continued with a 
practice that primarily relates to representing servicemembers 
in various types of actions. My area is really the 
Servicemembers Civil Relief Act. I am very familiar with the 
Act. I have been privileged to work with a number of staff and 
members and passed amendments to the Act, and I think, Mr. 
Chairman, that your initial remarks really sort of reflected 
exactly what I tried to convey to the Committee in my written 
remarks.
    I would like to give you a very short quote from one of my 
heroes, General George Marshall, who said, ``We are going to 
take care of the troops first, last, and all the time.'' And 
that is really what I think the SCRA does. It is a fantastic 
statute. Its breadth is breathtaking for those of us who work 
with it every day.
    After the education and policy efforts of Colonel Kantwill 
and the Office of Legal Policy have gone on, and after the 
retail work of Dwain Alexander and all of the thousands of 
legal assistance attorneys that represent all four branches of 
the service, after their efforts of persuasion have been 
ineffective, they run out of airspeed and altitude, and we 
would say in the Air Force, and along I come. It is time to sue 
somebody, and that is what I do for a living. I am really happy 
to do it, too. My clients are always on the side of the angels, 
so it is a good thing. Just give me a jury, Senator Blumenthal, 
just give me a jury and let me work on that a little bit.
    Chairman Blumenthal. There are days when I wish we had a 
jury instead of the process we have here.
    [Laughter.]
    Colonel Odom. Well, I will make my opening statement in 
less than another 2 minutes then.
    Let me suggest, though, that with every great piece of 
legislation, every once in a while it is time to pull it out 
and dust it off and look and see if the people that are trying 
to get around it are doing a better job than the people who are 
trying to enforce it. And so it is with the SCRA.
    I give this briefing all over the country, and I have got 
to quit calling it ``the new Act,'' because it was enacted in 
2003. Okay, it is 11 years later. It is no longer ``the new 
Act.''
    But let me just make some nuts-and-bolts suggestions to 
you, sir, on how a very good Act could be tweaked in a 
prospective manner at no cost to the Government and make it 
ever more effective for the enforcement of our servicemembers' 
rights.
    A lot of the points that I am going to address very, very 
briefly--and they are covered at length in my written 
statement--you cosponsored Senator Sanders' bill that had 
almost every one of--I keep a wish list of what I would like to 
see, and I am pleased to tell you that eight of the ten things 
that I suggested made it into a bill introduced by Senator 
Rockefeller, and then that got pulled out and pulled in Senator 
Sanders' overarching bill. Unfortunately you know where that 
one went, but there is a possibility that we can get some 
resurrection on that.
    Let me give you just some real nuts and bolts. There is a 
default judgment provision that says that creditors can only 
take default judgments against servicemembers in strict 
accordance with the Act. Nobody ever does it right. At a very 
minimum, the Act ought to say that the creditor must certify 
that they have done a due diligence search to see whether or 
not the defendant is or is not in the military. It takes about 
15 seconds on the website of the Defense Manpower Data Center. 
It is available to the public. It is probably the most 
effective governmental agency I have ever worked with. They are 
fantastic in the database management that they do. Everybody 
can go back and find out from 1983 until the present, give a 
specific date, and in 15 seconds you can know whether or not 
the person was or was not on active duty on that date. So 
requiring at a bare minimum a DMDC SCRA database search seems 
to be sort of a no-brainer.
    Then as hard as this may be to believe, I just finished 
settling a case in Florida against a major national bank, who 
must remain unnamed because of the Compton-Shelley Clause--but 
they do know how to write large checks. I was pleased about 
that. But the bank's counsel, when I pointed out to them the 
illegal foreclosure that they had done through a default 
judgment that did not follow the statute, he suggested that 
even though his client, the bank, had in their records the 
knowledge that the defendant was on active duty with the Navy 
and even had an email address for the person, that they had no 
obligation to share that information with the attorney 
appointed to represent the absent servicemember, and that 
attorney filed an answer with the court that said we do not 
know if the person is alive or dead, we do not know whether 
they are in the military, but we see no defense to the action; 
whereupon, a default judgment was taken. The foreclosure took 
place. The bank bought the house for $100, and then the 
Department of Veterans Affairs paid off on the loan because it 
was a VA-guaranteed loan. There needs to be a really easy fix 
to default judgments.
    There was a drafting error in 2005 when a protection was 
added to Section 305 about how you go about canceling a lease. 
There was a drafting error. They put the definition of 
``military orders'' in Section 305. It really needed to go in 
the definitions section. All we need is to take it out of 305 
and put it in the definitions section so that it will apply to 
the entire Act.
    The term ``permanent change of station'' is used in Section 
305. If you get permanent change of station orders or what we 
call PCS orders to move to another base, you can terminate your 
lease. Well, permanent change of station is defined in the 
joint Federal travel regs to include separation and retirement 
moves. You try to get an apartment manager that when you are 
separating, it is a PCS move and, therefore, you have the right 
to cancel your lease, you cannot do it. All we need to do is 
define ``permanent change of station.'' It is a fairly simple 
thing.
    You ought to be able to refinance a pre-service obligation, 
either a student loan or a mortgage, to get lower interest 
rates without converting that obligation from a pre-service 
obligation to an obligation incurred during service, because if 
you do that, you would lose all your SCRA protections. These 
are really, really very small things.
    One more point. There is a section in the SCRA, Section 
602, that says the Secretary of the service concerned will 
issue certificates of service, which will be prima facie 
evidence of the active duty status of an individual. They do 
not do that. That is what the DMDC SCRA website does. You could 
not find a Secretary of the Army or Secretary of the Air Force 
or Secretary of the Navy or whatever, you cannot find them--
they do not understand that exists. So that is a section that 
needs to be simply overhauled where technology has outstripped 
the legislation.
    One more point, and I know I am over my time, but I 
appreciate your indulgence. Mr. Alexander testified at some 
length about pre-dispute mandatory arbitration clauses. If 
Congress in the SCRA and the real protective provisions in 
Title III provided that--it does not say you cannot foreclose. 
It does not say you cannot evict. It does not say you cannot 
repossess. It says you cannot do those actions except with a 
valid court order. Congress has already understood the 
importance of interposing a neutral and detached judge between 
Big Bank and Sergeant Snuffy. Why would Congress ever want to 
allow Big Bank to require Sergeant Snuffy to sign away his or 
her rights to be protected by that neutral and detached 
magistrate?
    If after the event occurs both parties with their eyes open 
say, ``We agree we ought to submit this to arbitration,'' as 
opposed to litigation, that is a different topic. That is fine, 
if you go into it knowing it. But if a 19-year-old signs a 
credit card agreement before he has any idea that he is ever 
going to be protected by the SCRA, then when he is 23 he goes 
on active duty, and then when he is 25 he has an SCRA-protected 
action that would otherwise be capable of taking to court and 
the credit card company says, ``So sorry, partner, back when 
you were 19 you waived all of those rights because you signed 
this little piece of paper''--in the 2-point type that you can 
barely see. So I think that could be fixed.
    And, by the way, that was in both Senator Rockefeller's 
bill and Senator Sanders' bill.
    The last point. I do some USERRA practice. The same 
arguments about pre-dispute mandatory arbitration clauses that 
apply to SCRA would apply to USERRA, but there is an extra 
kick. There is a point at which USERRA and SCRA overlap. Under 
SCRA, if an individual is in a court proceeding and he or she 
is unable to get to court because of military duties, they can 
demand a mandatory stay of the proceedings, and it has to be 
granted if they follow the statute properly. That provision 
would not apply to arbitrators. The arbitrator could schedule 
the arbitration while Lieutenant Savage was down range fixing 
airplanes in Djibouti, and it would go on because he could not 
stop it.
    So there is an interaction between USERRA and SCRA, and as 
far as the arbitration provision is concerned, I think that it 
should be limited to post-dispute--in other words, no pre-
dispute mandatory arbitration.
    I thank you for your attention. I will certainly answer any 
questions if you have any, sir.
    [The prepared statement of Colonel Odom appears as a 
submission for the record.]
    Chairman Blumenthal. Thank you very much, Mr. Odom, and 
also thank you for being here and for your service after your 
military service as well.
    General Davis.

 STATEMENT OF MAJOR GENERAL ANDREW DAVIS, EXECUTIVE DIRECTOR, 
RESERVE OFFICERS ASSOCIATION OF THE UNITED STATES, WASHINGTON, 
                               DC

    General Davis. Chairman Blumenthal--also a Marine.
    Captain Alexander. Thank you.
    General Davis. The Reserve Officers Association thanks you 
for the invitation to appear and give testimony today. I am 
also authorized to speak on behalf of the Reserve Enlisted 
Association.
    Although contingency operations in Afghanistan are winding 
down, there are still more than 40,000 Reserve and Guard 
members who are deployed worldwide of the 1.1 million men and 
women in the Reserve and Guard. Many outstanding citizen 
soldiers, sailors, airmen, Marines, and Coast Guardsmen have 
put their civilian careers on hold while they serve our country 
in harm's way. They share the same risks with their 
counterparts on the active components on the battlefield, but 
do not always have assurances of a job when they return home.
    While laws exist to provide re-employment and employment 
protection, many Reserve and Guard members had to seek private 
representation when the Department of Labor or the Department 
of Justice failed to address their cases.
    Just last week, we passed the 894,000 mark for the number 
of Reserve and Guard servicemembers who have been activated 
since 9/11. More than 336,000 of them have been mobilized two 
or more times. It is important, therefore, that we do not 
squander this valuable resource of experience, nor ignore the 
protections that they are entitled to because of their selfless 
service to our country.
    Thirty percent of those who served in Iraq or Afghanistan 
are Reserve or Guard veterans, according to the Department of 
Labor. The dual status of veteran and serving members 
complicates the employment of Reserve and Guard members 
returning from mobilization. They face returning to communities 
that do not have the same support structure that is available 
if they were on or near military bases. High numbers of them 
have been unable to find re-employment during this war and the 
economic recession. Some Army National Guard units returned 
with unemployment levels over 35 percent.
    ROA and REA fear that the unemployment rate is so high 
because employers are shying away from hiring potential 
employees who are serving in the Reserve components. We call 
this ``stealth discrimination,'' and because of employer 
concerns about reactivation by an operational Reserve, 
unemployment for 18- to 19-year-old Reserve and Guard members 
is nearly triple the unemployment rate for non-affiliated 
veterans. Bureau of Labor Statistics reports that in February, 
unemployment has risen back to 16.6 percent of veterans between 
18 to 24 years old and has climbed to 18.8 percent of veterans 
between 25 and 29.
    The 18- to 24-year-old age group and the 25- to 29-year-old 
group are made up in large part of the Reserve and Guard. The 
overall veteran unemployment rate was just 6.3 percent.
    Higher unemployment rates for younger Reserve and Guard 
members provides silent testimony that stealth discrimination 
remains. Smaller businesses can ill afford to lose key people 
and remain productive. They may congratulate a Reserve Force 
applicant on his or her military service and then simply fail 
to follow up, putting the resume into the circular file, 
although such discrimination is clearly unlawful under USERRA.
    Three surveys show that between 60 to 70 percent of 
employers will not hire new employees who are affiliated with 
the Reserve and Guard, but this is hard to prove unless the 
employer is naive enough to verbalize his or her prejudice--
although there are some. Both DOD's ESGR and Department of 
Labor fall short at helping the number of Reserve and Guard 
members facing employment challenges. Where once ESGR counseled 
employers and employees about USERRA, now the weight falls upon 
the shoulders of the accuser (employee) to generate the 
complaint against the employer as ESGR remains neutral. If a 
case is referred to DOL from ESGR, the VETS Office is supposed 
to complete the review and take action within 90 days but 
rarely does. The results of the investigation are shared with 
the affected Reservist who is briefed on the choice he or she 
has. DOJ reviews the cases, but does not brief the complainant 
about why a case may be turned down. As most Reserve Force 
members work for small businesses or local governments, they 
rarely have Federal representation.
    In fiscal year 2012, VETS referred 111 cases to the 
Department of Justice. DOJ filed just nine USERRA complaints of 
that 111 in that same year. Unfortunately, the number of cases 
supported by Federal agencies does not reflect the needed 
support of Reserve and National Guard members. Federal emphasis 
has shifted from representation to education, which does not 
help individuals facing employment or re-employment problems. 
While moral suasion is importance, it does not always reach the 
middle managers where the problems occur, even in big 
corporations.
    ROA's pro bono Servicemembers Law Center is receiving more 
than 800 calls a month on average, about half of those related 
to employment issues. ROA would like to share our garnered 
knowledge with the Committee as we see trends and problems 
facing our servicemembers. Leading the list is USERRA 
enforcement.
    Thank you, and I stand by for your questions.
    [The prepared statement of General Davis appears as a 
submission for the record.]
    Chairman Blumenthal. Thank you, General. I am going to 
follow up on some of those really excellent points. I 
appreciate your talking about discrimination against our 
Reserve and against veterans.
    Lieutenant Savage.

        STATEMENT OF LIEUTENANT KENNETH ``GENE'' SAVAGE,
             U.S. NAVAL RESERVE, MEMPHIS, TENNESSEE

    Lieutenant Savage. Good afternoon, Mr. Chairman and 
distinguished Members of the Committee. I would like to first 
thank the Committee for the opportunity to share my story here 
today.
    My name is Ken Savage, but my friends and family call me 
``Gene.'' I currently live in Memphis, Tennessee, with my wife, 
Michelle, of 10 years. I have a son, Quentin, and a 
stepdaughter, Kathryn. I served on active duty in the enlisted 
ranks of the Navy for 9 years, and I am currently serving in 
the Navy Reserves as a Lieutenant with VR-54 in New Orleans, 
Louisiana. I am proud to tell you I have served our country for 
over 24 years.
    In addition to my Naval service, I also had a promising 
career with FedEx Express as senior aircraft maintenance 
technician until I spoke out about FedEx's discrimination 
against servicemembers and I was fired as a result.
    I first discovered in August of 2004 that FedEx made a 
policy change that punished Guardsmen and Reservists who were 
serving on military duty for less than 30 days, which is the 
most common type of service. Under this policy change, if we 
were not available for overtime work because we were serving 
our country, we were charged with a penalty that kept us from 
being able to take overtime opportunities upon returning to 
work. This hurt FedEx's military families financially.
    In May of 2007, FedEx's unjust treatment towards Guardsmen 
and Reservists was illustrated again with a policy change that 
deprived us of employee benefits, including health care, when 
we were on military service.
    What is even more disheartening is that FedEx knew as far 
back as 2006 it had an issue with properly crediting 
servicemembers' retirement accounts.
    In March of 2008, fellow servicemembers and I publicly 
expressed our concerns over FedEx's new retirement plan. FedEx 
assures us that its new system would properly credit our 
retirement accounts while on military duty. But in June of 
2012, I noticed discrepancies streaming from 2001 in my own 
retirement account. I expressed my concerns to the benefits 
department, but to no avail. Rather than fix the problem, FedEx 
sent me bouncing from one department representative to another. 
Two months later, I was fired.
    I filed a complaint with DOL VETS which investigated and 
found that my case was meritorious and that FedEx violated 
multiple parts of USERRA. Nonetheless, FedEx refused to 
reinstate my employment and reimburse me for warranted back 
pay. I consulted with Captain Sam Wright of the Reserve 
Officers Association, who gave me invaluable advice.
    I was fortunate that a former Navy SEAL, now attorney, Joe 
Napiltonia, agreed to take my case on a contingency fee basis 
and front all of the costs of the litigation, despite the fact 
that the statute does not guarantee that he will even be 
compensated if we prevail.
    You are probably thinking why don't I just go get another 
job, I have all this experience. The short answer is 
professionally, if I obtain a job with one of the big air 
carriers, I would have to start my career all over again. When 
I started at FedEx, I worked the graveyard shift for 
approximately 9 years before I earned enough seniority to 
finally obtain a daytime shift where I could spend quality time 
with my family.
    On a personal note, because of my unwarranted termination, 
I have been in such financial straits that my wife and I were 
forced to sell personal and family belongings, including the 
family car, to make ends meet. Ten months after my termination, 
we were forced to short-sell our home of almost 10 years, which 
in turn has negatively impacted both of our credit. If FedEx 
had reinstated me with back pay pursuant to DOL VETS' findings, 
this would not have happened.
    The hardship my family has encountered motivated me to see 
that this does not happen to other servicemembers. I felt it 
was my duty to speak out on behalf of all servicemembers who 
face discrimination because of their military service.
    This does not have to be the end of my story, though. It 
has become clear to me that certain legislative actions can and 
must be taken to help protect servicemembers, small business 
consumers who should all have the same access to the justice 
system as corporations like FedEx. If corporations like FedEx 
are not held accountable, everyone's financial security will be 
at risk. My fight to hold FedEx accountable continues in 
Federal court.
    In speaking with you, I hope I have been able to shed some 
light on just how critically important this issue is 
nationwide. Theodore Roosevelt said it best when he said, ``A 
man who is good enough to shed his blood for his country is 
good enough to be given a square deal afterwards.''
    Please act swiftly and address these issues and know that I 
look forward to engaging in a meaningful conversation with the 
Committee Members today. Thank you so much for your time and 
consideration.
    [The prepared statement of Lieutenant Savage appears as a 
submission for the record.]
    Chairman Blumenthal. Thank you very much. Thank you for 
your courage in being here today and telling your story, which 
I think does shed a great deal of light on the issues and 
problems that bring us here. And I would like to begin with a 
few questions to you that may elicit some additional facts, and 
the other witnesses may wish to comment on it.
    First of all, I understand that your wife is a patrol 
officer in the Collierville Police Department and has been for 
18 years.
    Lieutenant Savage. Yes, sir.
    Chairman Blumenthal. So I thank her for her service as 
well.
    Lieutenant Savage. I will pass it on.
    Chairman Blumenthal. And I understand also that because of 
your family obligations, you cannot just travel anywhere in the 
United States to get a job. You are tied to the Memphis area 
because of your son's schooling requirements. Is that correct?
    Lieutenant Savage. Yes, sir.
    Chairman Blumenthal. Which I think happens to a lot of 
folks. They have ties to their communities. They cannot just 
move anywhere in the country to practice their skills. And you 
certainly have a very useful and important skill, and I can 
understand that you do not want to begin in the graveyard 
shift. You want the status and seniority that you are entitled 
to receive, and that is one of the reasons that brings you to 
Federal court. And your action is currently pending against 
FedEx?
    Lieutenant Savage. Yes, sir.
    Chairman Blumenthal. By the way, is your attorney here 
today? Thank you for your service to our Navy and also thank 
you for taking this case.
    Mr. Napiltonia. Thank you, Senator.
    Let me ask you, I understand, going by your written 
testimony, that FedEx actually originally reinstated you and 
then fired you again. Is that correct?
    Lieutenant Savage. Yes, sir. During the course of the VETS 
DOL investigation, for reasons unannounced to me, they hired me 
back and 4 days later upheld the termination and fired me 
again.
    Chairman Blumenthal. And did they give you a reason for, 
you know--I know that----
    Lieutenant Savage. My VETS DOL investigator, she did not 
really tell me a reason. It was a major surprise to her. She 
was asking me to get figures together for back pay, and like I 
say, 4 days later they terminated my short-lived employment 
again.
    Chairman Blumenthal. So they gave you no reason, they just 
showed you the door?
    Lieutenant Savage. Yes, sir. I did not even really return 
to work.
    Chairman Blumenthal. And did they make any offers to you of 
coming back under other circumstances? And, by the way, if you 
want at any time during my questions to ask your attorney--I 
know you have a case pending, so I do not want to ask you 
questions or elicit answers that may be harmful or work to your 
disadvantage in court. So feel free to ask your attorney. Did 
they make any offers to you about coming back?
    Lieutenant Savage. No, sir. In fact, I have the DOL 
investigative paper here, if you would like to have a copy. It 
was very clear in what DOL was expecting FedEx to do for 
violating these sections of USERRA. And we gave them 30 days to 
comply with the written investigative conclusion, and it was 
not until I told DOL that I was going to refer my case to the 
Department of Justice, they sent FedEx a letter to that effect, 
and then FedEx came back and said that ``we would like to just 
mediate this retirement issue with Mr. Savage.'' But there was 
no word of reinstatement, missed income, benefits, no, sir.
    Chairman Blumenthal. Do you have any views as to why FedEx 
did not comply after the Labor Department told them, in effect, 
that they were breaking the law?
    Lieutenant Savage. I would only have to speculate and say 
that, you know, FedEx is a huge employer in the Memphis area, 
and they have thousands of people in their employ. So to me, I 
was probably just another number, and they did not feel it 
necessary to engage in this type of enforcement.
    I know from working in the mechanic field, if they get a 
violation from the FAA, they straighten up real quick because 
they enforce monetarily. That I think needs to be under 
consideration.
    Chairman Blumenthal. And, you know, I know you are not a 
lawyer, but you have just articulated what I think is one of 
the major takeaways from your experience, that penalties for 
breaking the law may be insufficient to deter that kind of 
misconduct. Is that where you are going?
    Lieutenant Savage. Yes, sir. I think if these guys were 
held accountable for the actions that they did against me and 
DOL had more enforcement rights, there might have been a 
different outcome.
    Chairman Blumenthal. Let me turn to two really very 
distinguished and experienced lawyers, Mr. Odom and General 
Davis. Would you care to comment on either that observation or 
other facets of this case?
    Colonel Odom. General? The colonels always defer to the 
generals.
    Chairman Blumenthal. Well, I got no higher than sergeant. I 
am outranked by everyone.
    General Davis. And I am not a lawyer. I am not a lawyer, 
but I think that this case is really emblematic of employers' 
lack of incentive to follow the law. Unfortunately, we see a 
real gap in the ability of both DOJ and DOL to step up. As I 
said, when fewer than 10 percent of the cases are even 
addressed, that shows that, by example, the Government is not 
taking this as seriously as it should and the impact is on the 
Reservist servicemember. And as I said, often the impact is in 
a stealth mode. Most employers are not foolish enough to say, 
``I am not hiring you because you are a Reservist,'' or ``I am 
terminating you because of your Reserve service.'' Other means 
and other reasons are found. And, quite frankly, we are at ROA 
perplexed about what a legislative relief to that stealth 
discrimination might even be.
    There are employers--we have one case that we advocated and 
had to turn over to a civilian lawyer. A prominent cable 
television anchor person had a Reserve commitment. She was, no 
kidding, a hurricane hunter, and her Reserve service interfered 
with her cable television anchoring duties. And she was--her 
contract was terminated. That employer was not smart enough to 
say we are not doing this because you are Reservist. They 
actually said, ``Your Reserve duty is getting in the way of 
your job, and find another job.'' That was a year and a half 
ago, and we are still--she has still not reached resolution of 
her employment case.
    Colonel Odom. Senator, could I add just one thing to what 
General Davis has said? You have seen Lieutenant Savage. You 
have heard him say that as a result of the loss of that job he 
and his wife lost their house; they had to sell their car. He 
has been out of work for over 2 years. If any fair-minded 
person thinks that just paying Gene Savage his past lost wages 
even with a reinstatement is full compensation for the anguish, 
the heartbreak, the misery, the ruined credit and everything 
else that he and his wife have gone through, I do not think 
they can come to that conclusion.
    If USERRA never has an opportunity for the aggrieved 
servicemember to receive compensatory damages, everybody else 
in a Title VII case gets some type of compensatory damages for 
the emotional distress, the mental anguish, the grief, the 
loss, the disruption of their family lifestyle, that should be 
compensable even more so if the employment action was taken 
against someone as a result of their service to the country in 
the Guard or the Reserve or the Active Force.
    Chairman Blumenthal. How about punitive damages?
    Colonel Odom. Oh, I love that concept, Senator Blumenthal. 
What a great idea, sir. Well, yes, sir, I think that if--the 
punitive damage aspect of USERRA now is just double the past 
wages if you can prove that the action was taken intentionally. 
It is a rare case, it is a unicorn where they are dumb enough 
to leave a complete paper trail where you can show there is a 
memo from the CEO that says, ``Fire that man because he is gone 
too much for the Reserve.'' That does not exist very much.
    So I think that the full range of damages that are 
available in other types of--in 42 U.S.C. 1983, a civil rights 
violation, you are entitled to compensatory and punitive 
damages. Why shouldn't a servicemember be entitled to precisely 
that same type of relief?
    USERRA is much like SCRA. It is a great statute, but it is 
time to update it to reflect the realities of the employment 
workplace.
    Chairman Blumenthal. And to provide the incentive for 
attorneys to take these cases.
    Colonel Odom. And disincentives for employers to violate 
the Act in the first place.
    Chairman Blumenthal. Right.
    Colonel Odom. If they know that their main--the bottom line 
to them, sir, is ``I have got to retake this kid and I have got 
to pay him a couple years in past due wages,'' sir, that is a 
rounding error. That is a rounding error to a big major Fortune 
500 corporation. But if they knew that if Gene Savage's very 
competent attorney could get to a jury and talk to them about 
the damage to the Savage household, that would probably make 
them much more inclined to, ``Well, let us talk about this, 
maybe we can resolve this quickly and get you back to work.''
    Chairman Blumenthal. Thank you.
    Let me go back to General Davis, and I did not mean to be 
disparaging by incorrectly referring to you as an attorney.
    [Laughter.]
    Chairman Blumenthal. You are distinguished, but not as an 
attorney. And apologies to Mr. Odom. Only a fellow member of 
the bar could make that joke.
    What about the Department of Justice? Does it need 
additional authority? We have been talking about private 
enforcement. Should the Department of Justice have additional 
authority to enforce USERRA cases?
    General Davis. Thank you, Senator, and in my civilian 
career of 35 years, I was actually a newspaper reporter, 
editor, and publisher, so I am not sure which is more 
distinguished.
    Colonel Odom. I will turn my mic off now.
    General Davis. If the Department of Justice were inclined 
and had the resources to take up these cases, I think that that 
would be a marvelous first step. I think it is--while a worthy 
representation by attorneys like Mr. Odom to have the 
Government actually take its prosecutorial responsibilities 
seriously would be a terrific cudgel in giving power to the 
USERRA law, unfortunately that is not the case. And we at ROA 
have a great poster child of that. Our elected national 
president was a contractor who was on a contract to Department 
of Homeland Security. He was activated, mobilized, and deployed 
to Iraq, and when he returned, it turned out that Homeland 
Security preferred the replacement contractor that had taken 
his job. And his employer did not want to jeopardize the 
contract, so he was let go.
    It seems like a pretty clear-cut case of violation of 
USERRA and discrimination, both by the contractor and by the 
Department of Homeland Security. The Department of Justice 
would not take up the case even though the recommendation by 
Labor was that they do so.
    Thankfully, the Reservist ultimately prevailed against both 
the Department of Homeland Security and the contractor, but it 
took private representation when all it would have taken was 
Justice to weigh in earlier on in the case.
    Chairman Blumenthal. Do you have any views, Mr. Odom, on 
the involvement of DOJ in these cases?
    Colonel Odom. I can give you a specific example. A few 
years back, Captain Sam Wright and I--I had been mobilized. I 
was back on active duty. We had a Reservist in the State of 
Alabama, which had a sovereign immunity issue. The Reservist 
was employed by one of the State universities in the State of 
Alabama, and Captain Wright and I were attempting to assist him 
in resolving a USERRA claim. He came back from the war. They 
did not rehire him.
    Because of the sovereign immunity and Eleventh Amendment 
problems, the only entity that could sue on behalf of this 
Reservist was the United States Attorney for the Middle 
District of Alabama, as I recall, where it was located. We 
simply could not get that guy to take the case. It was very 
clear. And this individual had no right of action in State or 
Federal court because of the Eleventh Amendment and the way the 
Alabama Constitution reads. We could not get the local U.S. 
Attorney.
    Now, subsequent to that time, the Department of Justice has 
established a USERRA Enforcement Division. I cannot stress to 
you enough the importance of when an employer gets a letter 
from Big Justice. I hate to admit this, Senator, but it is 
different than when they get a letter from John Odom. It really 
has a different impact on them.
    And I would also, just to kind of come full circle, I would 
point out to you that when private counsel engages in a USERRA 
action, if that action goes to an arbitrator, we do not have 
the Federal Rules of Civil Procedure at our back to do the 
appropriate discovery that would be necessary to flesh out a 
case like Gene Savage's case, which requires a lot of data 
searching to find out and resolve all those pension issues and 
especially if there are other Reservists that have had similar 
things. You have got to have the Federal Rules of Civil 
Procedure at your back to compel discovery, and that is not 
available in an arbitration.
    I did not mean to skip across the streams, but I thought 
that was an appropriate point to emphasize what were talking 
about, pre-dispute mandatory arbitration.
    Chairman Blumenthal. Well, I think those comments by both 
of you are very well taken, and both the authority and the 
resources available to Justice in these cases ought to be 
strengthened and enhanced.
    You know, I have looked at the letter that is dated March 
22, 2013, in your case, Lieutenant Savage, and it is striking 
in the unequivocal conclusion--I am quoting just one part of 
it: ``Based on the facts as determined in our investigation and 
the application of the law to the facts, it is VETS' position 
that Mr. Savage's allegations are meritorious. Specifically, we 
find that FedEx is not in compliance with''--and it lists the 
statute. You know, I think that enforcement by the United 
States Department of Justice in that kind of case would be 
absolutely appropriate. And an increase in the remedies that 
are available to plaintiffs like yourself both to deter 
misconduct and to provide for fairer compensation for the 
losses just described by Mr. Odom and yourself are absolutely 
appropriate as well.
    Lieutenant Savage. Sir, if I did not mention before, I did 
refer my case to the Department of Justice Civil Rights 
Division. That is who deals with these type issues. I was 
denied, and with really no concrete reason as to why. And so 
without the attorneys like Joe and Mr. Odom, I would have been 
dead in the water. There is not a lot of attorneys out there to 
take these cases. I am very fortunate to have these guys here 
doing this type of work.
    Chairman Blumenthal. Well, when I talk about the Department 
of Justice being strengthened in its authority, it may also 
need greater encouragement to take these cases and use both its 
existing authority and any new authority that it is given.
    Mr. de Planque, you have been very patient and very helpful 
in response to Senator Hatch's questions, and I do have a 
couple of inquiries based on your written testimony. I notice 
that you refer to a couple of the same gaps or loopholes in the 
law that I think General Davis may have mentioned regarding the 
refinancing of student loans and also the refinancing of 
mortgages. And you touch upon the loss of SCRA protections 
against exorbitant interest rates in both those circumstances. 
In other words, if a student loan is refinanced, the legal 
protections no longer apply. The same is true of refinancing of 
mortgages or home loans. And I wonder whether--you may not be 
authorized to say it, but whether the American Legion would 
support a legislative effort to fill those gaps and reform the 
law?
    Mr. de Planque. Well, you know, the American Legion, we are 
a resolution-based organization. We are grass roots. We take 
our mandate for advocacy from what our members pass up. And the 
loan specifically is a little bit outside of my area of 
expertise, but I do have some colleagues who are very sharp on 
that. So I would be happy to, for the record, take that back, 
compare it to that, and get you an answer very quickly as to 
how our resolutions address that specific provision and 
certainly continue to work with you on that.
    [The information appears as a submission for the record.]
    Chairman Blumenthal. And I think it was Mr. Odom who 
mentioned this gap, and it was the American Legion in their 
testimony before the VA Committee that spoke about it. So I 
would appreciate any additional information you may have on it.
    And I appreciate your comments on the backlog in the 
remarks that you gave today. Senator Hatch has given me a 
couple of questions just to ask you for the record, if you do 
not mind responding. The Senate Working Group that he mentioned 
when he spoke to you issued a report a week or two ago, and the 
report reveals data about the numbers of claims and the rate at 
which they are processed. But it also says--and here is the 
quote: ``Since at least 1993, the VA has underperformed in its 
duties to provide timely and accurate disability compensation 
claims for veterans. The VA continues to see the backlog rise 
every few years.''
    Do you agree with that assessment that the problem has 
persisted and even growth for more than two decades? And the 
second part of his question is: What do you think is the 
primary reason that this has been such an intractable problem 
for so long?
    Mr. de Planque. Well, first of all, I wanted to address 
something you said earlier when you were discussing your 
amendment, which we are aware of, to kind of hold VA and DOD's 
feet to the fire, and I wanted to thank you for that amendment 
and your commitment on that.
    Second, as to the specific thing, yes, there has been a 
long trend, I would say even more than two decades. I have a 
poster in my office of the 1928 Poppy Days of the American 
Legion, which was a fundraising effort to help World War I 
veterans with their claims. And they certainly dealt with that. 
You know those stories of the compensation army that marched on 
DC.
    This has been a consistent problem as it has gone through. 
There are a variety of reasons for it. Some of the ones that 
are most critical right now, in some cases it was a planning 
issue, not expecting certainly as a section of the workforce 
was moving towards retirement and as the baby boomers reach 
that age and not necessarily having new people to replace it. 
There have been some plus-ups to VA personnel in the last 
several years, some big plus-ups to personnel. But the VA 
themselves will tell you that when a claims worker starts 
working on it, it can take him 2 years to get up to speed to 
really be doing regular production level stuff. And so even if 
you double the staff in an office--I looked at statistics at 
one point last year that said that in most VA regional offices, 
50 percent of the employees had been there less than 3 years. 
So you have some new employees who are being brought in to 
plus-up those levels, and so there is a learning curve for 
working with this. It is a little bit different than many 
adjudication systems, and so it takes some work. They need to 
have the time for training. They need to have--you know, as it 
stands right now, they are committed to 80 hours for training, 
but that sometimes gets sacrificed because you have to just 
keep doing production, you have to keep doing production. And 
we need to look at that.
    VA employees have been pushed very hard, and they have been 
going on 3 years of mandatory overtime now. You know, 3 months 
of mandatory overtime might be taking care of a problem. Three 
years, you might have to look at whether or not you have the 
right number of people working on that job.
    So both sides of the aisle have been very sympathetic to 
making sure and asking VA, ``Do you have the right resources 
you need to meet this task?'' They have consistently said that 
they have, but I think maybe some outside investigation and 
looking into that.
    I think it is important when you look at what a group like 
the American Legion is, a third-party group that goes in there, 
we are not there to dig the VA, we are not there to do any--but 
we are there to look from the outside with no other interest 
than let us make sure that we get this right. The working group 
is a great example, again, of a bipartisan effort that went to 
listen to what the veterans had to say.
    There are a number of things that go with that. VA did a 
better job of aggregating the errors that they get. Now that 
they are tracking everything electronically--they are operating 
on a fully electronic model now--they should easily be able to 
list what are our common errors: do we have problems rating 
back claims, do we have problems rating PTSD claims, do we need 
to develop our training based on that, if there was a better 
aggregated system of that. They are just starting to use these 
sort of 21st century all electronic office place tools. It just 
went completely online last year. As with any new IT project, 
that takes a while, and there are going to be bugs and so 
forth. But we need to hold them kind of to the fire to make 
sure that as you put these tools in, you are really 
transforming the way you are working.
    I mentioned at one point having electronic tools, it is not 
a cure-all. It is not something you can wave a wand and fix 
everything with. In some ways, if you just keep doing things 
the way you did it before, it just gives you the ability to 
make mistakes faster, and that is not helpful to anyone.
    What you want to do is really look at the process and how 
you do that, and, you know, VA is a large veterans employer. I 
think they are the largest veterans employer in the Federal 
Government. There are a lot of veterans who go to work every 
day at the VA and believe that their mission is, ``I am here to 
help veterans.'' But a lot of them are frustrated because the 
system demands pressure to just turn it over without 
necessarily paying attention to the detail to get it right.
    In the Army, as a sergeant, we used to teach our people, 
slow is smooth, smooth is fast. It is okay to sometimes take 
time, pay attention to detail. There is nothing wrong with just 
being a sergeant.
    So I think if they take some of those messages back, and 
most importantly, if they continue to talk to the stakeholders, 
the veteran service officers, the people who are sitting there 
working on the other side of the claims system every day, if 
they take that feedback, if we continue to have a two-way 
street of dialogue and do not look at each other as adversaries 
but look at each as people who were trying to work towards--the 
point of the VA is to serve not the veteran service groups, not 
the VA employees, but the point of the VA is to serve the 
veterans. And so if we can work together to make that happen, I 
think communication is key to that.
    Chairman Blumenthal. Thank you. I have just a couple more 
questions from Senator Hatch. One is based on Senator Heller's 
statement, which he submitted for today, which emphasizes that 
veterans have to be better informed and given the tools to 
understand the claims process and provide necessary 
information. I assume that you think that information is 
important and that we can improve that process.
    Mr. de Planque. Absolutely, and we did a lot of discussion 
with Senator Heller and Senator Casey's office, and I am 
working on those and getting the forms, getting the information 
to the veterans so that they can make an informed decision. You 
know, a veteran might have a choice between doing two types of 
hearings. If I order a book on Amazon, it is going to come up 
at the end, and it is going to say, ``Do you want it in 4 or 5 
days?'' It is free. ``Do you want it tomorrow?'' It is going to 
cost you 12 bucks to do that.
    If a veteran can look at that and say, you know, do you 
want an in-person hearing, that is going to take 12 to 15 
months. Do you want a video hearing? We can do that in 5 
months? Some veterans might think, you know, ``An in-person 
hearing is more important for me. I need to sit there right 
across the table and look that person in the eye. I am willing 
to wait a little bit longer to get that.'' They make that 
informed choice because they have information from the VA about 
what that is going to be. Whereas, other veterans would say, 
``You know what? Fastest option, I am going to go with that.'' 
But they are making the choice that--and in that way, that 
helps the VA reduce some of the load to then be able to process 
some of the other claims in time. It is a better sort of 
triage. By giving them more information, we are not limiting 
the veterans' choices. We are giving them the information so 
they can make the right choice.
    Chairman Blumenthal. You have talked about various numbers, 
we have been discussing various numbers, and as high as they 
are, they only cover a portion of the benefit claims. In other 
words, those numbers only cover disability claims and do not 
include various other categories of benefits. Do you have any 
assessment of the overall situation when those other areas are 
included?
    Mr. de Planque. Well, if you want to look at it, there are 
a number of other things that are out there. There are things 
that are called dependency claims. It could be a simple action. 
It is just adding--if I am a veteran and I have a husband or a 
wife, if I have a child that I want to add, because if I am 
disabled veteran above a certain percentage, I get additional 
compensation if I also have family members that I am 
supporting. Well, those dependency claims are only worth a 
tenth of a point in work credit. They receive a very low 
priority in the office because it takes work to do it and they 
do not really get a lot of credit in what they are graded on.
    Some offices, because of the pressure to get the production 
down, we have understood talking to some of the people in the 
offices that they have pushed those aside entirely. They are 
not working those dependency claims at all. Well, that is going 
to create another backlog.
    And keep in mind, for those veterans that are entitled to 
benefits based on having a spouse or based on having a number 
of children, if you are delaying that, you are delaying the 
benefit that they are getting. That is not fair.
    You also look at the appeals side of things, and this is 
something--so much of this attention is focused on the initial 
claims of veterans. We are not seeing the appeals side, both 
the decision review officers in the regional offices, but also 
the Board of Appeals and then eventually sometimes the Court of 
Appeals for Veterans' Claims.
    But when we look at a veteran who is taking maybe 400 days 
to get an initial claim decided, maybe a year or two to get an 
initial claim decided, once that claim goes into appeals status 
and goes up to the Board of Appeals, you can be looking at 4, 6 
years or longer. I mean, it is a massive increase in time, 
which is one of the reasons that we have always stressed 
working on getting it right the first time so the veteran does 
not have to appeal it. Well, if they are rushing to make 
decisions on some of these things with some of the provisional 
decisions, that is a situation where now a veteran has to 
appeal that, and now they are stuck in a situation where they 
have an even longer wait. You know, you get through one line, 
and then you realize that there is an even longer line over 
here that you now have to go stand in. And that is unfortunate.
    We have recently had some conversations with both VA and 
some Members of the House and the Veterans' Affairs Committees 
of looking at ways--there were ways we improved some of the 
speed on initial claims with the fully developed claims 
process, possibly looking at things that may apply to that for 
the appeals process and see if there are things that--lessons 
that have been learned already in helping to slowly chip away 
at the backlog on the one side that are going to be helpful on 
the appeals side. And that is important because the appeal is 
going to be an issue. All of the attention is focused right now 
on the initial claims, but those appeals are out there. Those 
dependency claims are out there. Those death benefits claims 
and things like that, those are out there, and they are not 
necessarily counted in the numbers that people look at Monday 
morning.
    Chairman Blumenthal. Thank you.
    I have one more area of questioning that I would like to 
direct to both General Davis and Mr. Odom and Lieutenant Savage 
if he has any comments on it. And you alluded to it, General 
Davis, I think Mr. Odom as well, when you said that most 
employers are, in quotes, savvy enough to avoid leaving a trail 
of evidence to show intent or motivation when they 
discriminate. And, of course, under USERRA, liquidated damages 
depends on a defendant willfully violating the law. The proof 
of willfulness I would guess is one of your major hurdles, 
never having done one of these cases myself. But in your 
experience and opinion, does the standard need to be changed? 
Does the law need to be reformed in some way so that either a 
private plaintiff or even the Department of Justice, because it 
has to meet a similar kind of burden of proof, have to be 
changed in order to make the law more enforceable?
    Colonel Odom. Senator, I will tackle that one first. I 
think you are going to have a difficult time redefining the 
word ``intentional'' in the statute, but I would urge the 
Senator to remember that even if you are able to prove an 
intentional violation, all you do is double the past due wages, 
which is really not adequate compensation.
    I know this may be beyond the purview of what you really 
wanted to hear, but the way to put teeth in USERRA is to allow 
proof of compensatory and/or punitive damages.
    When the mortgage industry straightened up and started 
flying right was when the DOJ came after them. I can file 
individual suits until the cows come home, and I am a rounding 
error to them on one day's trade. DOJ comes after them, that 
gets their complete and undivided attention because they are 
nationally chartered and you hold their charter, and they are 
going to pay pretty much when DOJ says, ``You need to cough up 
some dollars.''
    And I do not mean to be anti-corporation. I have 
represented corporations throughout my legal practice and 
hope--before today's hearing, I had hoped to possibly do so 
after this hearing. But here is the reality: The potential for 
getting hit with a big damage award makes people act better. 
And if that is what we need to do to make the employer see the 
light, then that is where the law needs to be changed, as 
opposed to requiring proof of intentional damages, which does 
nothing more--you could leave intentionality in there and then 
say and if intentionality is proven, then in addition to double 
the wages, you are entitled to--you are liable for compensatory 
and/or punitive damages, plus a mandatory award of attorneys' 
fees. That is going to get big business' attention, not just 
saying you have got to rehire him. With all respect, sir, I 
think that is where the--it might be a tough battle, but that 
is where you would get real teeth into the statute.
    Chairman Blumenthal. Thank you.
    General Davis.
    General Davis. Thank you, Senator. I would like to defer 
that question to our expert, who is Captain Sam Wright, who was 
one of the co-authors of the USERRA Act, an expert more than I 
on this subject.
    Captain Wright. Thank you. I just wanted to bring up Staff 
Sergeant----
    Chairman Blumenthal. Just for the record, sir, if you could 
identify yourself.
    Captain Wright. Yes, I am Samuel F. Wright, and I am the 
Director of the Servicemembers Law Center for the Reserve 
Officers Association.
    Chairman Blumenthal. Welcome, and thank you for your 
service.
    Captain Wright. Thank you. And the case of Staff Sergeant 
Copeland in South Carolina, where he was re-employed, but the 
State of South Carolina Department of Corrections did not 
reinstate his health insurance, so he had to utilize the VA 
process, and that took--I am not talking about compensation. I 
am talking about medical care, and that took many months. And 
then when he finally was able to get a colonoscopy, it turned 
out he had colon cancer. You know, if they had complied with 
USERRA, it would have been discovered maybe a year earlier, and 
the chance of successful treatment would have been much better.
    That is not the kind of thing that under USERRA as 
currently enacted there is any relief for. You get compensation 
for the salary, wages, benefits, you know, maybe they would 
have to compensate what they would have paid for the health 
insurance, but not the damage to his life expectancy and his 
quality of life because of the delay in getting the medical 
care.
    Chairman Blumenthal. Thank you.
    Lieutenant Savage, if you have any further comment?
    Lieutenant Savage. Could Mr. Napiltonia----
    Chairman Blumenthal. Without objection.
    Colonel Odom. Senator, we now have General Davis surrounded 
on both sides by lawyers.
    Chairman Blumenthal. Yes, but he is a Marine.
    [Laughter.]
    Chairman Blumenthal. If you would identify yourself. You 
can turn on your microphone and identify yourself, please.
    Mr. Napiltonia. Thank you, Senator. Joe Napiltonia. I am an 
attorney representing Lieutenant Savage.
    What I will tell you is this: I just want to touch on what 
you said in your opening remarks about the damages. I think 
from a practitioner's standpoint, you are exactly correct. The 
damages are not adequate enough to deter bad behavior by 
companies. They are just not. And something akin to Title VII 
damages would be a good starting point. The question begs, as a 
veteran myself, why is it that sex discrimination and race 
discrimination claims are treated better or offered more 
remedies than a servicemember who is discriminated against? It 
just does not make sense to me. So that would be a good 
starting point.
    In regard to the willfulness standard, for the record I 
think something similar to the Fair Labor Standards Act would 
be appropriate. I can tell you this: Many, if not most, of the 
servicemembers I represent have jobs that are low-paying. They 
are blue-collar folks, men and women, working class, whose 
damages are rather low, and so there is no incentive for an 
employer to do the right thing. They look at their ultimate 
exposure, and so it is rare that they are willing to come to 
the table and broker a deal.
    I will tell you this, Senator: The only way oftentimes that 
I am able to negotiate a deal is through the threat of the 
attorneys' fee provision--which incidentally is not guaranteed. 
The statute says ``may'' and not ``shall,'' interestingly 
enough. But it is the threat of having to go through a trial, 
and you as an attorney understand how significant that would be 
in Federal court, a couple hundred thousands dollars to get 
through a trial and pre-trial motions. That is ultimately the 
deterrent. The problem is there are not enough attorneys like 
myself and Colonel Odom who are willing to invest our time 
without getting paid and the significant amount of out-of-
pocket costs to litigate these cases.
    And so I just wanted to thank you and say that I think that 
you have it correct. The damages are very inadequate, and they 
do not deter bad behavior.
    Chairman Blumenthal. Thank you. Thank you for being here 
today, and thank you for your representation of Lieutenant 
Savage. I want to thank all of the members of this panel, as 
well as the previous one, for, again, your service to our 
country and your service to the United States Senate in being 
here today.
    I am going to use the material that we have gathered today 
and what I hope we may be able to gather from you in subsequent 
questions that we may have for you in arming ourselves to seek 
some of the changes that have been described today in the 
disability claims system and most especially in USERRA and the 
Military Lending Act and other statutes that are supposed to 
offer better protection to our servicemen and -women and our 
veterans than they have right now. I know that you have served 
many individual men and women who have been victims of some of 
these abuses, and their stories really need to be told just 
like Lieutenant Savage's has been told today.
    And, in closing, let me just offer my thanks again to 
Lieutenant Savage for your courage in coming forward. You know, 
this hearing is not about FedEx; it is not about big 
corporations. It is about really the rule of law and honoring 
our servicemen and -women who honor us with their service, just 
as you have.
    I know that the Military Officers Association and a number 
of other organizations have submitted statements, and they will 
be made part of the record, as will all of your written 
testimony.
    [The statements appear as submissions for the record.]
    Chairman Blumenthal. I will be speaking out and doing so on 
the floor of the Senate and every opportunity I have to try to 
build momentum for the kinds of reforms that we have been 
discussing today. So once again, thank you for your service and 
for your help today.
    We are going to keep the record open in case any of my 
colleagues have questions for you that they want to submit, and 
you can respond in writing. And with that, this hearing is 
adjourned. Thank you.
    [Whereupon, at 5:08 p.m., the Subcommittee was adjourned.]
    [Additional material submitted for the record follows.]

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              Additional Material Submitted for the Record

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