Report of the Working Group on Protecting the Rights by nup32300


									                    American Bar Association Working Group on Protecting the Rights of Service Members

American Bar Association

Repor t of the
Wo r k i n g G ro u p o n
P ro t e c t i n g t h e R i g h t s o f
Service Members

                                                                    A Project of the ABA
                                                                    Standing Committee
                                                                   on Legal Assistance for
                                                                     Military Personnel


Acknowledgments                                                    3

Working Group Members                                              4

Member Biographies                                                 6

Executive Summary                                                  12

Prefatory Notes and Observations                                   18

Summary Reports

Decedent’s Affairs                                                 21

Education                                                          26

Expanded Legal Assistance Program (ELAP)                           32

Family Law                                                         35

Servicemembers Civil Relief Act                                    41

Taxation                                                           46

Uniformed Services Employment and Reemployment Rights Act          64

Voting Rights                                                      72

Miscellaneous State Laws, Regulations                              74

References                                                         82

Appendix CD-ROM                                             Back Cover
A c k n ow l e d g e m e n t s

                                                                                August 1, 2004
For it’s Tommy this, an’ Tommy that, an’ “Chuck him out, the brute!”
But it’s “Savior of ‘is country” when the guns begin to shoot;
An’ it’s Tommy this, an’ Tommy that, an’ everything you please;
An’ Tommy ain’t a bloomin’ fool – you bet that Tommy sees!

We can report that America is well beyond the conditions and circumstances in 19th century England
that gave rise to Rudyard Kipling’s lament in his poem, Tommy. Our active duty, reserve, and
National Guard service members are valued and respected citizens. The importance of their role as
front-line defenders of our country in the global war on terror is widely understood and appreciated.
However, they are not always treated fairly in our courts, the workplace, and other venues, where
they often experience unequal treatment and economic disadvantage. Accordingly, our report is
directed not only to the leadership and membership of the ABA, but to the governors, legislators,
judges, and other state and community leaders who are responsible for the protection and well being
of America’s warriors.
ABA President Dennis Archer recognized the inequities that our service members encounter in such
areas as family support, child custody, housing, tax law, and employment rights. He directed the
formation of our Working Group and the production of this report, which is the culmination of the
industry, talent, and expertise of many individuals and groups. His concern for military-related legal
issues provided a lens that focused many diffuse elements into a cohesive effort the results of which
will be of sustained and growing importance.
We owe special thanks to the lawyer-liaisons from the Armed Forces and Department of Defense
who gave generously of their time, experience, and wisdom. They continue the long tradition of
ABA-military cooperation. Specifically, we note the contributions of Mr. Nick Grasselli, U.S. Coast
Guard; Colonel (Select) Timothy Guiden, U.S. Air Force; Commander Jennifer Herold, Judge
Advocate General’s Corps, U.S. Navy; Mr. John Meixell, U.S. Army; Mr. Chris Rydelek, U.S. Marine
Corps; and Colonel Steve Strong, Department of Defense.
Our work would not have been possible without the support of the Judge Advocates General of the
Army, Navy, Air Force, and Coast Guard, the Staff Judge Advocate to the Commandant of the Marine
Corps, and many State Adjutants General. Hundreds of military legal assistance attorneys, both judge
advocates and government service lawyers, provided many of the ideas and recommendations
contained in this report. Military law related committees of many bar associations offered invaluable
insight into how state and local laws impact the everyday lives of service members and their families.
Very importantly, we take this opportunity to recognize the outstanding efforts of the Working
Group members and supporting staff, identified on pages 2-8 of this report.
Finally, and foremost, we express our gratitude to the men and women in uniform and their families
for whom this report was chartered. We share President Archer’s expectation that this initiative will
be the catalyst for a dynamic, comprehensive review by federal and state authorities of their laws,
regulations, court rules, practices, policies and procedures that impact (and too often adversely
affect) military personnel and their families.

David C. Hague                                             John S. Jenkins Jr.
Brigadier General                                          Rear Admiral
U.S. Marine Corps, Retired                                 U.S. Navy, Retired
Co-Chair                                                   Co-Chair

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The American Bar Association Working Group
on Protecting the Rights of Service Members

Co-Chairs                                             Government and Public Sector Lawyers Division

Brigadier General David C. Hague, USMC (Ret.)         Gary L. Anderson

Burke, Virginia                                       San Antonio, Texas

Rear Admiral John S. Jenkins, JAGC, USN (Ret.)        Section of Labor and Employment Law

Alexandria, Virginia                                  Captain Christopher T. Dong, USAFR
                                                      Ellicott City, Maryland

Standing Committee on Legal Assistance for Military
                                                      Section of Litigation
Commander Daniel K. Bean, JAGC, USNR
                                                      John H. Mathias, Jr.
Jacksonville, Florida
                                                      Chicago, Illinois

Major James Dockery, USAFR
                                                      Section of Real Property, Probate and Trust Law
San Antonio, Texas
                                                      Captain Kevin P. Flood, JAGC, USN (Ret.)

                                                      Jacksonville, Florida
Colonel Patricia F. Halsey-Munroe, USMCR (Ret.)

Alameda, California
                                                      Section of State and Local Government Law

                                                      Captain Dwight H. Merriam, JAGC, USNR (Ret.)
Section of Family Law
                                                      Hartford, Connecticut
Patricia E. Apy

Red Bank, New Jersey
                                                      Section of Taxation

                                                      Richard A. Shaw
Colonel Mark E. Sullivan, USAR (Ret.)                 San Diego, California

Raleigh, North Carolina

                                                      Tort Trial and Insurance Practice Section

General Practice, Solo and Small Firm Section         Lt. Colonel Fletcher D. Handley, Jr. USANG

Lt. Colonel Gregory M. Huckabee, USA (Ret.)           El Reno, Oklahoma

Vermillion, South Dakota

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                      The American Bar Association Working Group
                      on Protecting the Rights of Service Members

Young Lawyers Division                       Department of Defense Liaison

Lt. Commander Benes Aldana, USCG             Colonel Steven Strong, USA

Washington, DC                               Washington, DC

State Bar of Washington LAMP                 U.S. Air Force – Special Liaison

Kenyon E. Luce                               Colonel John S. Odom Jr., USAFR

Tacoma, Washington                           Shreveport, Louisiana

U.S. Army Legal Assistance Policy Division   Working Group Staff

John Meixell                                 Jane Nosbisch

Rosslyn, Virginia                            Chicago, Illinois

Chief of Legal Assistance - Coast Guard      Glenn Fischer—Staff Reporter

Nicholas Grasselli                           Chicago, Illinois

Arlington, Virginia

                                             Kenneth Goldsmith

Chief of Legal Assistance - Marine Corps     Washington, DC

Christopher B. Rydelek

Arlington, Virginia

Chief of Legal Assistance - Air Force

Colonel (Select) Timothy Guiden, USAF

Washington, DC

Chief of Legal Assistance - Navy

Commander Jennifer S. Herold, USN

Washington, DC

                                                                       Page 5
Member Biographies

Benes Aldana, U.S. Coast Guard                and Small Firm Section of the American
currently serves as a trial attorney in the   Bar Association.
Environmental Enforcement Section of
the U.S. Department of Justice. In his
previous assignments, LCDR Aldana             Patricia E. Apy is a partner in the law
served as trial counsel, appellate counsel,   firm of Paras, Apy & Reiss, practicing
deputy chief of the Coast Guard's Office      exclusively in the area of family law. She
of Environmental Law, and program             served from 1991 through August of
manager for the Coast Guard's Direct          2002 as the Chair of the International
Commission Lawyer Program. He also            Law and Procedure Committee of the
served as a deployed legal advisor in         Family Law Section of the ABA. In
support of Operation Enduring Freedom.        addition to serving as an instructor at the
His legal assistance experience includes      Naval Justice School and Army Judge
duties as a legal assistance attorney and     Advocate General School in
the program manager for the Coast             Charlottesville for advanced family law,
Guard's legal assistance program. He is
                                              she has provided onsite training to JAG
an active member in the ABA's Young
                                              and legal services attorneys at military
Lawyers Division; General Practice, Solo,
                                              facilities around the world.
& Small Firm Section; and Litigation
Section. He also serves on the ABA
President's Advisory Council on Diversity
                                              Daniel K. Bean, Judge Advocate
in the Profession.
                                              General’s Corps, U.S. Naval Reserve, is
                                              currently an associate with Holland &
                                              Knight, LLP in Jacksonville, Florida. He
Gary L. Anderson has been an
                                              spent 11 years on active duty as a surface
Assistant United States Attorney for the
                                              warfare officer and attorney. He is a
Western District of Texas since February
                                              member of the American Bar Association
of 1990. He previously served as
                                              and serves on the Standing Committee on
Regional Counsel for the State Bar of
                                              Legal Assistance for Military Personnel.
Texas following his retirement after
twenty four years as an Army Judge
Advocate officer. Mr. Anderson is
                                              James Dockery is a member of the
currently on the Council of the
                                              Corporate Legal Department for Clear
Government and Public and Public Sector
                                              Channel Communications, Inc. He serves
Lawyers Division, a member of the
                                              as Corporate Counsel and Director of
Standing Committee on Law in the
                                              Diversity. From 1987 to 1997, Mr.
Armed Forces, Chair of the
                                              Dockery served as a Judge Advocate for
Administrative and Government Law
                                              the United States Air Force. He is
Committee of the General Practice, Solo,
                                              currently a Major in the Air Force

Page 6
Member Biographies

Reserves. James is a member of the            Military Affairs Committee in developing
American Bar Association and serves on        rules and legislation in Florida that permit
the Standing Committee on Legal               military attorneys to appear in courts
Assistance for Military Personnel.            (ELAP) and that benefit servicemembers.
                                              In 1991 then Secretary of defense Dick
                                              Cheney awarded him the Secretary of
Christopher Todd Dong, Capt,                  Defense Outstanding Public Service Medal
USAFR, serves as Management Co-Chair          for his work with LAMP during Desert
of the Federal Service Labor and              Storm. Mr. Flood is a frequent lecturer at
Employment Law Committee of the               ABA CLE programs, and at all of the
ABA. In his civilian capacity, Capt Dong is   Armed Forces Judge Advocate schools.
an Assistant General Counsel with the         He retired from the military in 1998 with
Federal Bureau of Investigation. As a         38 years of combined active and reserve
reservist, he is currently assigned to the    service.
Air Force Central Labor Law Office in
Rosslyn, Virginia.
                                              Nicholas Grasselli serves in the Office
                                              of the Judge Advocate General for the
Kevin Patrick Flood (Captain, JAGC,           Coast Guard as the Chief of Legal and
USNR, Retired) is a consultant and            Defense Services. As such, he also serves
attorney in Jacksonville, Florida. From       as the Director of Legal Assistance. Prior
1997 to 2004 he was the regional              to being employed as a civilian employee,
director of the Navy’s legal assistance       he completed 21 years of military service.
program in the southeast United States,       He received his JD and LL.M. degrees
Puerto Rico, Guantanamo Bay, Cuba and         from the Georgetown University Law
the Caribbean. Prior to assuming this         Center and is admitted to practice law in
position in 1997 he was in the private        the Commonwealth of Virginia and the
general practice of law in New York and       District of Columbia.
Florida for 30 years. He is a past
president of the Judge Advocates
Association, past Chair of the Standing       Col. (S) Timothy Guiden is the Chief
Committee on Legal Assistance for             of the Air Force's Legal Assistance and
Military Personnel, past member of the        Preventive Law Division. He has served
Standing Committee on Delivery of Legal       in a various positions in Air Force and
Services, member of the Military Law          Joint Service Offices since his direct
Committees of the General Practice, Solo      appointment to active duty in January
and Small Firm and Family Law sections of     1987.
the ABA, and a member of the Florida
Family Law Inns of Court. He has been
instrumental through the Florida Bar

                                                             Page 7
Member Biographies

Brig. Gen. David C. Hague, USMC              National Guard in 1981 and was
(Retired) is Co-Chair of the Working         commissioned into the JAG Corps in
Group and previously chaired the ABA         1983. He is currently assigned as the
Standing Committee on Legal Assistance       Assistant State Judge Advocate and
for Military Personnel. He served in a       Military Judge.
variety of legal and other assignments in
                                             Commander Jennifer S. Herold is the
the Marine Corps from which he retired
                                             Navy Judge Advocate General's Division
as a brigadier general in 1998. He returns
                                             Head for legal assistance and Navy's
to active duty occasionally on special
                                             representative to the ABA LAMP
                                             committee. Commander Herold has
                                             served on active duty for 18 years and
                                             has served in various legal assistance
Patricia F. Halsey-Munroe, USMCR,
                                             billets including legal assistance officer and
(Retired), started her military service
                                             legal assistance instructor at the Naval
with a meritorious, regular commission in
                                             Justice School.
the USMC plus the "Molly Marine" and
leadership awards as she graduated The
Basic School, Quantico. For more than 25
                                             Gregory M. Huckabee is an Associate
years she practiced as a military, legal
                                             Professor of Business Law at the
assistance attorney serving on active duty
                                             University of South Dakota in Vermillion,
at Headquarters Marine Corps, where
                                             SD. He earlier served 27 years as an
she headed the Marine Corps’ Legal
                                             Army Judge Advocate and as Chair of the
Assistance Program and as the first female
                                             Dept. of Defense Soldiers’ and Sailors’
judge advocate in the 1st Marine Division.
                                             Civil Relief Act Task Force in the
                                             Pentagon from 1990-92. He also served
                                             on the faculty at the U.S. Military
Fletcher D. Handley, Jr., is liaison to
                                             Academy from 1980-83.
the Working Group from the Tort, Trial
and Insurance Practice Section (TIPS) of
the ABA and is also a member of the
                                             Rear Admiral John S. Jenkins Jr.,
ABA Standing Committee on Armed
                                             JAGC U.S. Navy (Retired) is Co-Chair of
Forces Law. He practices plaintiff’s
                                             the Working Group and the current chair
personal injury and domestic relations law
                                             of the ABA Standing Committee on Legal
in El Reno, Oklahoma. He began his
                                             Assistance for Military Personnel. He
military career as an Air Force ROTC
                                             served 28 years in the Navy and retired in
Cadet in 1966, and served on active duty
                                             1982 as the Judge Advocate General and
with U.S. Navy Patrol Squadron 11 as a P-
                                             is Senior Associate Dean Emeritus of
3 Orion aircrew member from 1969-
                                             Law, George Washington University Law
1972. He enlisted in the Oklahoma Army

Page 8
Member Biographies

School. He is a member of the ABA             rated as “undoubtedly one of the finest
House of Delegates.                           trial lawyers in the Navy today.”

Kenyon E. Luce specializes in elder law       John Meixell has been a part of the
and estate planning. He was a                 Army Legal Assistance Policy Division
prosecuting attorney for ten years, a         since 1996. He previously served in the
municipal judge for ten years, and served     Army Legal Assistance Policy Division
as a city attorney for seven years. In        from 1985-1987, responding to the legal
1998 and 2003 he received the ABA’s           assistance needs arising from the Gander
Legal Assistance to Military Personnel        Air Crash. He served in a variety of legal
Committee Distinguished Service Award.        assignments prior to retiring from the
In 2002, he was awarded the “Superior         Army Judge Advocate Generals Corps in
Civilian Service Award” medal from the        1996.
U.S. Navy and received in 2003 a
“Certificate of Appreciation for Patriotic
Civilian Service” from the Department of      Dwight H. Merriam, Captain, USNR
the Army. He is Chair of the Washington       (Ret.) graduated from the University of
State Bar Association “Legal Services to      Massachusetts at Amherst cum laude in
the Armed Forces” Committee.                  1968, and made three tours to Vietnam,
                                              totaling 17 months, before being ordered
                                              to the University of North Carolina Navy
John H. Mathias, Jr. is a partner in          ROTC Unit in June 1972. He was the
Jenner & Block’s Chicago office. He is a      Senior Advisor and taught undergraduate
veteran trial lawyer concentrating on         and graduate courses in the multi-
business litigation with particular           disciplinary curriculum, Defense
emphasis upon insurance coverage              Administration and Military Management.
litigation, class actions, directors and      In 1975 he resigned his regular
officers litigation, professional liability   commission and left active duty to attend
litigation, and intellectual property         Yale Law School from which he graduated
litigation. Mr. Mathias has been an active    in 1978. He has been in private practice
member of the American Bar                    the last 25 years with Robinson & Cole
Association’s Section of Litigation, where    LLP and is based in the firm’s Hartford
he has served on the Section’s leadership     office. He is a land use, environmental
Council. As trial defense counsel in the      and real estate lawyer, and continued on
U.S. Navy JAG Corps from 1973 to 1976,        in the reserves for 23 years after leaving
Mr. Mathias tried hundreds of court           active duty with a variety of assignments
martials in Long Beach, CA, San Diego,        as a Surface Warfare Officer.
CA and Jacksonville, FL. Upon his
discharge from the Navy, Mr. Mathias was

                                                             Page 9
Member Biographies

Col. John S. Odom, Jr., USAFR, is            Army, the Pentagon.
Chairman of the USERRA
Subcommittee. He lives and practices law
in Shreveport, Louisiana and is currently    Colonel Steven Strong, U.S. Army, is
the Senior Individual Mobilization           the DoD liaison to the Working Group
Augmentee to the Staff Judge Advocate,       and to the ABA Standing Committee on
Air Combat Command, Langley AFB VA.          Legal Assistance for Military Personnel. A
                                             member of the Judge Advocate General's
                                             Corps, he currently serves as the
Christopher B. Rydelek is the Head of        Director of Legal Policy in the Office of
the Legal Assistance Branch,                 the Under Secretary of Defense
Headquarters, U.S. Marine Corps. He is       (Personnel & Readiness).
responsible for advising the Staff Judge
Advocate to the Commandant of the
Marine Corps on all matters relating to      Mark E. Sullivan is a board-certified
the legal assistance program.                family law specialist who practices in
                                             Raleigh, North Carolina. He is a Fellow
Additionally, Mr. Rydelek is responsible
                                             of the American Academy of Matrimonial
for the operation of a "retail" legal
                                             Lawyers (AAML) and is the immediate
assistance office, servicing the
                                             past President of the North Carolina
Washington, DC military community.
                                             Chapter of the AAML as well as Chair of
                                             the Military Committee of the American
                                             Bar Association's Family Law Section. He
Richard A. Shaw, Chair of the
                                             previously served as Chairman of the
American Bar Association Section of
                                             ABA Standing Committee on Legal
Taxation, is a California Certified
                                             Assistance for Military Personnel (LAMP)
Taxation Law Specialist with a Master of
                                             and the Director of the military
Laws Degree in Taxation (New York
                                             committee of the North Carolina State
University). Mr. Shaw is past President of
                                             Bar. He is a retired Army Reserve
the American Bar Retirement
                                             Colonel and he was awarded the Legion
Association, a life fellow of the American
                                             of Merit for his work as “the Army's
Bar Foundation and Ex-officio Trustee of
                                             foremost expert in family law.”
the American Tax Policy Institute. He is
engaged in tax and business practice as
Chair of the Tax and Probate Practice
Group of Higgs, Fletcher & Mack, LLP,
San Diego, California. Mr. Shaw served as
a Captain in the Tax and Property Branch
Procurement Law Division, Office of the
Judge Advocate General, United States

Page 10
Executive Summary

  Background                                military could collaborate and continue to
                                            pursue these goals, as well as raise the
                                            level of awareness concerning the types
The genesis for the Working Group on        of everyday legal issues that threaten to
Protecting the Rights of Service Members    preoccupy our service members’ minds
was a roundtable discussion in July 2003    and distract them from their missions. By
that included Dennis Archer, then ABA       exposing the manifold legal problems our
President-Elect; Brigadier General David    service members face each day (the
Hague, USMC (Ret.) then Chair of the        solutions to which that many civilians take
ABA Standing Committee on Legal             for granted), perhaps we could gain some
Assistance for Military Personnel (ABA      ground against the hardships that mass
LAMP Committee); Rear Admiral John          mobilizations inevitably cause to those in
Jenkins, JAGC, USN (Ret.), incoming chair   uniform.
of the LAMP Committee; Rear Admiral
John Crowley, Chief Counsel and Judge
Advocate General, U.S. Coast Guard;         Out of that meeting developed a renewed
Rear Admiral Steven B. Kantrowitz,          sense of immediacy with respect to how
JAGC, Assistant Deputy Judge Advocate       the ABA approaches the everyday legal
General and Deputy Commander Naval          concerns of service members, and
Legal Service Command; Major General        determining how the ABA could take a
Jack Rives, Deputy Judge Advocate           leadership role in effecting change.
General, U.S. Air Force; Major General      President Archer asked the LAMP
Tom Romig, Judge Advocate General,          Committee to take on the task of
U.S. Army; Brigadier General Kevin          analyzing and recommending what legal
Sandkuhler, Staff Judge Advocate to the     protections may be needed to ease the
Commandant of the Marine Corps;             burden of our men and women in
General E. E. (Andy) Anderson (Ret.),       uniform, as they are deployed around the
Member, ABA Board of Governors.             globe to protect our freedom.

The ABA and the U.S. Military have
enjoyed a long and productive
                                            To that end, the LAMP Committee sent a
relationship, based upon mutual respect,
                                            request to ABA entities that either had,
trust and the desire to promote freedom
                                            or expressed interest in fostering, a
and justice while assisting the service
                                            relationship with the military. The
member. The July 2003 meeting was
                                            following entities responded by
designed to bring leaders in the ABA
                                            appointing a representative to the
together with leaders in the military to
                                            Working Group:
discuss additional ways that the ABA and

Page 12
Executive Summary

Standing Committee on Armed Forces
                                              The Working Group sought input from
General Practice, Solo and Small Firm         many sources in furtherance of its work,
Section                                       especially with respect to the day to day
                                              problems that seemed common to a large
Government and Public Sector Lawyers
                                              number of military legal assistance
                                              attorneys. These contributions took the
Section of Family Law                         form of research assistance, anecdotes,
Section of Labor and Employment Law           and simply voices of support for the
Section of Litigation

Section of Real Property, Probate and
Trust Law                                     Having identified military-related statutes
                                              from 30 states, the subcommittees set
Section of State and Local Government
                                              upon the task of evaluating them, with an
                                              eye toward determining the level of
Section of Taxation                           involvement each state seemed to have
                                              when it came to legislating specifically
Tort Trial and Insurance Practice Section
                                              with the service member in mind. Subject
Young Lawyers Division                        matter experts in each subcommittee’s
                                              topic area drew upon their knowledge
                                              and experience as both civilian
The Working Group developed a mission
                                              practitioners and military legal assistance
profile, which necessarily included its
                                              attorneys, in order to evaluate the
approach toward accomplishing its goal
                                              various statutes in their subject area, as
and its methodology. The first task was
                                              well as compare them to currently
to identify laws that apply specifically to
                                              existing, more comprehensive service
service members in individual states, but
                                              member legislative protections
to remain vigilant for those laws, rules,
                                              (Servicemembers Civil Relief Act,
customs or practices that did not
                                              Uniformed Services Employment and
specifically apply to service members, but
                                              Reemployment Rights Act), and state-
nonetheless had a profound positive or
                                              based embodiments/emulations of same
negative impact on service members,
                                              in Florida and New York.
simply because of their military-related
status. To facilitate its work, the
Working Group formed subcommittees            Each subcommittee set about identifying
to address problems in topic areas its        gaps in the state laws, or ways that the
members deemed needful of close               laws can work against service members,

                                                             Page 13
E xe c u t i ve S u m m a r y

with the goal of making recommendations        toward analyzing the issues and
on how the gaps can be filled, or law can      determining what approaches the ABA
be amended to avoid injustice to service       (and others) could take to rectify
members, or how the law can be made to         impediments to fair/more beneficial
resemble a more service member friendly        treatment for service members.
agenda, but always with an eye toward
overall fairness and realism within the
legal/political climate.
                                               Apart from the individual conclusions
                                               each subcommittee reached with regard
The Working Group distilled that
                                               to their specific subject matter or topic,
information into this report.
                                               the reader will note some similar and
                                               recurring themes throughout this report,
                                               in that the state of legislation as it relates
   Laws Examined                               to service members in the United States
                                               seems to require additional research and
The Working Group’s goal was to                cogent analysis. Also, it is the opinion of
examine as many statutory schemes as           the Working Group that the following
practicable in order to obtain a fairly        elements tend to be common problem
representative view of the laws that affect    areas in need of quick attention: 1) an
service members in the United States.          overall lack of uniformity among states
The Appendix (the CD-ROM attached to           and other jurisdictions concerning rights/
this report) contains links to the             benefits granted to service members 2)
resources examined by the Working              awareness at the state and local legislative
Group as well as links to the statutes.        levels of the types of legal hardships faced
                                               by military personnel, especially the
                                               mobilized members of the reserve and
  Issues Identified
                                               National Guard, and 3) education of
                                               service members and the communities in
The Working Group endeavored to
                                               which they live, work and function as a
examine and identify the issues that most
                                               vital element of the socio-economic
impact the quality of the daily lives of our
                                               system, about the rights and benefits
service members, and through its
                                               service members enjoy, as a means of
summary reports, provide some examples
                                               avoiding legal disputes altogether.
they thought were particularly
noteworthy. By having the separate
subcommittees concentrate on their
respective topic areas, subject matter
experts were able to devote their time

Page 14
E xe c u t i ve S u m m a r y

                                               better protect them from unfair
                                               treatment by the courts.

Education Issues
This group investigated the policies,
procedures, customs and practices of           This group examined the current SCRA
colleges and universities regarding how        (and the prior SSCRA), in light of several
they treat students who serve in the           proposed amendments to it, and suggests
military, or are called to active duty         the measures that will make it more
service while in the reserve, including: in-   effective legislation.
state tuition benefits, tuition refunds
during times of active-duty service, tuition
credit for students who serve,                 USERRA
reinstatement to pre-service status upon       This group examined the current version
demobilization, student loan forgiveness,      of USERRA, and suggested measures that
and credit for study/experience achieved       will make it more effective legislation,
during service.                                including a review of the current
                                               utilization of ESGR.

Taxation Issues

This group investigated the policies,          Voting Rights
procedures, customs and practices of the       This group examined the ways and means
IRS, and state and local governments, with     to improve the quality of life for members
an eye toward lessening the unfair impact      of the National Guard and Reserves by
that application of the tax codes may have     facilitating and ensuring exercise of the
upon service members who are                   right to vote.
compelled to relocate due to military

                                               This group examined the current state of
Family Law Issues
                                               ELAP (Expanded Legal Assistance
This group investigated the state statutes,    Program) rule implementation in the U.S.,
uniform laws, policies, procedures,            and explored the ways and means to both
customs and practices in the area of           encourage adoption of an ELAP rule and
divorce, adoption, child support, and child    effective implementation of it for the
custody for purposes of identifying the        benefit of service members.
specific disadvantages service members
face because of their duties, and how to

                                                              Page 15
E xe c u t i ve S u m m a r y

Decedent Affairs                                Problems exist in both theory and
                                                practice. That is, even if a jurisdiction has
This group examined how to increase
                                                in place laws designed to benefit service
benefits to the survivors of those killed
                                                members (or at the very least, avoid
during military service, including
                                                additional hardship to service members),
emotional, social, and familial support in
                                                there are situations where there is a lack
addition to economic and financial
                                                of knowledge about how these laws
                                                apply, how they interrelate with other
                                                legislation, and, sometimes, that these
Miscellaneous, State Laws,                      laws exist in the first place.

This group examined the miscellaneous           It is the collective opinion of the Working
laws, statutes, policies and procedures         Group that individual state and local
that affect service members, with the goal      jurisdictions should focus on two main
of cataloging some current legislative and      general goals; 1) creating a more uniform
administrative protections for service          system of service member-related
members, as well as identifying examples        legislation, including specific reference to
of deficiencies in each, for purposes of        and adoption of federal protections
suggesting legislative cure or amendment.       contained within the SCRA and USERRA;
                                                and 2) working to educate the practicing
                                                bar, judiciary and service members
  Summation                                     themselves about these protections, so
                                                that service members may focus on their
                                                missions rather than legal uncertainty.
Overall, in many ways, the legislative
landscape in the U.S. treats service
members in disparate fashion. While
                                                This is not to say that there is a deficit of
some states (particularly those with large
                                                specific steps that jurisdictions may take
military populations) have attempted to
                                                in distinct areas of law, and these are
take a comprehensive approach to
                                                more properly illustrated in each of the
protecting the rights of service members,
                                                following summary reports. One will
others approach the problem ad hoc or
                                                undoubtedly gather from reviewing these
piecemeal, leaving significant gaps. Finally,
                                                that there is much work to be done, and
there are jurisdictions that seem to have,
                                                further study and in-depth cognition will
at least in a practical sense, avoided
                                                be required -- more so than one small
tackling the problem altogether.
                                                group with limited resources can achieve.

Page 16
E xe c u t i ve S u m m a r y

But it is work that should find its way into
our consciousness. In a world in which
our security is constantly threatened, our
military is one of our most valuable
assets. And if the price of freedom is
eternal vigilance, we must take steps to
ensure the law does not place a "tax" on
those individuals who have volunteered
to provide that vigilance for us. And as
the nature of our military changes, it is
essential that we provide sufficient
flexibility within our legal system to
facilitate and encourage military service.

                                               Page 17
Prefatory Notes and Observations

The Working Group was limited in the            bulk of the civilian practicing bar. The job
scope of its work to examining the civil        of legal assistance officer has been
(as opposed to criminal) laws that affect       described as the toughest of all the work
U.S. servicemembers. The ABA LAMP               military lawyers do, yet it is a job
Committee was the appropriate choice            performed by some of the newest and
for this tasking, because the nature of         more inexperienced attorneys.2 Despite
military legal assistance, as an area of        these hurdles, legal assistance attorneys
inquiry, lends itself to the LAMP               play an extremely important role in the
Committee’s (and its constituency’s)            day to day life of our service members,
particular expertise.                           since they are responsible for delivering
                                                legal services to a population of 1.37
                                                million Active duty forces and 1.28 million
A Note About Military Legal                     Ready and Stand-by Reserves and their
Assistance                                      dependents, civilian employees, and
The term “legal assistance” evokes in           retirees.3
many minds the imagery of traditional
legal aid programs, i.e. legal services
                                                Legal assistance attorneys are legal
provided for free to clients of no or very
                                                generalists. They provide advice and
limited financial means, usually based on
                                                counsel in many diverse areas of law,
need. But there is much more to military
                                                including: estate planning (such as wills
legal assistance than simply a mechanism
                                                and testamentary trusts); domestic
by which service members may obtain
                                                relations (divorce, legal separation,
legal services at no charge. It is, actually,
                                                annulment, custody, paternity, adoption
more of a substantive practice area,
                                                and name changes); immigration and
available to all servicemembers,
                                                naturalization; taxes (basic advice and
regardless of their income level. Legal
                                                assistance on Federal, State, and local tax
assistance has enjoyed a long history and
                                                returns); landlord-tenant relations
tradition in the armed forces, and has
                                                (including review of personal leases and
evolved (just as the nature of our nation’s
                                                communication and correspondence);
military has evolved) into a vital, forward-
                                                assistance with civil lawsuits (preparation
looking service organization that plays a
                                                of correspondence, documents and in
vital role in the lives of a substantial
                                                limited cases pleadings); Servicemembers
number of Americans.
                                                Civil Relief Act (SCRA) advice and
                                                assistance; civilian criminal matters
The military has had a legal assistance         (although limited to general advice
program since 19431, although it is a           regarding minor [misdemeanor] matters
practice area often overlooked by the           and traffic offenses within the jurisdiction
                                                of the civilian courts); real estate;

Page 18
Prefatory Notes and Observations

bankruptcy; consumer affairs; and                The Standing Committee on Legal
insurance coverage.4 Accordingly, since          Assistance for Military Personnel (LAMP)
the legal assistance attorney is not
afforded the luxury of concentrating or
specializing their duties, they must             The Standing Committee on Armed
develop knowledge and talent in handling         Forces Law (SCAFL)
matters in a number of different topic
areas quickly and effectively. It is not
                                                 Military Lawyers Committee of the
difficult to imagine, then, how increasing
                                                 General Practice, Solo, and Small Firm
legal uniformity concerning the rights of
                                                 Section (GPSolo)
service members would provide military
legal assistance attorneys with a valuable
tool for servicing their clientele.
                                                 The Military Lawyers Conference of the
                                                 Government and Public Sector Lawyers
The Role of the American Bar

The ABA has long supported the military          Military Law Committee of the Family
legal assistance attorney, and military          Law Section
lawyers in general. Military lawyers --
active duty, reserve, and retired -- for
generations have been active in all levels       Judge Advocates Association (JAA) – an
of the ABA as chairs and members of              affiliated organization
sections, committees, commissions, and
task forces, members of the Board of
                                                 Ongoing and developing relationships also
Governors and House of Delegates, and
                                                 exist between the Armed Forces and
officers. The ABA and the Armed Forces
                                                 other ABA entities, including the
have worked together since World War
                                                 Commission on Domestic Violence,
II through educational programs,
                                                 Section of Taxation, and Standing
legislative efforts, and other activities
                                                 Committee on Law and National Security.
related to military justice, legal assistance,
and other areas of military legal practice.

                                                 In addition, the ABA has policies on
                                                 numerous military issues including, most
Currently, five ABA entities and one ABA
                                                 recently, a Model Expanded Legal
affiliated organization have military
                                                 Assistance Rule and acceptance of
support among their primary missions.
                                                 Voluntary Legal Assistance Services in the
                                                 Military. A partial listing of ABA military

                                                                Page 19
Prefatory Notes and Observations

related policies and past initiatives is       the goal of protecting the rights of those
contained in the Appendix.                     who each day stand in harm’s way.

One of the LAMP Committee’s ongoing            The following materials are organized by
projects, Operation Enduring LAMP, is a        subject matter, and seek to 1) identify
major ABA undertaking to organize and          issues of primary importance; 2) illustrate
educate American lawyers who have              the nature of the issue using real-world
volunteered to provide free legal              examples; and 3) propose a realistic,
assistance support to service members          workable solution to the problem. While
involved in the War on Terror, and the         the Working Group does not believe that
conflict in Iraq. The program involves 56      its conclusions provide the only answer
state and local bar associations and           to any particular problem, it offers the
thousands of civilian attorneys.               following as cogent views from an expert
                                               perspective to provide the foundation for
                                               future study and further analysis.5
The ABA also recognizes military
attorneys annually for exceptional
professionalism, high achievement, and
scholarly work. Superior achievement
awards are presented in the areas of
military justice and legal assistance (legal
assistance providers and students). Top
junior and mid-grade judge advocates
from each of the Armed Services are
honored with special awards. The ABA
sponsors two writing competitions, one
in legal assistance for which there are two
cash awards and another in military

Building on the ABA’s history of
cooperative effort with the military, the
Working Group hopes these materials
will help to further develop the
relationship between the military legal
community and ABA, and provide a
pathway that others may follow toward

Page 20
Decedent’s Affairs

                    Issue                                        Issue

Acceptance of the Military Testamentary         Recognizing the protections of the
Instrument by the states and territories.       Servicemembers Civil Relief Act in
                                                probate and guardianship proceedings.

Although Federal Law (Title 10, United
States Code, Section 1044d) authorizes          The Servicemembers Civil Relief Act6
the use of the Military Testamentary            offers many protections to the service
Instrument, some have voiced concern            member such as stays of proceedings,
that there may be a conflict with state’s       protection against default judgments, and
rights, in that wills and probate               the tolling of the statute of limitations.
substantive law is within the power of the      The problem with the act is that it is not
states, and not the Federal government.         widely known outside of collection or
This same concern can be raised                 landlord-tenant attorney circles, and in
regarding Military Powers of Attorney (10       particular by members of the probate
USC 1044b) and Military Advanced                judiciary and bar. The various state
Medical Directives (10 USC 1044c).              probate and guardianship codes contain
                                                provisions for notice to interested
                                                parties, such as heirs, devisees, relatives
Recommended Resolution                          and creditors. They also contain time
Enact state legislation specifically            limitations on the filing of objections and/
recognizing these Federal documents.            or claims. However no one ever deals
One such example is Florida, which              with the aspects of how these notice and
amended Section 732.502 of its probate          time limitations affect service members,
code to recognize the Military                  and that there are protections under the
Testamentary Instrument, by adding the          SCRA. It is unlikely that an affidavit of
following language:                             non-military service or appointment of an
                                                attorney is ever required in a probate
                                                under section 521 of the SCRA.
“(3) Any will executed as a military            Unfortunately these protections are
testamentary instrument in accordance           buried in Federal statutes that may not be
with 10 U.S.C. s. 1044d, Chapter 53, by a       common knowledge.
person who is eligible for military legal
assistance is valid as a will in this state.”

                                                               Page 21
Decedent’s Affairs

Solution                                        Relief Act (SCRA), servicemembers often
                                                title the vehicle in their name alone. The
Incorporate the procedural requirements
                                                protection against ad valorem property
of the SCRA into state statutes relating to
                                                tax does not extend to a civilian spouse. If
civil procedure, probate and guardianship
                                                the vehicle is titled in both the
codes, and/or rules of court. One
                                                servicemember's name and the spouse's
example of such a comprehensive rule of
                                                name, many states, e.g. Virginia charge the
court can be found in New York.7
                                                family the full amount of the ad valorem
Another way of handling the default
judgment problem was a New York
Attorney General Opinion requiring a
non-military affidavit prior to any county
                                                Having the title in the name of only the
clerk entering a default judgment.8
                                                servicemember requires the surviving
                                                spouse or heirs to probate the vehicle in
                                                the state titled. Probate in the state of
                   Issue                        duty assignment only includes that one
                                                vehicle titled in that state. This is an
Absent an amendment to the                      undue hardship which civilian families
Servicemembers Civil Relief Act that            generally never encounter as they register
extends the protections from ad valorem         and title their vehicles in both spouses
property tax to military spouses, military      names and suffer no tax penalties and
families need broad, statutory authority        obtain all the benefits of joint ownership
to transfer title to all vehicles upon the      including no probate.
death of either the servicemember or
spouse.                                         In one recent case, the vehicle was titled
                                                in the servicemember's name alone, and
Description                                     upon the member's death, the wife
Military families often title and or register   transported the vehicle to the state of
their vehicles in the state of duty             her domicile, which was not his state of
assignment rather than their state of           domicile. She was not allowed to transfer
domicile. Sometimes they purchase the           title into her name except in the state of
vehicle in that state of duty assignment,       duty assignment, which was Hawaii.
and title and registration merely follow        During the grieving process, she could
course during the purchase of the vehicle.      not calculate the need to open a probate
                                                in Hawaii to transfer the vehicle into her
To maintain the protections against ad          name.
valorem property taxes on the vehicles
under the current Servicemembers Civil

Page 22
Decedent’s Affairs

Her state of domicile had no authority to
transfer the title or to probate title. She
was forced to open a probate in the                               Issue
member's state of domicile for no reason
other than to transfer the title of the one      Servicemembers are unaware of the
vehicle.                                         complexity of a proper estate plan.

Potential Solutions
Amend the SCRA to allow military                 Description
families to maintain the protections
                                                 As diligently as the military legal
against ad valorem property tax on
                                                 community and organized bar try to
vehicles even if they chose to title their
                                                 educate servicemembers and their
vehicles in both names. See the SCRA
                                                 families as to aspects of estate planning,
Section and the Tax Section.
                                                 Servicemembers Group Life Insurance
                                                 (SGLI), and the titling of assets, we come
Recommended Resolution                           up short. Time and time again when
In absence of amendment to the SCRA,             assisting in the settlement of a service
sponsor an ABA House of Delegates                member’s estate we find the same
resolution calling on the States to enact        problems. The most common are SGLI
legislation allowing transfer of title to        beneficiary designations that do not
vehicles if the vehicle is located in the        match the will or estate plan, or the
state after the death of an active duty          decedent’s family situation. The usual
servicemember or the spouse of an active         problem is naming someone in the service
duty servicemember.                              member’s family (i.e., mother) as
                                                 beneficiary when there are children, with
Recommend language should read:                  the thought that the family member will
                                                 then manage the money for the children.
When a servicemember on active duty or           There is just a lack of understanding of
the spouse of a servicemember on active          the ownership of property, or the
duty dies, the title to any vehicles titled in   concept of guardianship among the
the deceased spouse's name alone, may            members and the personnel clerks who
be transferred to the heirs in accordance        administer SGLI designations. There are
with the laws in the heir's state of             well intended Casualty Call Officers who
domicile, the deceased party's state of          give bad advice or take incorrect steps
domicile, or the state of duty assignment        because they do not understand the legal
at the time of death if the vehicle is           complexities, or that an attorney should
located in that state.                           be consulted. In one case the CCO was
                                                 in such a hurry to collect the SGLI for the

                                                                Page 23
Decedent’s Affairs

surviving spouse, when the proceeds            daily in harm’s way deserve the same legal
should have been disclaimed to fund a          readiness check-up that they receive in
credit shelter by-pass trust in the            their dental readiness check-up.
decedent’s will. In another, the CCO
took the next of kin to the courthouse
and assisted in filing a pro se guardianship   Solution
proceeding that was improperly done,           The American Bar Association and the
and just resulted in more legal work and       state bars should consider support for
fees. There is even one Federal Credit         the following:
Union that determines who is the next of
kin to receive small account balances
regardless of the state intestacy statutes!    A triennial legal readiness review by a
Much of this occurs because there are          military legal assistance attorney of every
non lawyers administering programs and         service member, active and reserve, to
writing the manuals and instructions, as       include the review and updating of the
well as lack of training and emphasis on       SGLI beneficiary designation.
legal complexities. Sometimes
servicemembers are not referred to the
military legal assistance office, even         The Casualty Call Officer program to be
though the program has been available          operated jointly with the legal assistance
and in existence for 60 years.                 program.

Although legal assistance attorneys have                        Issue
advertised their services, given briefs and
seminars, they still reach only about 15%
                                               Survivor Benefit Program (SBP) payments
of the total force. This may be because
                                               drop from 55% to 35% when the surviving
there has been some resistance to
                                               spouse reaches age 62.
requiring a legal “check up” periodically
or upon reporting to a new duty station.
Although one cannot require every
service member to have a will, we should
consider requiring every service member        The Survivor Benefit Plan now provides
to have his or her affairs reviewed every      that the surviving spouse’s benefits drop
3 years. The incidents involving Gander,       from 55% to 35% upon attaining age 62.
USS Stark, USS Cole, the Pentagon on           This is an offset for social security, more
9/11, Iraq, and Afghanistan all provide        commonly called the “widow’s tax.” No
illustrations of the need for legal            other federal survivor benefit plan
readiness. Our service members who are         provides for a similar offset.

Page 24
Decedent’s Affairs

Senator Mary Landrieu (D. Louisiana) has     Solution
introduced an amendment to the
                                             The American Bar Association should
National Defense Authorization Act.
                                             support this legislation.
This amendment will increase the
minimum Survivor Benefit Plan basic
annuity for surviving spouses age 62 and
older, and will provide for a one-year
open season under that plan.

Amendment Provisions

Senator Landrieu's bill proposes to
restore full SBP entitlement for survivors
who are over age 62 at which time their
annuity drops from 55% to 35%:

Restore the Survivor Benefit Plan to 40%
by 2005;

Restore the Survivor Benefit Plan to 45%
by 2008; and

Restore the Survivor Benefit Plan to 55%
by 2014.

Allows retirees who have not joined SBP
to re-enroll.

It also provides for an open enrollment
period commencing October 1, 2005.

The senate passed this amendment and it
will go forward as part of the National
Defense Authorization Act.

                                                          Page 25

                                                families, one must consider the added
                   Issue                        emotional impact of a “forced” family
                                                separation to determine if the child will
Members of the Uniformed Services and           be successful attending college away from
their military dependents need in-state         the family. Additionally:
tuition rates for public, secondary
education, including graduate degrees,          while they mature and adjust to the
when assigned or stationed in a state           college experience, many children
                                                continue to reside in the family home for
pursuant to military orders and when            just this reason;
leaving a state pursuant to military
orders.                                         distance from family for a young adult
                                                starting college could make the difference
                                                in their success or failure in college;

Description                                     military orders while attending college
                                                may force a change in the tuition rate;
Members of the Uniformed Services and
their military dependents (spouses and
                                                to continue in the same college the
primarily children ages 18 to 23 years)         student must then address the significant
who attend a public college or university       financial burden not only of the cost from
                                                room and board, but also the increased
in the state of the servicemember’s             tuition rate;
military assignment are often subject to
the highest tuition rate, that rate for a       the student may be forced to drop out of
                                                college to accompany the family to the
non-resident. This tuition rate has             new state of duty assignment;
significant impact for the following
reasons:                                        changes in colleges often delay the degree
                                                completion and increase the total college
a college-bound student may not attend
college due to the financial inability to pay
tuition in excess of the in-state rate, or      Thirteen states offer some form of in-
due to the financial inability to pay room
and board while away from the family in         state tuition to members of the
the member’s state of domicile;                 Uniformed Services and their family
room and board cost (without tuition) for
a college student varies with locale -
room and board may cost between
$1,000 to $1,400 per month, an obvious          College-bound students and families of
financial burden.                               the Uniformed Services should not be
                                                subject to the financial hardship of the
For children not yet mature enough to           highest state tuition rates merely due to
live on their own, separated from their         their service to our country.

Page 26

Potential Solutions                              retains in-state tuition status.
                                                 As long as they reside continuously in this
Encourage states to enact statues that           state, military dependents of a member of
give members of the Uniformed Services           the Uniformed Services of the United
                                                 States who has been assigned elsewhere
and their dependents public college and          immediately following assignment to duty
                                                 in this State are entitled to in-state tuition
university tuition rates equal to the in-        status.
state rate.                                      Military dependents of a member of the
                                                 Uniformed Services of the United States
                                                 who dies or is killed are entitled to pay
                                                 the tuition of State residents if the spouse
Provide federal benefits to the                  and children become residents of the
                                                 state within 90 days of the date of death.
servicemember to offset all tuition rates
in excess of the in-state tuition rate.

Recommend Resolution
                                                 Servicemembers who are students need
Sponsor an ABA House of Delegates
                                                 grade, tuition, and deferred enrollment
resolution calling on the States to enact
                                                 protections when they are unable to
legislation extending in-state tuition rates
                                                 complete an educational term or degree
to servicemembers and their dependents.
                                                 program due to military service.
Recommend language should read:

In-state tuition status for active duty          Description
members of the Uniformed Services and
their family members who are military            This issue affects our nation’s best and
                                                 brightest who are attending post-
A member of the Uniformed Services of
the United States and their military             secondary and graduate institutions while
dependents do not lose in-state tuition
status by reason of his or her presence in       serving in the military. The Uniformed
any other State or country while a               Services need these intelligent and
member of the uniformed services of the
United States or in the case of military         industrious servicemembers.
dependent, accompanying a member of
the Uniformed Services of the United
A person who is a member of the                  These students are thirty per cent of our
Uniformed Services of the United States          reservists, and while the Uniformed
and who is stationed in this State
pursuant to military orders or is a military     Services Employment and Reemployment
dependent of a member of the Uniformed
Services of the United States who is             Rights Act (USERRA) provides
stationed in this state pursuant to military     servicemembers with reinstatement and
orders is entitled to classification as an in-
state student for purposes of determining        other employment protections, there is
tuition rates at State educational
institutions. The student, while in              no equivalent statutory protections for
continuous attendance towards the                servicemembers who are students.
degree for which currently enrolled,

                                                                 Page 27

An example of the actual hardships              provides other employment-related
encountered by one reservist recently           benefits. With statutory protections, she
ordered to active duty may prove helpful.       would not have these financial and
Our example is a full-time college              academic concerns. One could say, that
student, who is a reservist after her initial   as a reservist, she should have known all
tour on active duty. She has income only        this was possible. However, that does not
from her GI Education Bill and reserve          lessen this servicemember’s concern
drill pay.                                      about her academic progress when she
                                                was ordered to AD. She felt it would only
                                                be fair to have a federal law that
As a college student in California, she did     protected her financial and academic
not rate in-state tuition at the public         benefits as related to her college
college she attended, although she was          education
merely months away from eligibility for
in-state tuition. During the middle of her
second semester at college, she received        The Department of Education issues
only 14 days notice to report to active         periodic guidance and requests those
duty (AD) for 365 days. (Members of her         educational institutions voluntarily
detachment were all “select and direct”         provide student servicemembers with
and given merely 14 days notice to              refunds, credits and various other
report.) She had no statutory academic/         protections due to military service.
education protections as she left college       Additionally, Congress did enact the
and reported for AD. Her college would          “Heroes Act of 2003.” However, the Act,
not allow a refund of tuition paid for that     while providing a “sense of Congress”
term. There was an on-going problem             does not have any statutory requirements
with her GI Bill entitlements, and the          regulating treatment of reserves such as
federal government wanted her to refund         the instant case.
them those benefits paid during her
partial term. Moreover, there was not
enough time to request course credit or         Fortunately, some states, e.g. New Jersey,
deferred enrollment – the “incompletes”         have enacted laws that do protect
will have a derogatory affect on her            student servicemembers.
academic record before she returns from
                                                Without statutory protections for
                                                servicemembers, the policies governing
Her counterparts, who left a civilian           tuition refunds or credits, course credit,
employer, have a federal law that               deferred enrollment, and reinstatement at
provides for their reinstatement and            the institution, vary by institution.

Page 28

Recommended Resolution                          A grade of incomplete shall remain valid for
                                                a period of 12 months after the student
Sponsor an ABA House of Delegates               returns to the public institution of higher
resolution calling on the States to enact
legislation protecting grades, tuition and      A student who chooses to accept a grade
fees, and providing deferred enrollment for     of pass or fail may, within 12 months after
                                                returning to the institution receive a letter
students who must withdraw from a               grade for the course by completing the
course due to active duty military service      work required for the course, in which
                                                case the letter grade shall replace the pass
or who cannot enroll due to active duty         or fail grade as the student’s grade for the
military service. Recommended language
should read:
                                                FEES AND EXPENSES
                                                A student who chooses to withdraw from
Educational Protections for                     a course under the provisions of this
Servicemembers Called to Active                 section shall receive a full refund of tuition
Duty                                            and fees attributable to that course.

GRADES                                          A student who has paid amounts for room,
                                                board or non-course fees shall receive a
A student at a public institution of higher     refund of that portion of those amounts
education who is unable to complete a           attributable to the time period during
course because the student is called to         which the student did not use the service
partial or full mobilization for State or       for which payment was made.
federal active duty as a member of the
National Guard or the Uniformed Services
of the United States shall be entitled to       Any refund payable to a student who is a
options set forth in this section with          financial aid recipient shall be subject to
respect to the student’s grade for the          applicable State and federal regulations
course.                                         regarding refunds.
A student who has completed at least two-
thirds of a term in a course may choose to:
receive a letter grade; or                      DEFERRED ENROLLMENT
receive a grade of pass or fail; or             Deferred enrollment shall be provided to:
receive a grade of incomplete; or               any student who must withdraw from a
                                                course under the provisions of this section,
withdraw from the course.                       and any student who after acceptance
                                                cannot enroll due to active duty military
A student who has completed less than           service.
two-thirds of term in a course may choose
receive a grade of incomplete; or
withdraw from the course.

A letter grade or grade of pass shall only be   Reservists and members of the National
awarded if, in the opinion of the faculty       Guard registered for a state bar exam who
member teaching the course, the student
has completed sufficient work, and there is     cannot take that exam due to military
sufficient evidence of progress toward
meeting the requirements of the course, to      orders need a complete refund of bar exam
justify the grade.                              fees.

                                                              Page 29

Description                                   Potential Solution

Law students and law school graduates         Encourage state bars to enact provisions
serve in the reserve components of the        refunding or crediting bar exam fees to
Uniformed Services and in the National        reservists and members of the National
Guard. Often their reserve service allows     Guard who cannot sit for an exam when
them to work part-time while attending        they receive military orders any time
law school. They are performing a public      before finishing the exam.
service as a member of the National
Guard or the reserves.
                                              Recommended Solution

                                              Sponsor an ABA House of Delegates
The recent past has demonstrated that
                                              resolution calling on the state bars to
reservists and members of the National
                                              enact provisions to refund all bar exam
Guard are subject to unexpected orders
                                              fees to any reservists or member of the
to active duty when needed by their
                                              National Guard who cannot complete the
country. The military cannot give waivers
                                              bar exam due to military orders.
or exemptions from call-up and orders to
these members for having enrolled to
take a bar exam (or for any other
licensing or educational process.)

                                              Servicemembers on active duty need
Many reservists may lose income due to        exemptions from mandatory, educational
their military orders. Whether or not         requirements to maintain their state or
they suffer a loss of income due to the       federal professional license or
military orders, absent a refund or credit,   certification.
through no fault of their own, they are
stuck with paying for that bar exam. They
become financial victims for their public     Description
service and patriotism as a reservist.
                                              The Uniformed Services and the National
                                              Guard provide training for
                                              servicemembers to perform their military
The federal law provides for
                                              duties in many specialty fields, e.g.
reinstatement with an employer after
                                              attorneys, engineers, air traffic
active duty, however there is no federal
                                              controllers, etc. Often the very nature of
law requiring refund or credit for fees
                                              the duties requires training to perform
charged to sit for a bar exam.
                                              those duties, and the military readily
                                              accepts and recognizes the need for

Page 30


                                                These are obstacles and hardships that
                                                their civilian counterparts never
The military is known as a premiere
training and educational agency, which
many join to obtain that training and
education for use in future civilian
                                                Recommended Resolution
employment. Military training options
include: local or onsite training; sending      Sponsor an ABA House of Delegates
the servicemember to a military training        resolution calling on the States to enact
location; and sending the servicemember         legislation to exempt active duty
to a civilian training location.                servicemembers from mandatory training
                                                and educational requirements while
                                                maintaining their licenses and
Servicemembers have duty assignments            certifications. Recommended language
that are regimented for the good order          should read:
and discipline of the military, and they are
not free to leave their military duties or      The following persons licensed or
assignments to attend mandatory training        certified by a regulatory agency in this
                                                state shall be exempt from the mandatory
necessary to keep their licenses and            educational or training requirements
certifications current, except under            during their active duty service:
regulated absences.
                                                servicemembers in the Uniformed
                                                Services and in the National Guard who
                                                do not work in this state or another state
Their duty assignments may be located           under their license or certification except
                                                as active duty servicemembers in the
more than 3,000 miles from the state            Uniformed Services or the National
                                                Guard. Mandatory training and
where they are licensed or certified, and       educational requirements shall be
frequently there is significant distance        prorated for any 12-month period for
                                                which the person is on active duty.
between the duty assignment and the
licensing state. Access to that state’s local
training is not possible without leaving
their military duties and incurring
substantial personal, financial costs for
their travel to the licensing state. Other
training that may be offered nearby,
however that training may or may not be
accepted by the licensing state agency, or
there may not be any equivalent training
available to the servicemember.

                                                               Page 31
E x p a n d e d L e g a l A s s i s t a n c e P ro g r a m ( E L A P )

                                               matters with lawyers representing
                  Issue                        opposing parties. However, because
                                               military lawyers tend to be stationed
Service Members Need Access to In-             away from the state in which they 1)
Court Representation                           attended law school, 2) hold a current
                                               license in good standing, 3) are familiar
                                               with local procedures, rules and customs,
                                               they are unable to advocate for their
U.S. military forces are deployed both         clients by appearing in court to represent
within the United States and around the        them. Therefore, military legal assistance
world. They consist of active duty and         attorneys are forced to refer clients to
reserve elements, all with a certain need      lawyers in private practice who can assist
in common. That is, they require civil         them in court. While referral to the
legal assistance in terms of basic, day-to-    private bar is not in and of itself
day problems, as well as readiness and         detrimental, unfortunately, many military
preventive measures in the event of            members and their dependents often do
mobilization in response to conflict.          not have sufficient disposable income to
Military lawyers commonly provide              hire lawyers, and many are further
eligible legal assistance clients with         disadvantaged by being stationed at a site
services in the form of drafting and           far removed from the states in which
executing wills, powers of attorney,           their legal problems need to be resolved.
health care directives, and, in marital        At the same time, most service members
situations often involving distribution of     do not qualify for free legal services under
military pensions. They also assist clients    the guidelines used by many pro bono or
in divorce, adoption, and name change          legal assistance agencies. In effect, service
proceedings, child support and paternity       members are priced out of the full-fee
claims, landlord-tenant disputes,              market, but also the no-fee market. The
consumer protection issues, and                inability to represent a military client in
garnishment and other debt-related             court may also detract from full and
problems. These legal assistance               zealous advocacy by the legal assistance
programs are authorized by Title 10,           attorney, who can only “go so far” in
United States Code, Section 1044 (10           advancing the interests of his or her
USC 1044).                                     client.

Most legal assistance is provided to clients   Potential Solutions
within the confines of military bases, and
                                               Enact legislation specifically mandating
aboard ships. In many instances, military
                                               that members of the Armed Forces
lawyers advocate, negotiate, and resolve

Page 32
E x p a n d e d L e g a l A s s i s t a n c e P ro g r a m ( E L A P )

qualify for free legal services via local pro   the legislative process. ELAP rules are,
bono programs under Legal Services              predominantly, rules adopted by a state
Corporation guidelines.                         supreme court or court of highest
                                                authority within a state.

Enact legislation exempting military
lawyers from unauthorized practice of           Second, the other proposed solutions
law rules.                                      raise rightful concerns about taking fee-
                                                generating business away from members
                                                of the local private bar, who rely upon
Enact a local court rule adopting an            income from service rendered to
Expanded Legal Assistance Program               members of the military community who
(ELAP).                                         do have sufficient disposable income to
                                                pay for personal legal services. A blanket
                                                entitlement to free legal services for all
Recommended Solution
                                                military members may serve to take
Adopt an Expanded Legal Assistance              precious pro bono resources away from
Program rule.                                   those who need it most, while resulting in
                                                a windfall to a certain percentage of
                                                higher-income military personnel.
Several states, under varying conditions,
including California, Florida, Hawaii,
Illinois, Massachusetts, South Carolina,        Third, a blanket exemption of military
Rhode Island, Tennessee, and Washington         attorneys from unauthorized practice of
(see Appendix for specific statutory            law rules may potentially lead to serious
authorities), authorize military lawyers        concerns over the quality of legal services
who are not admitted to practice in their       rendered to service members by
states, to represent clients in their courts    attorneys who are unfamiliar with a
through an Expanded Legal Assistance            particular jurisdiction’s laws, procedures
Program (ELAP) rule.                            and court rules.

An ELAP Rule is the preferred resolution        Consideration should be given to the
to this problem on several levels. First, it    method used to enact an ELAP rule.
removes the requirement of enacting new         Examples in some jurisdictions (Illinois
or modifying existing legislation on the        and South Carolina, See Appendix) take
state or federal level, and therefore, it is    the form of a standing supreme court
not subject to the same level of political      order with relatively few restrictions,
debate and conciliation often manifest in       while others (California, See Appendix)

                                                               Page 33
E x p a n d e d L e g a l A s s i s t a n c e P ro g r a m ( E L A P )

take the form of a dedicated court rule,
but are restricted to matters arising
under the SSCRA. It is the
recommendation of this Working Group
that, in order to address the over-arching
concern over the lack of uniformity
expressed earlier in this report, ELAP
rules should be adopted on a statewide
basis, as a formal, dedicated court rule.
Standing supreme court orders, while
effective, are difficult to find, and
therefore assert. Additionally, rules that
impose restrictions on subject matter
open the courthouse doors only to a
small percentage of military legal
assistance problems. Some of the rules
require that the military attorney attend a
training course, however the Navy, for
one, does not permit government
payment of the cost. In many instances
the course timing is such that the military
attorney will be out of the legal assistance
department by the time of the course.
Finally, ELAP rules should not serve as a
vehicle to assess fees or additional bar
dues on military legal assistance

Page 34
Fa m i l y L aw

                                             be the case when a servicemember is
                   Issue                     asking for a modification of child support
                                             or alimony due to financial difficulties
Servicemembers need to be able to            imposed on him by deployment or, if he is
present testimony and evidence by            a Guard/Reserve member, by mobilization
telephonic or audiovisual means when         Most Guard and Reserve personnel suffer
they are unable to appear in court due to    a substantial pay decrease when called to
military duties.                             active duty from their civilian jobs, and
                                             this frequently leads to support arrears
                                             with no ability to take leave to ask the
Description                                  court for an adjustment in payments. Any
                                             missed payment is “vested” and may not
When a servicemember is involved in a
                                             be modified by the court, as a general
civil case, he sometimes cannot be
present in court to present testimony or
evidence due to his military duties. His
military assignment, for example, might
                                             Knowing that delay often means increased
take him to another base across the
                                             legal fees for himself, a servicemember
country or in another part of the world.
                                             might also want to participate
When this happens, the court has the
                                             electronically in a hearing involving
choice of proceeding with the hearing
                                             property division, divorce or adoption. A
without the servicemember's testimony
                                             servicemember who needs an adjustment
or continuing the case. Doing without
                                             to his visitation rights or a modification of
the servicemember's testimony leaves the
                                             his custody award might elect to request
court without the benefit of potentially
                                             electronic testimony rather than allow
useful and relevant information upon
                                             delay to worsen the situation of a child
which to base its decision. The option of
                                             with a distant military parent.
a continuance, also known as a stay of
proceedings under the Servicemembers
Civil Relief Act, 50 U.S.C. App. § 522,      There are numerous options available for
only delays the progress of the case since   taking testimony electronically. In
the servicemember cannot participate in      addition to use of the telephone, a
person.                                      servicemember can sometimes obtain
                                             access to video teleconferences (VTCs) at
                                             commercial or command facilities which
There are times when the servicemember
                                             allow real-time audiovisual interaction
will want a hearing, and to participate
                                             with the servicemember as if he were in
actively in it, rather than to delay the
                                             the courtroom. The use of a camera and
resolution of a controversy. Such would
                                             a microphone in connection with a

                                                            Page 35
Fa m i l y L aw

computer connected to the Internet            U.S.C. App. §511 (5):
makes possible testimony from locations
which do not have commercial or
command VTC facilities.                       (5) Court

                                              The term "court" means a court or an
                                              administrative agency of the United States
Section 316(f) of the Uniform Interstate
                                              or of any State (including any political
Family Support Act (UIFSA) provides for
                                              subdivision of a State), whether or not a
parties to “testify by telephone, through
                                              court or administrative agency of record.
audiovisual means or by any other
electronic means.” Section 111 of the
Uniform Child Custody Jurisdiction and        Potential Solutions
Enforcement Act (UCCJEA) permits an
                                              Proceed with the hearing without the
individual to be deposed or to testify by
                                              testimony of the servicemember.
telephone, audiovisual means or
electronic means.

                                              Issue a stay of proceedings until the
                                              servicemember is available to testify in
When the case does not involve UIFSA
or the UCCJEA, opportunities to use
telephone or audiovisual testimony are
limited. Florida allows testimony by
                                              Enact a statute which allows electronic
telephone of non-party witnesses at trial.9
                                              testimony upon the servicemember's
As a general rule, telephone testimony is
not allowed in a trial court.10 Some
courts have recognized that special
circumstances can justify bending this        Recommended Resolution
                                              Enact a statute which allows electronic
                                              testimony upon the application of a
The option of taking electronic testimony     servicemember. Such a statute would
and evidence upon motion of the               read:
servicemember allows the servicemember
to facilitate the prompt disposition of the
                                              Upon motion of a servicemember who is
case when he needs an expedited hearing,
                                              a party in a civil case, the court shall for
rather than leaving him with only the
                                              good cause shown allow the
options of default or delay. The definition
                                              servicemember to present testimony and
of “court” could be taken from the
                                              evidence by electronic means (e.g.,
Servicemembers Civil Relief Act, 50

Page 36
Fa m i l y L aw

telephone, video teleconference, Internet)   stay of proceedings), will have the effect
when the military duties of the              of delaying the resolution of the case for
servicemember have a material effect on      months or years since the servicemember
his ability to appear in person at a         cannot participate in person.
regularly scheduled hearing. “Court”
shall be defined pursuant to 50 U.S.C.
App. § 511 (5) to mean any administrative    There are many occasions in the field of
agency or civil court.                       family law when a servicemember will
                                             want a prompt hearing so he can
                                             participate in it in person, rather than put
                                             up with a delay in resolution of the case.
                                             An expedited hearing, for example, would
                                             be needed when a servicemember is
Servicemembers need to be able to            asking for a modification of child support
obtain expedited hearings when they will     or alimony due to financial difficulties
be unable to attend regularly scheduled      imposed on him by deployment or, if he is
hearings due to their military duties.       a Guard/Reserve member, by
                                             mobilization. Lieutenant Colonel Duncan
                                             D. Aukland, Joint Staff Judge Advocate,
                                             Ohio Army National Guard, pointed out
When a servicemember is involved in a        the following regarding child support in
civil case, he sometimes cannot be           his response to the Group’s initial inquiry:
present in court to present testimony or
evidence in person in court due to his
military duties. His military assignment,    The [income] withholding order requires
for example, might take him to another       the obligor to notify the court of any
base across the country or in another        change in employment or income, such as
part of the world. When this happens,        occurs if a Reserve Component
the court has the choice of proceeding       servicemember is activated. The local
with the hearing without the                 OCSE, known as a child support
servicemember's testimony or continuing      enforcement agency, isn’t required to
the case. Doing without the                  recalculate support with this information.
servicemember's testimony leaves the         Since the military family care plan process
court without the benefit of potentially     doesn’t concern itself with what the
useful and relevant information upon         servicemember must do if ordered to
which to base its decision. The granting     active duty to start or adjust support
of a continuance under the                   based on changed circumstances,
Servicemembers Civil Relief Act (SCRA),      identification of these servicemembers by
50 U.S.C. App. § 522 (also known as a        their unit is hit-or-miss. When

                                                            Page 37
Fa m i l y L aw

servicemembers advised to comply with           his custody award might elect to request
their existing court orders contact the         expedited consideration of the case
OSCE, local OSCE employees reportedly           rather than allow delay to worsen the
tell these servicemembers, who will soon        situation of a child with a distant military
be absent from the jurisdiction and vested      parent.
with a statutory right to a stay of judicial
proceedings, that they must “file a
motion” to reopen or begin judicial             For uniformity in interpretation with the
proceedings. Domestic relations judges          SCRA, the definition of “court” could be
differ with the State OCSE, the Ohio            taken from the SCRA, 50 U.S.C. App.
Department of Job and Family Services           §511 (5):
(ODJFS), over the permitted scope of
administrative recalculations of child
                                                (5) Court
support not subject to stay. One judge
has said that if he entered the child           The term "court" means a court or an
support order, only he can change it;           administrative agency of the United States
while ODJFS attorneys have said that            or of any State (including any political
entry onto active duty can trigger              subdivision of a State), whether or not a
administrative recomputation of support.        court or administrative agency of record.
Mobilizing RC personnel and their families
should not find themselves between
bureaucrats and judges. The Federal             Potential Solutions
OCSE should do more than encourage              Proceed with the hearing without the
quick review of these child support             testimony of the servicemember, which is
orders—it must mandate this practice in         potentially a violation of the
its regulations for State OCSEs at 45           Servicemembers Civil Relief Act.
C.F.R. Part 302, since few court orders of
RC personnel address their latent military
status.                                         Issue a stay of proceedings until the
                                                servicemember is available to testify in
Delay in litigation almost always creates
higher legal expenses for the
servicemember. Knowing this fact of life,       Enact a statute which allows an expedited
a servicemember might also request an           hearing upon the servicemember's
expedited trial in a hearing involving          motion.
property division, divorce or adoption. A
servicemember who needs an adjustment
to his visitation rights or a modification of

Page 38
Fa m i l y L aw

Recommended Resolution                         courts lack the power to grant visitation
                                               to non-parents. This situation may mean
Enact a statute which allows an expedited
                                               that there is no effective access or means
hearing in civil matters upon the motion
                                               of communication between the
of the servicemember. Such a statute
                                               servicemember-parent, who is deployed
would read:
                                               far away, and the children. Lieutenant
                                               Colonel Francine I. Swan, Legal Advisor
Upon motion of a servicemember who is          to the Adjutant General, Hew Hampshire
a party in a civil case, the court shall for   National Guard, noted the following in
good cause shown hold an expedited             her comments to the Group’s initial
hearing when the military duties of the        inquiry:
servicemember have a material effect on        “Child custody/visitation: This is the
his ability to appear in person at a           single greatest area of concern.... [W]hen
regularly scheduled hearing. “Court”           the service member is the non custodial
shall be defined pursuant to 50 U.S.C.         parent and visitation is not allowed to any
App. § 511 (5) to mean any administrative      other members of the non-custodial
agency or civil court.                         parent's family (to include siblings, step
                                               parent and grand parents). In some cases
                                               this effectively cuts off any and all
                                               communication between the child and the
                                               non-custodial parent for the duration of
                                               the deployment. Our service members
Courts should have the power to order,
                                               are risking their lives they should not
for children of servicemembers,
                                               have to risk their families as well. “
substitute visitation with relatives of
servicemembers when military duties
make visitation with a servicemember-
                                               Under these circumstances the court
parent difficult or impossible.
                                               should consider whether those relatives
                                               of the servicemember who have a
                                               significant connection with the
                                               servicemember's children ought to be
When a servicemember is deployed and           able to step into his shoes and see the
unable to arrange visitation, his contact      children during his military-related
with his children is virtually terminated.     absence. In a recent Illinois case, In re
Frequently the custodial parent will refuse    Marriage of Mary Peters Sullivan, the
to allow any visitation with relatives,        Appellate Court of Illinois, Second
claiming that visitation belongs solely to     District, reversed the trial court, which
the noncustodial parent and that the           had dismissed a petition from a deployed

                                                              Page 39
Fa m i l y L aw

servicemember-father to allow substitute      Potential Solutions
visitation. The petitioner had asked that
                                              Leave the law unchanged, thus permitting
his son be allowed to visit with his family
                                              no substitute visitation with family
while he was deployed on active duty,
essentially delegating visitation rights to
his in-laws. In what may be the most
expansive interpretation of the Soldiers’     Enact a statute which allows the court to
and Sailors’ Civil Relief Act (SSCRA) ever    delegate visitation.
published, the appellate court said that,
under the SSCRA, “the courts were
empowered to remove every inhibition          Recommended Resolution
that would interfere with a soldier's full
                                              Enact a statute that allows the delegation
devotion to his important task of service
                                              of visitation rights to relatives of a
for his country." The appellate court
                                              servicemember. Such a statute would
remanded the case for consideration of
delegated visitation rights for the
servicemember.12 Another case in              Upon motion of a servicemember in a
Alabama, also decided in 2003, allowed        case involving custody or visitation (or
for the delegation or substitution of         upon the court’s own motion), the court
visitation rights with family members with    shall for good cause shown allow the
whom the child had a close connection.13      visitation rights of the servicemember to
                                              be exercised by a relative of the
                                              servicemember who has a significant
The definition of “court” could be taken      connection with the child or children
from the Servicemembers Civil Relief Act      when the military duties of the
(SCRA), 50 U.S.C. App. §511 (5):              servicemember have a material effect on
                                              his ability to exercise said rights. “Court”
                                              shall be defined pursuant to 50 U.S.C.
(5) Court                                     App. § 511 (5) to mean any administrative
The term "court" means a court or an          agency or civil court.
administrative agency of the United States
or of any State (including any political
subdivision of a State), whether or not a
court or administrative agency of record.

Page 40
Ser vicemembers Civil Relief Act (SCRA)

                                               been sufficiently protected by the SCRA,
                   Issue                       the vast majority of States provide no
                                               similar protection for their citizen-
National Guard (NG) members and their          soldiers and airmen.
families need Servicemembers Civil Relief
Act (SCRA) protections when performing
                                               Potential Solutions
State, not just Federal, duty.
                                               Encourage States to enact State SCRAs
                                               by adopting the Federal model SCRA for
Description                                    State NG military duty.
While National Guard members are
covered by the SCRA when they are
                                               Amend the Federal SCRA to apply in all
mobilized in a Title 10 status, or in some
                                               NG military duty statuses.
circumstances while serving under Title
32 when performing a mission funded by
the Federal Government, they are not
                                               Recommended Resolution
provided any SCRA type protections
during performance of most State NG            Sponsor an ABA HOD resolution calling
missions. State NG missions range from         on the States to enact legislation to
natural disaster relief, pre-mobilization      protect NG servicemembers when
activities, training, funeral and ceremonial   performing State active duty or training.
activities, to special event security.         Recommended language should read:
Unless the State provides its own SCRA
type protections, which less than 15
                                               National Guardsmen ordered to
States currently provide, servicemembers       active service - civil relief
and their families are vulnerable to the
same civil and legal distractions their        If any member of the State National
                                               Guard is ordered to active service by the
Federal counterparts experience.               Governor of the State of _____ , the
                                               servicemember has all protections
Especially while performing extended           afforded to persons serving on federal
State active duty or training, NG              active duty by the Servicemembers Civil
                                               Relief Act, 50 App. U.S.C.A. 501-596, and
members are at a special disadvantage          by the Uniformed Services Employment
                                               and Reemployment Rights Act, 108 Stat.
when it comes to domestic relations,           3149, 38 U.S.C.A. 4301 to 4333, as
creditor-debtor, and landlord-tenant civil     amended to January 1, 2002.
proceedings. When performing military
duty, whether State or Federal in nature,
the distractions presented by such civil
activities cry out for relief. While Federal
service and federally funded missions have

                                                             Page 41
Ser vicemembers Civil Relief Act (SCRA)

                                                Potential Solutions

                                                Amend sect. 511 of the SCRA to prevent
                                                a State, Commonwealth, or territory
                                                from imposing sales, use, excise, or
Currently, the SCRA does not prevent            similar taxes on personal property of
jurisdictions from double taxing                nonresident servicemembers in the
nonresident service members by imposing         absence of a credit against such taxes
sales, use, excise, or similar taxes on their   previously paid to another State,
personal property without providing a           Commonwealth, or territory.
credit for similar taxes paid in another
jurisdiction. While most jurisdictions do
not exploit this situation, Puerto Rico         Provide military compensation or Federal
has.                                            tax credit for double taxation by a
                                                domiciliary State on a servicemembers’
                                                personal property.

While the SCRA states that the personal
                                                Recommended Resolution
property of a servicemember shall not be
deemed to be located or present in, or to       Sponsor an ABA House of Delegates
have a situs for taxation in, the tax           resolution calling on the Congress to
jurisdiction in which the servicemember is      amend sect. 511 of the SCRA to prevent
serving in compliance with military             a State, Commonwealth, or territory
orders, a Supreme Court                         from imposing sales, use, excise, or
case interpreting this provision does not       similar taxes on personal property of
prevent a jurisdiction from charging a one      nonresident servicemembers in the
time use or excise tax on the property          absence of a credit against such taxes
without providing a credit for a similar        previously paid to another State,
tax paid in another jurisdiction. The           Commonwealth, or territory.
result is that a nonresident service
member may be subject to double
taxation, as they currently are in Puerto                      Issue
Rico, contrary to the intent of the SCRA
that servicemembers are not to be
                                                While many servicemembers possess
unfairly burdened by military directed
                                                jointly own personal property, some
relocations outside their State of
                                                States, Commonwealths, and territories
                                                refuse to recognize the exemption
                                                contained in sec. 511(c) of the SCRA

Page 42
Ser vicemembers Civil Relief Act (SCRA)

from taxation of servicemembers’              Recommended Resolution
personal property when it is jointly
                                              Sponsor an ABA House of Delegates
                                              resolution calling on the Congress to
                                              amend sect. 511(c) of the SCRA
                                              specifically extending its application to
                                              jointly owned personal property.
Claiming that sec. 511(c) applies only to
personal property titled separately in the
servicemember’s own name, some States,                        Issue
Commonwealths, and territories deny
personal property tax exemption to
jointly owned property, e.g., automobiles.    There is little knowledge in the state and
This defies the purpose and intent of the     federal judiciary about the new
SCRA to relieve servicemembers of             Servicemembers Civil Relief Act. An
distractions and civil law requirements       informed judiciary is the servicemembers’
while focusing on the nation’s most           greatest protection against exploitation
important business. It also conflicts with    and disadvantage due to military service.
public policy encouraging marriage, jointly
owned and managed property, and
unfairly discriminates against
servicemembers who are married,               In that the Servicemembers Civil Relief
treating them differently than unmarried      Act was enacted by Congress and signed
servicemembers. In that over 65% of all       into law by the President on December
servicemembers are married, denial of         19, 2003, it is new law. While it is an
sec. 511(c)’s personal property tax           update of its predecessor Soldiers’ and
protection to jointly owned property          Sailors’ Civil Relief Act, the streamlining
defeats Congress’ stated intent and           of old archaic provisions and adding of a
purpose.                                      number of new protections mandates

Potential Solutions
                                              Education of the judiciary promises the
Amend. Sec. 511(c) to apply to specifically
                                              greatest return on effort. The judiciary
jointly owned personal property, similar
                                              needs a PowerPoint slide program, Q &
to sec. 501(e)’s Joint ownership
                                              A’s Asked by Judges Resource Guide, and
application provision.
                                              an electronic copy of the SCRA
                                              disseminated to all state and federal
                                              judges similar to that posted on the

                                                             Page 43
Ser vicemembers Civil Relief Act (SCRA)

Working Group’s ABA website.

Potential Solutions

The ABA has a plethora of organizations         Since enactment of the new SCRA, an
and education programs focused on the           issue has arisen wherein some lessors
judiciary. They need to be provided the         argue sec. 305’s new protection
Working Group’s SCRA materials with a           authorizing servicemembers to terminate
request for dissemination to the state and      leases after they enter active duty, receive
federal trial judge level.                      orders to a new change of station, or
                                                deploy for a period not less than 90 days,
                                                applies only to leases in the
Approach the National Judicial Center in        servicemember’s individual name. These
Reno, NV, to explore inculcation of a           claim this protection does not apply to
block of instruction concerning this            joint leases with a servicemember’s
information.                                    spouse or other family member, or at
                                                least may release the servicemember, but
                                                still hold the spouse/family member liable
Approach the ABA Standing Committee
                                                on the lease.
on Judicial Education, the Judicial Division,
and the State and Federal Judicial
Conferences requesting they co-sponsor          Description
this SCRA education program.
                                                Lessors in Killeen, TX, have refused to
                                                release servicemembers spouses from
Recommended Resolutions                         jointly named leases narrowly reading
                                                new sec. 305’s lease termination
Sponsor an ABA House of Delegates
                                                protection as applicable only to the
resolution calling on the Standing
                                                servicemember. Upon mobilization or
Committee on Judicial Education, the
                                                deployment, it is commonplace for a
Judicial Division, and the State and
                                                nonmilitary spouse to relocate to the
Federal Judicial Conferences requesting
                                                vicinity of family who can provide care for
they co-sponsor this SCRA education
                                                children and family matters needed due
                                                to the absent spouse. To anchor a
                                                spouse in a joint lease defeats Congress’
                                                stated purpose and intent and provides
Approach the National Judicial Center in
                                                no real financial or family relocation
Reno, NV, to explore inculcation of a
                                                support for the deployed military
block of instruction concerning this
                                                member. The lease termination

Page 44
Ser vicemembers Civil Relief Act (SCRA)

protection becomes illusory. This is           individually by a servicemember or jointly
clearly not Congress’ intent.                  by a servicemember and a dependent or

Potential Solutions

Amend sec. 305 to clarify that the
section’s lease termination protection is
applicable to leases entered into
individually by a servicemember or jointly
by a servicemember and a dependent or

Request the U.S. Department of Justice
and local U.S. Attorneys to bring action in
federal district court against any lessor
failing to terminate joint leases in which a
servicemember and dependent(s) are

Place any lessor off-limits to all DoD
personnel who engage in such practices
as being damaging to the welfare of
military personnel and their families. Also
place the lessor on the local installation
and DoD Armed Forces Disciplinary
Control Board Prohibited Business List
making a public media announcement
locally at the time such action is taken.

Recommended Resolution

Sponsor an ABA House of Delegates
resolution calling on the Congress to
amend sect. 305 to clarify that the
section’s lease termination protection is
applicable to leases entered into

                                                             Page 45
Ta x a t i o n

     Taxation of Servicemembers                 low altitude (HALO) flight are subject to
                                                taxation, there are also special tax
Federal, state and local tax laws
                                                exclusions provided in recognition of the
historically have been an integral part of
                                                special circumstances and mandatory
the management of military
                                                portability requirements that apply to
compensation. The Department of
                                                servicemembers in the performance of
Defense characterizes total military
                                                their duties. These special circumstances
compensation as consisting of a
                                                justify the non-taxability of pay during
servicemember’s basic pay plus non-
                                                service in a combat zone, tax-exempt
taxable allowances for housing and
                                                death gratuities paid to the survivors of
subsistence, and various associated
                                                members of the Armed Forces killed in
federal tax savings. Tax reductions have
                                                combat, family separation allowances on
been implemented to obtain significant
                                                account of overseas assignments and the
economic benefits as well as to satisfy
                                                above-the-line deduction for travel
social and political goals in appreciation of
                                                expenses among other allowances. The
the sacrifices made by military men and
                                                General Accounting Administration has
women in providing security and
                                                calculated that there are more than 50 of
protection of the freedoms that are part
                                                these types of special pay incentives and
of our democratic society. Special
exclusions, credits and non-taxable
allowances for the military are to a
significant extent merely an alternative
                                                It is important that servicemembers are
means of compensation. Although
                                                not discriminated against because of
various non-taxable allowances such as
                                                special military conditions that are
the basic allowance for housing (BAH)
                                                beyond their control. Many provisions of
and basic allowance for subsistence (BAS),
                                                the Internal Revenue Code are designed
are non-taxable allowances and therefore
                                                to assure that military personnel are not
considered benefits to military
                                                disadvantaged because of their service in
servicemembers, the Department of
                                                the Armed Forces. For example,
Defense takes these non-taxable
                                                deadlines for filing tax returns, paying
allowances into account in measuring the
                                                taxes, filing claims for refund and taking
appropriateness of military compensation
                                                other action with the Internal Revenue
in comparison to civilian pay.
                                                Service are automatically extended for
                                                servicemembers serving in a combat
                                                zone, or in a qualified hazardous duty
Although basic pay plus additional special
                                                area or other designated overseas
pays for hazardous duties, such as for
diving duties, hardship duties, foreign
duties, or incentive pays for high altitude/

Page 46
Ta x a t i o n

Constant vigilance is necessary to assure    The American Bar Association can take
that military servicemembers are not         an active role in reviewing federal, state
disadvantaged by the application of          and local tax laws to insure that
substantive tax rules. There are many        unfairness is not caused in the application
substantive tax provisions that              of tax laws as a result of special
inadvertently impose additional burdens      conditions and mandatory portability
on servicemembers. For instance, section     obligations of servicemembers in the
121 of the Internal Revenue Code             Armed Forces. Nationally and through
permits married couples to exclude up to     related state and local bar associations
$500,000.00 of gain on the sale of a home    special efforts need to be undertaken by
that they have owned and lived in during     the American Bar Association members
two out of five years. The Military Family   to assure that the states, commonwealths
Relief Act of 2003 now extends the five      and territories do not discriminate against
year rule for a ten year period for          military and that the laws are applied in an
servicemembers who are called away           administrative manner that is fair and just
from home on mandatory orders. Many          to those military members who are
low income military servicemembers are       burdened by commitments of military
still precluded from obtaining the benefit   service for the United States.
of the earned income tax credit, the
additional child credit or the opportunity
to contribute to individual retirement          Tax Successes in 2003 and 2004
accounts or Roth IRAs because of the         There have been some significant
application of the combat zone tax           advances in tax relief for servicemembers
exclusion.                                   in 2003 and 2004.

It is also essential that state,             The Servicemembers Civil Relief Act of
commonwealth and territory tax laws are      2003 provided a comprehensive overhaul
administered fairly and equitably to         of laws designed to provide greater civil
military personnel, their spouses and        relief to members of the Armed Forces.
other dependents. Congressional passage
of the Servicemembers Civil Relief Act of
2003 was necessary to prohibit almost        Servicemembers’ Civil Relief Act, 50
one-half of the states from using military   U.S.C. App. § 501, et seq. (108 P.L. 189,
compensation of non-resident                 December 19, 2003), section 510 assures
servicemembers to increase tax rates         that a servicemember is entitled to a
applied to spouses within the tax            deferment from the collection of income
jurisdictions. 50 U.S.C. App. § 511(b)       taxes before and during military service
(2003).                                      for a period of up to 180 days after

                                                            Page 47
Ta x a t i o n

termination of military service if the         Among the forms of relief included in the
servicemember’s ability to pay income          Act were an increase in death benefits
taxes is materially affected by military       provided for survivors of servicemembers
service.                                       to $12,000.00 which is now tax-exempt;
                                               an expansion of the $250,000.00/
                                               $500,000.00 tax exclusion for
Section 511(d) provides that a tax             homeowners on the sale of a residence
jurisdiction may not use the military          to ten years; the granting of an above-the-
compensation of a non-resident                 line deduction for national guard
servicemember in order to increase the         members and reservists on temporary
tax liability imposed on other income          duty assignments more than 100 miles
earned by the non-resident                     from home; and a tax exclusion based for
servicemember or his or her spouse who         dependent daycare assistance on military
is subject to tax by the jurisdiction.         posts. These and other changes in the
                                               Act provide evidence to the military that
                                               Congress is cognizant of the special tax
Although a state may not tax an
                                               burdens imposed on military personnel.
automobile (or other personal property)
located in the state for a servicemember
serving in compliance with military orders     Additional proposed relief is found in
when the automobile is registered in           Congressional Senate Bill 2419, the Tax
another state under Section 511, a             Relief for Americans in Combat Act
problem remains in some tax jurisdictions      introduced on May 13, 2004 by Senators
which impose a property tax on property        Mark Pryor (D.Arkansas), Max Baucus
jointly owned by the servicemember and         (D.Montana), and Charles Grassley
a spouse located in the state.                 (R.Iowa). This Bill would eliminate
                                               inadvertent discrimination that hinders
                                               servicemembers serving in combat zones
A second major accomplishment was the
                                               or undertaking follow-on hospital care
enactment of the Military Family Tax
                                               from obtaining the benefits of the earned
Relief Act of 2003 (H.R. 3365). Congress
                                               income tax credit and additional child tax
is commended for providing a
comprehensive set of relief provisions
aimed at eliminating inadvertent
unfairness in the application of regular tax     The Armed Forces’ Tax Council
laws and expanding special relief to those
                                               A special commendation is given to the
servicemembers and the survivors
                                               Armed Forces’ Tax Council. It exists to
resulting from service in combat zones
                                               promote the uniform application of tax
and resulting from terrorist activities.

Page 48
Ta x a t i o n

laws and regulations within the                rulings and comments within the United
Department of Defense as an employer           States Treasury Department, Internal
and to servicemembers as taxpayers. It         Revenue Service, and State Taxation
coordinates matters affecting federal,         Authorities. It is pro-active in its efforts
state, local and foreign tax liabilities of    to see that tax laws applied to
members of the Armed Forces. The               servicemembers are fair, just and
Council oversees the operation of              administered efficiently. The Council
military tax programs and acts as an           provided substantial assistance to Internal
effective conduit for Internal Revenue         Revenue Service in the development of
Service outreach to military personnel         Publication 3, Armed Forces’ Tax Guide
and their families world wide.                 in 2004, and coordinated efforts within
                                               the military to educate servicemembers
                                               on the full tax benefits available under the
The Council consists of an executive           Military Family Relief Act of 2003, and the
director whose office is in the Office of      Servicemember Civil Relief Act of 2003.
the Assistant Secretary of Defense             Council members provided assistance in
(Military Personnel Policies), and includes    the development of the specific tax
members from the Army, Air Force,              recommendations developed in this
Navy, Marine Corp., and Defense Finance        report. It is recommended by the
and Accounting Service, the United States      American Bar Association through its
Coast Guard, the National Oceanic and          Section of Taxation promotes a positive
Atmospheric Agency, and the Public             working relationship with the Armed
Health Service. Present members are            Forces’ Tax Council and that a liaison be
listed in Exhibit T-1. Each member of the      established with the Armed Forces’ Tax
Council is an attorney and most members        Council from the Section of Taxation.
have Master of Laws Degrees in Taxation.

                                                 Internal Revenue Service Armed
In executing its responsibilities to prepare     Forces’ Tax Guide, Publication 3
interpretations of state laws, regulations
                                               The Treasury Department and Internal
and duties as requested within the
                                               Revenue Service have prepared a 34-page
Department of Defense and related
                                               Internal Revenue Service Publication
agencies, it provides advice on tax policies
                                               providing educational assistance to
that affect servicemembers and serves as
                                               members of the Armed Forces in the
a liaison to federal, state and local tax
                                               preparation of their Federal Tax Returns.
authorities. It reviews current and
                                               It is particularly helpful that the Armed
proposed Department of Defense and
                                               Forces’ Tax Guide already incorporates
military department publications and
                                               those changes made in the
regulations and responds to requests for

                                                               Page 49
Ta x a t i o n

Servicemembers Civil Relief Act of 2003
and Military Family Tax Relief Act of
                                                The American Bar Association Tax
2003. The prompt release of this Armed
                                                Section in 2004 prepared and released to
Forces’ Tax Guide in 2004 evidences the
                                                military facilities a brochure on a Military
intention of the Internal Revenue Service
                                                Family Tax Relief Act of 2003 to prompt
that members of the Armed Forces be
                                                servicemembers to take full advantage of
given prompt attention and guidelines
                                                the tax refund relief provided under the
that will enable them to comply with their
                                                Act (See Appendix). This type of active
own federal tax obligations. A copy of
                                                public service within the American Bar
the Internal Revenue Service Publication 3
                                                Association is to be encouraged.
Armed Forces’ Tax Guide is attached in
the Appendix.
                                                The American Bar Association Tax
                                                Section reports current tax information
          Education for the Military
                                                relevant to military personnel on its
Through the Armed Forces’ Tax Council           website:
and the various military department legal
assistance programs, an extensive and
effective educational program exists
within the military system. Military            Additional information is available
assistance in developing the prompt             through the website of the American Bar
release of the Internal Revenue Service         Association Standing Committee on Legal
Publication Armed Forces’ Tax Guide             Assistance for Military Personnel (LAMP)
supports this conclusion. Military legal        at:
assistance personnel have also worked
extensively with the Wage and
Investment Division of the Internal
Revenue Service to provide VITA
                                                Other helpful internet sites include:
(Voluntary Income Tax Assistance)
training for legal assistance officers within;
the military establishment. The American
Bar Association Tax Section has worked          Taxes/0,13397,82,00.html; and
with the Armed Forces’ Tax Council and
the Internal Revenue Service to maximize
assistance by Internal Revenue Service
experienced trainers to provide this
                                                Tax education is also recommended
essential training within the military
                                                within the American Bar Association.
                                                The Tax Section has developed a panel

Page 50
Ta x a t i o n

that will be conducted with                   1.       Earned income tax credit
representatives of the Armed Forces’ Tax      negatively impacted for servicemembers
Council on tax benefits for the military in   assigned to combat zones;
2004. The Tax Section is currently in the
process of establishing a separate military
taxation committee within its committee       2.      Child tax credit negatively
structure. It is believed that the            impacted for servicemembers assigned to
development of this committee will            combat zones;
enable the Tax Section to more
effectively provide support for the
                                              3.        Income tax exclusion for
military and coordinate efforts with the
                                              servicemembers who die while in a
Department of Defense, the military
                                              combat zone or incurred in a terrorist or
departments, the Treasury Department
                                              military action;
and the Internal Revenue Service to
promote tax laws that are fairly and
equitably applied to military personnel.
                                              4.        Inclusion of combat wages in
                                              calculating contributions to individual
                                              retirement accounts and Roth IRA’s;
           State Tax Guides

The military services also provide a State
Tax Guide for assistance in the VITA/ELF      5.         Retroactive application of
programs. The State Tax Guide sets            prohibition against states using the
forth in summary a legal analysis of the      military compensation of a non-resident
state tax laws applicable to members of       servicemember to increase the tax
the Armed Forces. A copy of the 59-           liability of a residence spouse subject to
page 2004 edition of the State Tax Guide      state tax jurisdiction; and
is located in the attached Appendix.
Also in the Appendix is the Military
Taxes, State-by-State Guide provided          6.      State taxation of personal
through the efforts of the Armed Forces’      property jointly owned by a non-resident
Tax Council.                                  servicemember and spouse subject to
                                              state taxing jurisdiction.

   Specific Tax Recommendations
Immediately following and included as a
part of this report are recommendations       It is recognized that the Armed Forces
on the following specific subjects:           have a significant and effective monitoring
                                              entity through the Department of

                                                              Page 51
Ta x a t i o n

Defense Armed Forces’ Tax Council. It is         pro-active role in providing publications
pro-active in fulfilling its mission to obtain   and programs to assist servicemembers
equitable military tax relief through            and their advisors of the special benefits
Congress, the Legislative branches of the        and burdens that apply to them as
states and administrative agencies of the        members of the Armed Forces.
federal, state and local governments.
The military has a strong internal tax
support system through the use of the
legal assistance offices within the                              Issue
Department of Defense and the military
                                                 Servicemembers should not be deprived
                                                 of the benefits of the earned income tax
Nonetheless, the American Bar                    credit for income tax purposes because
Association should maintain an active role       of service in combat zones.
as an organization and through its
members to support the military
establishment. Individual members of the         Description
American Bar Association, the Board of
                                                 Federal income tax laws permit low
Governors and representatives of the
                                                 income servicemembers to obtain a
House of Delegates can exert a positive
                                                 refundable tax credit on earned income if
influence on the state tax authorities to
                                                 they satisfy certain adjusted gross income
promote tax laws that do not
                                                 limitations. 26 U.S.C. § 32. The amount
discriminate against military personnel
                                                 of the earned income tax credit (“EITC”)
assigned through military orders in the
                                                 is increased for low income wage earners
respective state and local tax jurisdictions.
                                                 who have one or more children. The
The American Bar Association can take
                                                 EITC applies to earned income of
positive steps to assure that unfairness is
                                                 servicemembers when their principal
not caused by the application of tax laws
                                                 place of abode is within the United States
to servicemembers. This assistance may
                                                 or when they are stationed outside of the
also include coordination with
                                                 United States on extended active duty for
governmental agencies to insure that the
                                                 more than 90 days or for an indefinite
enforcement of tax laws and collection of
                                                 period. 26 U.S.C. § 32(c)(4).
revenue is administered in such a manner
as to not unduly burden military men and         The amount of the EITC that the
women who cannot meet normal                     servicemember taxpayer is entitled to
procedural performance standards that            increases with the amount of wages
are applied to civilian taxpayers. Finally,      earned within certain ranges. The
the American Bar Association can take a          maximum EITC available in 2004 is $2,601

Page 52
Ta x a t i o n

for a qualified wage earner with one child      areas lose the benefit of earned income
and $3,400 for a qualified wage earner          tax credits and refunds that were
with two or more children.                      otherwise available to them prior to their
                                                assignment to combat zones. The
                                                amount of EITC lost will be affected by
Significantly, the EITC can result in the       the length of employment within the
payment of a “refund” check to the              combat zone or hospitalization. Most
servicemember, even when no taxes have          affected servicemembers are those
been paid.                                      serving in a combat zone for longer
                                                periods, with lower pay grades, married
                                                with children, and with little or not
The Internal Revenue Code (the “Code”)
                                                investment or spousal income. They are
measures the available refundable EITC by
                                                the dedicated servicemembers who could
the amount of the servicemembers
                                                most benefit from the EITC and refund
earned income wages “but only if such
                                                which has been denied them because of
amounts are includable in gross income
                                                the combat zone gross income exclusion
for the taxable year, . . . .“ 26 U.S.C. § 32
                                                definition. The General Accounting
(c)(2)(A)(i). Enlisted personnel and
                                                Office has represented that this adverse
warrant officers are not eligible to obtain
                                                impact is unintended.
an EITC credit or refund that is
attributable to any wages received for
service in a combat zone or during              Potential Solutions
hospitalization resulting from wounds,
                                                It is recommended that section 32(c)(2)
disease or injury incurred in a combat
                                                (B) of the Internal Revenue Code be
zone, since earned income does not
                                                amended to provide that any amount
include compensation received for any
                                                excluded from gross income for
month served in a combat zone or during
                                                servicemembers for service in a combat
hospitalization resulting from wounds,
                                                zone or during resulting hospitalization
disease or injury incurred in a combat
                                                under § 112 will be treated as earned
zone. 26 U.S.C. § 112(a). This exclusion
                                                income for purposes of the earned
from gross income may also cause an
                                                income tax credit.
increase in EITC benefits available to
some senior ranking enlisted persons and
officers by reducing their available earned
                                                On May 13, 2004, Senators Mark Pryor
income into an eligibility range.
                                                (D.Arkansas), Max Baucus (D.Montana)
                                                and Charles Grassley (R.Iowa) introduced
                                                Senate Bill 2419, the “Tax Relief For
The effect is that thousands of
                                                Americans in Combat Act” seeking to
servicemembers assigned to combat zone

                                                               Page 53
Ta x a t i o n

amend the Internal Revenue Code to
count wages earned in combat zones in                          Issue
calculating the earned income tax credit.

                                             Servicemembers should not be deprived
                                             of the benefits of the child tax credit for
The Armed Forces Tax Council has
                                             income tax purposes because of service
provided leadership in promoting
                                             in combat zones.
legislation to resolve the above combat
zone problem.


Recommended Solution                         Federal income tax laws permit low
                                             income servicemembers to obtain a
The American Bar Association should
                                             refundable child tax credit when they
actively support the “Tax Relief For
                                             satisfy certain adjusted gross income
Americans in Combat Act” legislation or
                                             limitations. 26 U.S.C. § 24.
any similar proposals that will treat
excluded gross income under § 112 of the
Code as earned income for purposes of
                                             Servicemembers who have one or more
the earned income tax credit.
                                             qualifying children may be entitled to a
                                             child tax credit of $1,000 in 2004. The
                                             amount of the credit will be adjusted in
Upon enactment, the American Bar
                                             future years.
Association should actively assist the
Office of the Commissioner, Wage and
Investment Division of the Internal
                                             A portion of the child tax credit is
Revenue Service in developing prompt
                                             refundable to the taxpayer, regardless of
administrative guidance to implement the
                                             the amount of taxes paid. In 2004, the
enacted legislation for the assistance of
                                             child tax credit is refundable to the
military personnel.
                                             extent of 10% of the taxpayers’ earned
                                             income in excess of $10,000 as adjusted
                                             for inflation after 2001. The amount was
Any such legislation and administrative
                                             increased to $10,500 in 2003. The
application should have retroactive effect
                                             percentage is increased to 15% in 2005
so as to permit refunds for all open tax
                                             and thereafter. 26 U.S.C. § 24(d).
years for which the statute of limitations
has not expired.

                                             Servicemembers are not currently eligible
                                             to obtain the benefit of a refundable child

Page 54
Ta x a t i o n

tax credit to the extent of any wages        Senate Bill 2419, the “Tax Relief For
received for service in a combat zone or     Americans in Combat Act” seeking to
during hospitalization resulting from        amend the Internal Revenue Code to
wounds, disease or injury incurred in a      count wages earned in combat zones in
combat zone, since earned income does        calculating the child tax credit.
not include compensation received for
any month served in a combat zone or
during such hospitalization. 26 U.S.C.       The Armed Forces Tax Council has
§ 112(a). The effect is that                 provided leadership in promoting
servicemembers assigned to combat zone       legislation to resolve the above combat
areas lose the benefit of child tax credit   zone problem.
refunds that were otherwise available to
them prior to service within combat
zones. The amount of child tax credit
lost will depend on the length of            The American Bar Association should
employment within the combat zone.           actively support the “Tax Relief For
These dedicated low income                   Americans in Combat Act” legislation or
servicemembers are the ones who would        any similar proposals that will treat
most benefit from the child tax credit and   excluded gross income under § 112 of the
any refund which the combat zone gross       Code as earned income for purposes of
income exclusion definition reduces or       the child tax credit.

                                             Upon enactment, the American Bar
Potential Solutions                          Association should actively assist the
                                             Office of the Commissioner, Wage and
It is recommended that section 24(d)(1)
                                             Investment Division of the Internal
of the Internal Revenue Code be
                                             Revenue Service in developing prompt
amended to provide that any amount
                                             administrative guidance to implement the
excluded from gross income for
                                             enacted legislation for the assistance of
servicemembers for service in a combat
                                             military personnel.
zone or during resulting hospitalization
under § 112 be treated as earned income
for purposes of the child tax credit.
                                             Any such legislation and administrative
                                             application should have retroactive effect
                                             so as to permit refunds for all open tax
On May 13, 2004, Senators Mark Pryor
                                             years for which the statute of limitations
(D.Arkansas), Max Baucus (D.Montana)
                                             has not expired.
and Charles Grassley (R.Iowa) introduced

                                                            Page 55
Ta x a t i o n

                                               estate. In addition, any unpaid taxes,
                                               interest and penalties for prior tax years
                                               of the decedent is forgiven. 26 U.S.C.
                                               § 692(a)(2). This combat zone tax
Servicemembers who die as a result of          abatement may also apply to
service in a combat zone or otherwise          servicemembers who are serving outside
due to a terrorist or military action          the combat zone if the service is in direct
should be entitled to have income taxes        support of military operations in the
waived for both the taxable year of death      combat zone and qualifies the members
and for the immediate preceding year           for special military pay for duty subject to
under Internal Revenue Code section            hostile fire or imminent danger.

                                               In comparison, any military member or
Description                                    civilian employee of the United States
                                               who dies as a result of a terrorist or
Federal income tax laws establish a
                                               military action is forgiven any income tax
minimum two-year tax waiver period for
                                               liability for the taxable year in which the
members of the United States armed
                                               person dies and for the preceding taxable
forces whose death occurs in a terrorist
                                               year before the year in which the wounds
or military action, but sets a different set
                                               or injuries were incurred. 26 U.S.C.
of standards for service members whose
                                               § 692(c).
death occurs while serving in a combat
zone. 26 U.S.C. § 692.
                                               Thus, if a servicemember died in 2004 for
                                               injuries suffered in a terrorist attack in
If a member of the armed forces dies
                                               2003, the person’s tax liability is forgiven
while on active duty in a combat zone or
                                               for years 2002, 2003 and 2004. Tax
as a result of wounds, disease or injuries
                                               refunds are permitted for each year for
occurred in a combat zone, the
                                               which taxes have been previously paid. If
decedent’s income tax liability is forgiven
                                               a servicemember died in a hospital in
for the taxable year in which death
                                               2004 from injuries received in 2003 after
occurred and for any earlier taxable year
                                               entry into a combat zone in 2003 taxes
that ends on or after the first day the
                                               previously paid by the servicemember for
member served in the combat zone.
                                               2002 are not forgiven.

Any tax that has already been paid for this
                                               The effect of the above rules is that a
period is refundable to the decedent’s
                                               servicemember whose death occurs in a

Page 56
Ta x a t i o n

combat zone is forgiven taxes for periods       manner as a servicemember who dies as a
commencing from the date of entry into          result of a terrorist or military action
the combat zone under § 692(a), while a         under § 692(c).
servicemember whose death occurs as a
result of a terrorist or military action
have income taxes forgiven for the year         Potential Solutions
prior to the year of death. 26 U.S.C.           Internal Revenue Code § 692(a) should be
§ 692(c).                                       amended by the addition of language that
                                                would provide that income taxes shall not
                                                apply with respect to any prior taxable
For purposes of § 692(c), the terms
                                                year in the period beginning the last
“terroristic or military action” mean any
                                                taxable ending before the taxable year in
“terroristic activity” which is indicated as
                                                which the wounds, disease or injuries
directed against the United States or any
                                                were incurred.
of its allies, and any “military action”
involving United States armed forces and
resulting from violence or aggression           In view of the ambiguity of whether
against the United States or any of its         §§ 692(a) and 692(c) are mutually
allies (or threat thereof). It does not         exclusive or may be aggregated, the
include training exercises. 26                  Treasury Department might issue
U.S.C. § 692(c)(2). Section 692 appears         guidance confirming that a military
to indicate that §§ 692(a) and 692(c) may       member who dies as a result of wounds,
be mutually exclusive remedies, but the         disease or injuries incurred in a “combat
language of the provisions is unclear. A        zone” as part of a “military action” may
member of the armed forces whose                have the maximum benefits of both
death results from serving in a combat          §§ 692(a) and 692(c).
zone under § 692(a) may also be a
member of the military whose death
occurred in a “military action” as              Recommended Resolution
contemplated under § 692(c). The tax
                                                The American Bar Association should
relief given in each subsection is different.
                                                actively encourage Congress to amend
It is believed that servicemembers who          the Internal Revenue Code to assure that
die as a result of wounds, disease or           servicemembers who die as a result of
injuries from service in a combat zone          wounds, disease or injuries incurred while
should, as a minimum, be entitled to tax        serving in a combat zone have income tax
forgiveness for the full year prior to the      forgiveness for at least the taxable year of
year in which the wounds, disease or            death and the immediately preceding
injuries were incurred in the same              taxable year, in a manner consistent with

                                                               Page 57
Ta x a t i o n

that treatment given to individuals who      income for the year.
die as a result of terrorist or military
                                             The maximum contribution that can be
                                             made to a traditional IRA and a Roth IRA
The American Bar Association should          in 2004 is $3,000. The amount will be
encourage the Treasury Department to         increased to $4,000 for 2005-2007. In
issue guidance, recognizing that the         the case of a traditional IRA, the
benefits under §§ 692(a) and 692(c) may      servicemember is entitled to a deduction
be aggregated.                               for the contribution to the traditional
                                             IRA, earnings (e.g., interest, dividends and
                                             asset appreciation) in the IRA are tax-
Any such legislation and administrative      exempt, but distributions are taxable
application should have retroactive effect   when made.
so as to permit refunds for all open tax
years for which the statute of limitations
has not expired.                             In the case of a Roth IRA, contributions
                                             are not deductible, but earnings are tax-
                                             exempt and later distributions are not

Servicemembers should be permitted to        The amount of allowable contribution to
include wages earned in combat zones in      a traditional Roth IRA is measured by
the calculation of contributions permitted   earned income that is included in the
for individual retirement accounts and       taxpayer’s gross income. Under the
Roth IRAs.                                   combat zone exclusion rules of the
                                             Internal Revenue Code, gross income
                                             does not include any compensation
                                             received by enlisted personnel and
Servicemembers may make contributions        warrant officers during any month in
to traditional individual retirement         which the member has served in a
accounts (“IRA”) and Roth IRAs to set        combat zone or was hospitalized as a
aside income for retirement. 26 U.S.C.       result of wounds, disease or injuries while
§§ 219, 408 and 408A. The right to make      serving in a combat zone for any period
a contribution and the amount of             up to two years after the date of
contribution available is conditioned upon   termination of combat activities in the
the servicemember receiving earned           combat zone. 26 U.S.C. § 112. Similar
income that is included in adjusted gross    rules apply to commissioned officers up

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to the maximum amount payable for              Potential Solutions
enlisted personnel.
                                               The Internal Revenue Code should be
                                               amended to treat wages earned by
                                               servicemembers for service in combat
As a result, tax exempt compensation
                                               zones or during hospitalization from
received by military personnel in combat
                                               related wounds, disease or injury
zones is not included in calculating the
                                               incurred in a combat zone as defined in
availability of contributions to traditional
                                               § 112 as includable compensation for the
or Roth IRAs and military personnel are
                                               purposes of calculating available
precluded from obtaining the retirement
                                               contributions to individual and Roth IRAs.
benefits of IRAs to the extent such
compensation is derived from service in
combat zones.
                                               Recommended Resolution

                                               The American Bar Association should
A young enlisted servicemember who             encourage Congress to amend the
serves an entire taxable year in a combat      Internal Revenue Code to assure that
zone or hospital from related injuries         wages earned by servicemembers in
would not have any reportable taxable          combat zones, as defined under § 112,
income that can be used as a base for          will be treated as eligible compensation
permitting an IRA contribution. In some        for the calculation of available
instances, such as where a servicemember       contributions for individual retirement
has an automatic monthly IRA deduction,        accounts and Roth IRAs.
the application of the combat zone
exclusion rules may result in the member
being subjected to an additional 6% tax        Any such legislation and administrative
penalty for having made an excess              application should have retroactive effect
contribution to the IRA. 26 U.S.C.             so as to permit refunds for all open tax
§ 4973.                                        years for which the statute of limitations
                                               has not expired.

The individual retirement account
provisions inadvertently discriminate
against servicemembers who are assigned
to combat zones and acts contrary to the
public policy of encouraging individuals to
set aside funds towards retirement.

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                                               The Servicemembers Civil Relief Act of
                   Issue                       2003 as enacted on December 19, 2003
                                               (“SCRA”) added § 511(d) to expressly
States should be obligated to apply            provide that “a tax jurisdiction may not
retroactive effect to § 511(d) of the          use the military compensation of a
Servicemembers Civil Relief Act that           nonresident servicemember to increase
prohibits states from using military           the tax liability imposed on other income
compensation of a nonresident                  earned by the nonresident
servicemember to increase the tax              servicemember or spouse subject to tax
liability imposed on a resident spouse         by the jurisdiction.”
subject to state tax in another
                                               This December 19, 2003, change was
                                               required because of the practice in many
Description                                    states to include the military income of
                                               nonresident servicemembers in
Consistent with prior law, the
                                               calculating the tax liability of the
Servicemembers Civil Relief Act of 2003
                                               members’ non-military source income
provides that the compensation of a
                                               and that of his or her spouse who is a
servicemember for military service shall
                                               resident subject to tax in a particular
not be deemed to be income for services
                                               state. Although the military income of
performed or from sources within a
                                               the servicemember remained nontaxable
United States tax jurisdiction if the
                                               in the state, by including the
servicemember is not a resident or
                                               servicemembers’ income in calculating the
domiciliary of the jurisdiction in which the
                                               tax liability of the nonmember spouse,
servicemember is serving in compliance
                                               states have been able to increase the
with military orders. Section 511(b),
                                               spouse’s tax bracket and therefore the
Servicemembers Civil Relief Act of 2003,
                                               tax rate applicable to the nonmember
50 U.S.C. App. § 571(b) (108 P.L. 189,
                                               spouse in the subject states.
December 19, 2003); formerly, The
Soldiers and Sailors Civil Relief Act of
1940, 50 U.S.C. App. § 574. Therefore,
                                               States that followed this practice, known
under present and prior law, state,
                                               as the “Kansas Rule” or the “California
commonwealth or territory taxing
                                               Method,” prior to the enactment of
authorities (the “States”) have been
                                               SCRA have been identified as including
prohibited from taxing wages of
                                               Arizona, Arkansas, California, Colorado,
nonresident servicemembers.
                                               Connecticut, Delaware, Hawaii, Iowa,
                                               Kansas, Maine, Massachusetts, Minnesota,
                                               Missouri, Montana, Nebraska, New

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Jersey, New Mexico, New York, North           a claim for refund or bring an action for a
Dakota, Ohio, Oklahoma, Oregon, Rhode         refund in a state jurisdiction would
Island, Utah and Vermont.                     remain open so long as the
                                              servicemember is on active duty.

The Revisions made by § 511(d) of SCRA
“apply in any case that is not final before   In view of the recent enactment of SCRA
the date of the enactment of this Act.”       on December 19, 2003, many states have
§ 3, HR 100, 108 P.L. 189 (December 19,       not yet implemented changes to their
2003). Therefore, each state taxing           laws and administrative practices as
authority is prohibited from applying the     required by § 511(d). It is also unknown
gross-up Kansas Rule/California Method        whether and to what extent such states
of taxing a resident spouse’s income for      will interpret § 3 of the enabling
any taxable year that was not closed          legislation as requiring retroactive effect.
before the date of enactment of SCRA,         Some states have statutory or
December 19, 2003.                            constitutional restrictions that need to be

It appears that all servicemembers and
their spouses who have paid taxes in any      The Armed Forces Tax Council,
state applying the Kansas Rule/California     consisting of representatives of each of
Method are entitled to file claims for        the armed forces, has been actively
refunds in each such state for any open       engaged in contacting each of the affected
years under the state’s applicable statute    states and advising them of the changes
of limitations. In addition to applicable     and retroactive affects of the changes
state statute of limitations, § 206(a) of     required by § 511(d), and is monitoring
SCRA provides that the period of a            the actions taken by the respective states
servicemembers’ military service may not      to comply with federal law.
be included in computing any period
limited by law, regulation, or order for
the bringing of any action or proceeding      A number of the affected states are
in a court, or in any board, bureau,          already applying the new law
commission, department, or other agency       retroactively, or are enacting legislation
of a state (or political subdivision of a     that will permit retroactive applicator of
state), by or against a servicemember or      § 511(d), such as California, Maine,
the servicemembers’ heirs, executors,         Montana, New Jersey and Utah.
administrators or assigns. Under this
provision, the period of limitations for a
servicemember to file an amended return,

                                                             Page 61
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Potential Solutions and                       servicemember is serving in compliance
Recommendations                               with military orders, other than with
                                              respect to property within the members’
The American Bar Association should
                                              domicile or residence state, or with
assist in monitoring the efforts of the
                                              respect to property used in a trade or
affected states to amend their laws and
                                              business. 50 U.S.C. App. 571, 108 P.L.
encourage servicemembers and their
                                              189 (December 19, 2003). For this
spouses entitled to refunds to obtain
                                              purpose, the term “taxation” includes
refunds permitted by § 511(d) of SCRA.
                                              licenses, fees, or excises imposed with
                                              respect to motor vehicles and their use, if
To the extent that states fail to modify      the license, fee or excise is paid by the
their laws to comply with the required        servicemember in the servicemembers’
changes, then efforts should be               state of domicile or residence. 50 U.S.C.
undertaken to encourage the United            App. 571(e)(2).
States Department of Justice, respective
state attorneys general or other
                                              Under this provision, a nonresident state
appropriate legal authorities to take
                                              may not impose a motor vehicle tax on a
administrative or judicial action to
                                              servicemember who owns a car
enforce § 511(d).
                                              registered in another state. However,
                                              when a servicemembers’ spouse resides
                                              in a state and jointly owns a vehicle with
                                              the nonresident servicemember, some
                                              states will impose a tax on the jointly
States should not tax personal property       owned vehicle that is located in the taxing
located in the state that is owned jointly    state. Such states may exert taxing
by a nonresident servicemember and a          jurisdiction on motor vehicles jointly
spouse who is subject to a taxing             owned, even if the servicemember is
jurisdiction within a state.                  within the state, on the premise that
                                              § 511(c) applies only to separately owned
                                              personal property. A common practice is
Description                                   for married couples to own motor
Pursuant to § 511(c) of the                   vehicles jointly to avoid the costs and
Servicemembers Civil Relief Act of 2003       inconvenience of probate for death
(“SCRA”), the personal property of a          transfer purposes, and for ease of sale or
servicemember is not deemed to be             other disposition. The effect of states
located or present in, or have a situs for    taxing jointly owned personal property is
taxation in a tax jurisdiction in which the   to discriminate between motor vehicles in
                                              the state owned by a single

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servicemember and those motor vehicles        Potential Solutions
jointly owned by a servicemember and a
                                              Section 511 of SCRA might be amended
spouse. The practice of some states to
                                              to specifically apply to jointly owned
tax such jointly owned property is
                                              personal property.
inconsistent with the public policy and
purpose of § 511(c) of SCRA.
                                              A second solution is for individual states
                                              currently taxing jointly owned personal
This problem was remedied in California
                                              property to revise state laws to exempt
in 1999, in California Vehicle Code § 6701
                                              personal property jointly owned with a
that exempts motor vehicles registered in
                                              nonresident servicemember from state
a foreign state owned by members of the
armed forces on active duty or by a
spouse of an active duty member from
registering in the state, a vehicle in        Recommended Resolutions
California while the member is assigned
                                              The American Bar Association should
within the State on active duty. As a
                                              encourage an amendment to § 511(c) of
result the state ad valorem personal
                                              the Servicemembers Civil Relief Act to
property tax is not applicable to jointly
                                              expressly exempt such jointly owned
owned motor vehicles brought into the
                                              personal property from state taxation. In
state by a servicemember or spouse.
                                              addition, efforts should be undertaken to
                                              encourage all states to exempt such
Although § 511(c) does not expressly          jointly owned property from taxation
exempt jointly owned property between         within the states.
a nonresident servicemember and a
spouse from taxation within a state, § 501
(a)-(e) protects servicemembers from
state enforcement of taxes or
assessments on personal property by
permitting a stay or deferral from
enforcement during military service as to
property owned individually by the
servicemember or jointly by a
servicemember and dependents, including
a spouse and children and others more
than 50% financially supported individuals.

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               Overview                      contemplated. At the same time, the
                                             huge outpouring of patriotism following
The Global War on Terror has brought
                                             the atrocities of 11 September 2001 has
about the largest mobilization of National
                                             resulted in numerous employers
Guard and Reserve troops since the Gulf
                                             voluntarily making up the difference
War in 1990-91 and possibly since the
                                             between what their employees make on
Korean War. As of June 2004, over
                                             active duty and what they were making in
165,000 Guard and Reserve members
                                             their civilian jobs. However, the
were on mobilization orders. The total
                                             employer community is being burdened
number of Guard and Reserve personnel
                                             to a greater extent than ever before by
who have been mobilized since the
                                             the requirements of USERRA. In many
attacks on the United States in September
                                             cases, the employer will need to replace
2001 exceeds 300,000. Additionally,
                                             absent Guard and Reserve personnel with
unlike most prior mobilizations, the call-
                                             new employees, who the employer may
ups in this war are for periods of up to
                                             have to lay off when the veteran returns
two years, and some units have already
                                             from active duty.
been mobilized once for Operation
Enduring Freedom (OEF, the war in
Afghanistan) and a second time for
                                             Within this context, the Subcommittee
Operation Iraqi Freedom (OIF, the war in
                                             on USERRA has evaluated literally
Iraq). The extensive reliance on Guard
                                             hundreds of real-world issues that have
and Reserve troops for long-term
                                             arisen and continue to arise under
mobilizations is expected to continue
                                             USERRA and offers this summary of the
indefinitely with more units receiving
                                             major problem areas with suggestions on
warning orders on a monthly basis.
                                             how the ABA might lend its support to
                                             rectifying some of the problem areas.

The Uniformed Services Employment and
Reemployment Rights Act (USERRA) was                 Summary of USERRA
enacted in 1994, after the large-scale                   Problem Areas
mobilizations brought about by the Gulf
                                             Although USERRA has functioned well in
War in 1990-91. USERRA updated and
                                             the vast majority of cases since the Global
vastly improved the Veterans’
                                             War on Terror began in 200114, a number
Reemployment Rights law (VRR), which
                                             of real-world problems that were not
dated from 1940. The huge numbers of
                                             contemplated by the drafters of USERRA
Guard and Reserve personnel now being
                                             have arisen. In general terms, they fall
mobilized for the Global War on Terror
                                             into the following areas:
are creating issues applying USERRA in
areas that had not been previously

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1. Civil service employees who miss           7. Few private attorneys will take
promotion examinations while away on          USERRA cases against private employers
military duty are potentially missing out     since they generally do not involve
on promotion eligibility for several years.   substantial sums of back pay and there
                                              are appellate decisions holding that an
                                              employer who settles short of trial
2. Employees for whom performance             cannot be compelled to pay the veteran’s
bonuses comprise a substantial portion of     attorney fees.
their compensation are being effectively
penalized upon their return as a result of
their absence while in military service.      8. The USERRA requirement to
                                              accommodate returning veterans who
                                              have suffered service-connected
3. The Department of Labor has not            disabilities has yet to be tested.
promulgated regulations on
implementation of USERRA, despite a
requirement in the 1994 statute that it do        Discussion of Problem Areas

4. The Department of Labor – Veterans’
Employment and Training Service (DoL-
VETS), is not seen as an aggressive           Civil service employees who miss
advocate for the returning veteran.           promotion examinations while away on
                                              military duty are potentially losing
                                              promotion eligibility for several years.
5. The Office of Special Counsel in the
Office of Personnel Management does not
function as USERRA contemplated that it       Discussion
would.                                        Large numbers of the Guard and Reserve
                                              personnel being mobilized are policemen
                                              and fireman, or other state, county and
6. In those situations in which it is
                                              municipal employees covered by various
necessary for the Department of Justice
                                              sets of civil service rules and regulations.
to bring an action on behalf of a veteran
                                              Most promotions in such employment
because of the Eleventh Amendment, the
                                              settings are based on test scores, usually
local United States Attorneys offices are
                                              combined with longevity and fitness
not generally receptive to acting as
                                              evaluations. When Guard/Reserve
counsel for the veteran.
                                              personnel are mobilized, they are not

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present for testing and therefore are          Recommendation
missing out on entire promotion cycles.
                                               The Department of Labor should be
When they return, they are being told,
                                               encouraged to recommend an
“Sorry, you missed the test. Wait until
                                               amendment to USERRA providing that
the next testing cycle to compete for
                                               mobilized Guard/Reserve personnel in
                                               non-combat areas should be allowed to
                                               take civil service tests proctored by
                                               military testing personnel. Those
Some jurisdictions have offered to send
                                               mobilized personnel in combat zones
the promotion test materials to the
                                               should be deferred from testing until
military member, with the exam being
                                               their return to civilian life and their test
proctored by an officer at the deployed
                                               scores on the delayed examinations
member’s location. This procedure, at
                                               slotted into the promotion scores and
least in one specific case in Massachusetts,
                                               cycle, regardless of when they test.
has led to litigation being filed by other
individuals complaining that the military
member had an advantage when he took
the test in Afghanistan. An amazing claim,                     Issue
but litigation nonetheless. However, the
purpose behind USERRA is to preserve           Employees for whom performance
the employment rights of the mobilized         bonuses comprise a substantial portion of
Guard/Reserve member so that he/she            their compensation are being effectively
can concentrate their full energies on the     penalized upon their return as a result of
military mission. Do we really want civil      their absence while in military service.
service testing (and the study preparation
necessary with it) to be going on in
combat zones? Probably not.                    Discussion

                                               USERRA did not contemplate the all-too-
                                               common situation in the workplace today
Potential Solutions
                                               in which a substantial portion of an
Delay all civil service testing until the      employee’s compensation (especially for
return of all mobilized Guard/Reserve          executives) is made up of annual bonuses,
members.                                       frequently tied to employee performance.
                                               When a Guard/Reserve member misses
                                               all or most of a year and returns to the
Allow the member to make up the test
                                               civilian job, they are frequently being told
upon return and slot them into the
                                               that they are ineligible for a bonus since
promotion list wherever they score.
                                               they had not been at the company for all

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or much of the “bonus year.” The only        Discussion
reason for their absence was military
                                             38 U.S.C. §4331(a) provides that the
                                             Secretary of Labor (in consultation with
                                             the Secretary of Defense) may prescribe
                                             regulations implementing USERRA. Such
In most companies, the good performers
                                             regulations would provide guidance to
are the same people year after year.
                                             investigators for the DoL Veterans’
There is no valid reason to assume that if
                                             Employment and Training Service (DoL-
the employee had been present he/she
                                             VETS), as well as persuasive grounds for
would suddenly have become a
                                             ESGR ombudsmen and private counsel to
completely useless employee, not entitled
                                             negotiate with employers on settling
to a bonus.
                                             USERRA claims quickly and efficiently.
                                             The problem is that for the DECADE
Recommended Solution                         since the 1994 enactment of USERRA, the
                                             DoL has not promulgated these
Average the employee’s bonuses for the
three years prior to military service and
pay a bonus based on that past
performance.                                 Recommendation

                                             ABA leadership could be of immense
The regulations that DoL should              assistance by helping to urge the
promulgate could cover this topic            Secretary of Labor to complete and
without additional statutory modification.   promulgate these important regulations.
See recommendation immediately below.

                 Issue                                      Issue

The Department of Labor has not              The Department of Labor – Veterans’
promulgated regulations on                   Employment and Training Service (DoL-
implementation of USERRA, despite a          VETS), is not seen as an aggressive
requirement in the 1994 statute that it do   advocate for the returning veteran.

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When a veteran returns to his/her civilian                   Issue
employer, they need to get back to work
immediately. The statute provides that
the employer is obligated to immediately      The Office of Special Counsel in the
reinstate the returning veteran. When         Office of Personnel Management does not
disputes arise, USERRA contemplates an        function as USERRA contemplated that it
initial investigation by DoL-VETS, after      would.
which the claim may go into litigation.

The investigations by DoL-VETS, in many       38 U.S.C. §4324 provides that an
cases, drag on literally for years. All too   aggrieved employee of a Federal
often, the investigator simply accepts the    executive agency cannot sue the
employer’s explanation of why the             Government for a USERRA violation.
veteran is not re-hired, and the file is      Rather, they must file a complaint with
closed. All the veteran has done is waste     the Merit Systems Protection Board. The
time. The percentage of DoL-VETS              Office of Special Counsel in the Office of
investigations that result in findings in     Personnel Management may represent
favor of the veterans are miniscule in        such employees before the MSPB.
comparison to the number of complaints        However, the Office of Special Counsel
that are filed.                               does not do so and it should. A variety
                                              of reasons are given as to why the OSC
                                              does not function as USERRA directs:
                                              lack of funding, lack of personnel being
As with the issue immediately above, this     two of the principal reasons. The fact
is an ideal situation in which ABA            remains, however, that the OSC simply
leadership could provide another voice        does not bring MSPB complaints on behalf
urging the Secretary of Labor and the         of USERRA complainants.
Assistant Secretary for VETS to
emphasize the need for speedy resolution
of these investigations and a somewhat        Recommendation
more aggressive posture by the                The ABA may help to determine why the
Department in favor of the veterans and       OPM’s Office of Special Counsel does not
protection of their reemployment rights.      bring these MSPB complaints on behalf of
                                              returning veterans who have meritorious
                                              claims. The OSC’s policy position
                                              essentially forces federal employees to

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hire private counsel to bring their MSPB       money.
claims. If no satisfactory reason is
discovered, the could be brought to the
attention of Congress and other                Recommendation
legislators.                                   Both the Secretary of Labor and the
                                               Attorney General should know that the
                                               ABA considers enforcement of these 11th
                   Issue                       Amendment-required claims through suits
                                               brought by the United States Attorneys
                                               of critical importance. These actions
In those situations in which it is necessary
                                               need to be prosecuted. Without the
for the Department of Justice to bring an
                                               cooperation of the local United States
action on behalf of a veteran because of
                                               Attorneys to actually bring and prosecute
the Eleventh Amendment, the local
                                               these suits, USERRA becomes a
United States Attorneys offices are not
                                               meaningless statute for some of our
generally receptive to acting as counsel
                                               veterans. Their only remedy is a suit
for the veteran.
                                               brought in the name of the United States
                                               ex rel the veteran and, in many cases, the
Discussion                                     United States Attorneys are uninterested
                                               in the additional workload for their
Despite an amendment to 38 U.S.C.
                                               offices that such litigation would generate.
§4323 to provide that actions against
states as employers may be brought in
state court in accordance with state law,      Although the Federal Government works
there are a number of states in which the      well implementing programs for large
defense of sovereign immunity prevents         numbers of people, when it gets down to
private claims. Those cases must then be       individual cases involving individual
brought by the United States on behalf of      employees and employers, the “system” is
the employee against the state-employer        frequently too large to realize the vital
in federal court. The process by which a       importance to a single veteran of
file is referred from DoL through the          enforcement of his/her re-employment
Department of Justice and then down to         rights. A gentle “nudge” from ABA
a local United States Attorney is              leadership and of the Labor and
extremely cumbersome and time-                 Employment Law Section leadership
consuming. Additionally, the local United      might assist in focusing the attention of
States Attorneys enjoy considerable            the Departments of Labor and Justice on
autonomy and do not always want or             these individual actions.
elect to bring another civil suit for what
might be a relatively small amount of

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                  Issue                        The Subcommittee does not feel that any
                                               legislation pertaining to mandatory
Few private attorneys will take USERRA
                                               payment of attorney’s fees by private
cases against private employers since they
                                               employers as part of any USERRA claim
generally do not involve substantial sums
                                               settlement would be feasible in the
of back pay and there are appellate
                                               current Congress. Therefore, the
decisions holding that an employer who
                                               Subcommittee simply brings this problem
settles short of trial cannot be compelled
                                               to the attention of the Working Group
to pay the veteran’s attorney fees.
                                               and recommends a redoubling of the
                                               LAMP Committee’s efforts at education
Discussion                                     in the area of USERRA for the bench and
                                               bar. In this education effort, additional
 Although there is an attorney’s fee
                                               cooperation with the Section of Labor
provision in USERRA (and claims brought
                                               and Employment Law would also be
against the Federal Government in MSPB
proceedings usually result in payment of
the claimant’s attorney’s fees in successful
claims), many attorneys are extremely
reluctant to take on USERRA claims
against private employers. There is
appellate law to the effect that if the        The USERRA requirement to
employer settles “on the courthouse            accommodate returning veterans who
steps”, no attorney’s fees must be             have suffered service-connected
awarded (since there is no judgment).          disabilities has yet to be tested.
Therefore, the attorney would have to be
paid by the employee, and frequently the
actual amount of past-due wages is not         Discussion
that great. Additionally, it is nearly         The war in Iraq and Afghanistan has
impossible to craft a fee agreement from       brought about more catastrophic injuries
future earnings in the event the claim is      to American servicemembers than at any
successful. Additionally, all the work of      time since the Viet Nam war. The
ESGR is geared toward settlement of the        amputation ward at Walter Reed Army
claims amicably without the need for           Medical Center is treating literally
litigation. DoL-VETS takes the position        hundreds of cases of single and double
that if the employee/claimant engages          amputees who have been wounded by
private counsel, they immediately close        improved explosive devices or other
their file.                                    causes. Although exact numbers are

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difficult to obtain, a proportionate         Recommendation
number of these wounded soldiers will be
                                             The Subcommittee does not recommend
Guard and Reserve troops, covered by
                                             any action at this time on this issue. The
the protections of USERRA.
                                             facts will have to play out for some time
                                             before it can be ascertained if there is
                                             actually a problem with employers not
The current provisions of USERRA allow
                                             being willing to either grant the wounded
for up to two additional years for
                                             veterans sufficient rehabilitation time, or
rehabilitation for a USERRA-covered
                                             not being willing to make reasonable
employee before he/she must return to
                                             accommodations for them upon their
work. Additionally, once that wounded
                                             return. However, if a problem does
employee returns to work, the employer
                                             present itself, the ABA should be
is required to make accommodations for
                                             proactive in urging the Department of
the wounded veteran, very similar to
                                             Veterans Affairs and DoL-VETS to make
what would be required with the
                                             special efforts to resolve the USERRA and
Americans With Disabilities Act.
                                             ADA-type claims of these veterans, to
                                             whom such a debt is owed.
One interesting problem that has arisen
involves new HIPPA guidelines on release
of patient identification information. The
Disabled Veterans of America, an
organization that has historically worked
with wounded veterans to insure they
receive the benefits to which they are
entitled, reports that they are being
denied identification of these wounded
veterans by military hospital personnel,
who are citing the privacy requirements
of HIPPA as the reason they cannot
identify the patients in the amputation
wards. This issue is currently being
worked in military legal and medical
channels, but illustrates new issues never
before encountered.

                                                            Page 71
Vo t i n g R i g h t s

                                               officials to voters failed to successfully
                                               navigate the three step process in order
                  Issue                        to be counted.

Members of both the National Guard and         Potential Solutions
the Reserve require improvements to
                                               The most modern solution is to establish
insure each respective absentee ballot is
                                               an electronic voting system for members
                                               of the National Guard and the Reserve.
                                               Considerable work was completed on
Description                                    this project; however, the Department of
                                               Defense canceled the Secure Electronic
In order for members of the both the
                                               Registration and Voting Experiment
National Guard and the Reserve to
                                               ("SERVE") because of concerns about the
successfully cast an absentee ballot, the
                                               security of the process. It is unknown
member must successfully navigate three
                                               whether SERVE is being modified to
time-consuming steps. First, the member
                                               alleviate those security concerns;
must request an absentee ballot from the
                                               however, electronic voting is clearly the
election official by forwarding an
                                               answer moving forward.
executed Federal Post Card Application
postcard. Secondly, the unexecuted
absentee ballot must travel from the           In the meantime, the Department of
election official to the member. Finally,      Defense needs to improve its efficiency at
the member must receive the ballot,            placing Federal Post Card Applications
execute it, and return it to the election      into the hands of its members and
official. Depending on the member’s            encourage its members to make timely
location, the process may take upwards         applications. Secondly, the Department
of forty-five (45) days to complete. These     of Defense needs to train its postal
three procedures are made all the more         service members to give priority to
difficult and time-consuming because they      moving both the applications and the
are done in the same manner as they            ballots. Finally, election officials need to
were done during World War II, via mail.       improve the responsiveness in printing
The potential for failure is significant and   and mailing absentee ballots.
unfortunately very real.

                                               Recommended Resolution
During a recent study of the 2002 general
                                               Sponsor an American Bar Association
election, nearly forty (40) percent of all
                                               House of Delegates resolution calling on
the absentee ballots mailed by election

Page 72
Vo t i n g R i g h t s

the States and the Department of
Defense to activate the Secure Electronic
Registration and Voting Experiment so
that members of both the National Guard
and the Reserve may effectively exercise
their respective right to vote.

                                            Page 73
M i s c e l l a n e o u s S t a t e L aw s , R e g u l a t i o n s

  Comparison of Selected Statutes              other. Most importantly each of these
                                               three states enables active military
The Working Group believed that
                                               personnel stationed within their
exploring some examples of state laws
                                               boundaries to purchase hunting and
and regulations in selected jurisdictions
                                               fishing licenses at the resident rate.
would help illustrate the problem many
                                               There are however, differences in the
servicemembers face when they
                                               extent of benefits each of these states
frequently move from duty station to
                                               provide to service members.
duty station.

                                               Rhode Island provides service members
The issues and statutes described below
                                               with the most extensive package of
were chosen simply for purposes of
                                               benefits. Rhode Island extends the
comparing and contrasting laws in a
                                               expiration of a hunting or fishing license
particular geographic region.
                                               issued to a service member who is called
                                               overseas to six months beyond the date
The Working Group recommends that              of the service member’s return from
greater uniformity among state laws            duty. Additionally, for service members
should be a high priority.                     and veterans, Rhode Island waives the
                                               requirement of a certificate of hunting
                                               competency which otherwise must
                Issue15                        accompany an application for a hunting
                                               license. Also, for veterans who are 100%
                                               disabled, Rhode Island does not charge a
There may be an inconsistency among the        fee for fishing or hunting licenses.
fifty states’ laws regarding the issuance of
hunting and fishing licenses to service
members that could cause complications         Massachusetts offers free group fishing
for service members who are frequently         licenses for use by patients in Veterans
transferred between the states.                Administration Hospitals (for groups of
                                               up to fifteen).

                                               Potential Solutions
Although this may be a problem among
other states, as between Connecticut,          Even though Connecticut, Massachusetts
Massachusetts and Rhode Island, by and         and Rhode Island each offer the basic
large the laws covering the issuance of        benefit of resident rate permits to service
hunting and fishing licenses to service        members, a further unification of the
members are substantially similar to each      package of benefits these states offer

Page 74
M i s c e l l a n e o u s S t a t e L aw s , R e g u l a t i o n s

could reduce the complications a service    Potential Solution
member may encounter after transferring
                                            Connecticut and Rhode Island could
between these states.
                                            enact legislation similar to that enacted in
                                            Massachusetts in order to compensate
                                            their veteran business owners for
                 Issue16                    sacrifices they made in the course of
                                            serving their country. Additionally, all
Businesses owned by veterans, Reservists    three states should consider extending
or National Guard members (especially       such a program to cover Reservist and
small businesses) have experienced          National Guard member owned
economic disadvantages in the               businesses.
marketplace relative to other non-veteran
owned businesses due to the disruption
of their businesses as a result of                          Issue17
deployment. Non-veteran, non-National
Guard member and non-Reservist
                                            Connecticut, Rhode Island and
business owners are not subject to
                                            Massachusetts do not all treat
deployment and hence are able to devote
                                            nuncupative, or soldier’s, wills in the same
more time to the development of their
                                            way. This inconsistent treatment of the
                                            subject may cause problems for service
                                            members who are frequently transferred
                                            between these states.

The deployment of a business owner can
greatly disrupt the operations and          Description
development of his or her business.
                                            The battlefield deathbed of a soldier is the
Massachusetts has in place a set of laws
                                            classic scenario that has been cited to
which are intended to offset the negative
                                            justify the acceptance of nuncupative wills.
impacts deployment may have had on
                                            It’s thought that in certain dire situations
veteran business owners and businesses.
                                            the normal formalities accompanying the
Massachusetts law mandates that 3% of
                                            creation of a will should be lessened.
state capital facility project contracts
                                            Blackstone made mention of nuncupative
must be awarded to veteran owned
                                            wills in his Commentaries on the Laws of
businesses. Neither Connecticut nor
                                            England and in some states this
Rhode Island has made such efforts to
                                            testamentary device survives to this day.
counteract the disadvantages that can
                                            Massachusetts uses Blackstone’s words
accompany deployment of business
                                            exactly and explicitly recognizes the

                                                           Page 75
M i s c e l l a n e o u s S t a t e L aw s , R e g u l a t i o n s

validity of nuncupative wills made by          duty19, preference for veterans for civil
soldiers in “actual military service.” 18      service jobs20, and credit for military
Rhode Island as well accepts the validity      service in retirement and pension plans.21
of nuncupative wills made by soldiers and      Georgia and Alabama also have laws
airmen in actual military service.             protecting private industry employees
Connecticut on the other hand only             who are called to active duty.22 Georgia’s
recognizes the validity of wills in writing    law regarding employment rights does
and does not recognize nuncupative wills.      not apply to individuals who are drafted
                                               or involuntary inducted into the military.23

Potential Solution
                                               The public office category includes
A unification of state law on this subject
                                               declarations that public officials have not
would circumvent the potential problem
                                               vacated or abandoned their offices when
of confusion for service members
                                               they are called to military duty.24 Georgia
transferred between these states and
                                               also provides that certain public officers
would simplify the judicial process of
                                               may qualify for reelection while on active
determining whether or not a service
member’s nuncupative will is valid.

                                               The professional licensing category
 Illustrative Study of Miscellaneous
                                               includes legislation delaying license
Statutes in Georgia, South Carolina,
                                               renewal fees or expiration for active
   and Alabama Affecting Military
                                               servicemembers.26 Georgia also gives
                                               additional points to veterans on most
The miscellaneous legislation falls into six   professional licensing exams.27
categories: (1) Employment; (2) Public
Office; (3) Professional Licensing; (4)
Court-related matters; (5) Motor Vehicle       The court-related category applies almost
and Insurance issues; and (6) Other.           exclusively to Georgia and Alabama. This
Overall, Georgia seems to have the most        legislation provides jury duty exemptions
protection for service members of the          for enlisted personnel28, continuances for
three states.                                  court proceedings involving those serving
                                               on active duty29, change of venue30, and
                                               immunity from arrest while attending
Legislation in the employment category         drill, parades or meetings.31 South
includes authorization for leave of            Carolina’s only provision in this category
absence and preservation of benefits for       deals with appointing a guardian ad litem
public employees who are called to active      for a person in military service.32

Page 76
M i s c e l l a n e o u s S t a t e L aw s , R e g u l a t i o n s

The motor vehicle and insurance category     are different from that same state’s
includes legislation providing fee waivers   regulations for the military dependent.
for vehicle registration , approving
special license plates honoring service
members34, and prohibiting cancellation      Some servicemembers and many military
or non-renewal of insurance coverage         dependents take a driving test and obtain
based on military status.35                  a new driver’s license in each new state of
                                             military assignment rather than follow the
                                             cumbersome regulations for renewal of
The last category contains miscellaneous     their expired driver license in their state
state laws affecting military personnel.     of domicile. Repeated driving tests are an
For example, Georgia recognizes              unnecessary burden, and obtaining a
commissioned officers as notaries public36   driver’s license in a state other than one’s
and Alabama prohibits disrespect toward      home state (state of domicile) may
troops who are on drill or performing        confuse the domicile issue.
other duties.37, 38

                                             Washington State provides “military
                   Issue                     expiration” protection to “eligible
                                             members of the armed services” including
                                             active duty personnel, the National
Servicemembers and their military
                                             Guard, and reservists called to duty for
dependents need uniform, statutory
                                             180 days or more. The military
protections regarding the expiration and
                                             dependent residing with the
renewal of driver’s license when assigned
                                             servicemember is also eligible to obtain a
outside their home state (state of
                                             Washington driver license with a military
domicile) pursuant to active duty military
                                             expiration. All states should follow the
orders and recognition in the state of
                                             protections Washington provides, and
duty assignment of their out-of-state
                                             Washington should extend their statutory
driver’s license.
                                             protections beyond the “Armed Services”
                                             to all servicemembers of the Uniformed
                                             Services and their family members.

Unfortunately, each state regulates
expiration and renewal of driver’s license   Recommend Resolution
for servicemembers and for their military
                                             Sponsor an ABA House of Delegates
dependents differently and for differing
                                             resolution calling on the States to enact
periods. Often the state regulations for
                                             legislation to protect driver’s license of
driver’s license for the servicemember
                                             servicemembers and their dependents.

                                                            Page 77
M i s c e l l a n e o u s S t a t e L aw s , R e g u l a t i o n s

Recommend language should read:
                                               Expiration and Renewal of
                                               Servicemember’s Military
                                               Dependent’s Driver’s License
Expiration and Renewal of
Servicemember Driver’s License
                                               A driver’s license shall continue in full
                                               force and effect if held by any person who
A driver’s license shall continue in full      is a military dependent of a
force and effect if held by any person         servicemember who:

                                               enters active duty in the Uniformed
enters active duty in the Uniformed            Service of the United States or the
Service of the United States or the            National Guard; or
National Guard; or
                                               is on active duty in the Uniformed Service
is on active duty in the Uniformed Service     of the United States or the National
of the United States or the National           Guard
                                               so long as the active duty service
so long as the active duty service             continues and the person is absent from
continues and the person is absent from        this state.
this state.

                                               A driver’s license shall continue in full
A driver’s license shall continue in full      force and effect for a period of 60 days
force and effect for a period of 60 days       upon the military dependent returning to
upon the servicemember returning to this       this state following the date of the
state following the date of the                servicemember’s discharge or separation
servicemember’s discharge or separation        from active service or return to this state,
from active duty service or return to this     unless the driver’s license is sooner
state, unless the driver’s license is sooner   suspended, cancelled, or revoked
suspended, cancelled, or revoked               according to law.
according to law.

                                               Proof Required
Proof Required

                                               To effect the protections of this section
To effect the protections of this section      the person shall register the military
the person shall register the military         status with the State and the State shall
status with the State and the State shall      issue a driver’s license marked “military”
issue a driver’s license marked “military”     with the expiration date of military
with the expiration date of military           service plus 60 days.
service plus 60 days.

                                               60 days prior to expiration the person
60 days prior to expiration the person         shall submit to the state a renewal
shall submit a copy of the military orders     application with a copy of the military
to active duty with a renewal application      orders to active duty, and the state shall
to the state, and the state shall renew the    renew the driver’s license for an
driver’s license for an additional 36          additional 36 months or until the release
months until the release or discharge          or discharge from active duty, whichever
from active duty.                              is shorter.

Page 78
M i s c e l l a n e o u s S t a t e L aw s , R e g u l a t i o n s

                                                The license authorizes the driver to drive
                                                vehicles of the same class he or she is
Active Duty and Military                        driving in this State.
Dependents Assigned in this State:
Persons Exempt from Licensing
                                                The provisions of this section shall not be
                                                affected by the servicemember’s,
                                                spouse’s, or dependent child’s ownership
The motor vehicle licensing requirements        of a motor vehicle registered in this State.
of this State do not apply to:

Any person in the service of the                                Issue
Uniformed Service of the United States,
including the reserve components,
possessing a valid military driver’s license
and operating an official vehicle on official
business.                                       Attorneys in the Uniformed Services
                                                merit the same recognition from their
A member of the Uniformed Services of           state bars for public service as the state
the United States who is serving on active      bar gives to other attorneys in public
duty, the spouse of a member of the
Uniformed Services of the United States         service.
who is accompanying such member on
military assignment to this state, and a
dependent child of such member of the
Uniformed Services who is at least
sixteen years of age, if:                       Description

                                                Defense if the country is a public service
The driver has with him or her a license        provided by the men and women in
to drive issued by the driver’s state of
domicile; and                                   uniform. Attorneys in the Uniformed
The license authorizes the driver to drive      Services serve their country and the
in his or her state of domicile, vehicles of
the class such driver is driving in this        public.
State; and

The driver’s right to drive has not been        The nature of the legal work provided
suspended or revoked.
                                                under the Uniform Code of Military
                                                Justice (UCMJ) is readily comparable to
For not more than 90 days after he or           that of a state judge, U.S. Attorney, state
she returns to the United States, a
member of the Uniformed Services of the         prosecutor, and pubic defender or
United States who is returning from
active duty outside the United States and       attorney with the Indigent Defense
any family member of the member who is          Agency. The legal services provided
returning from residence with the
servicemember outside the United States;        under 10 United States Code 1044 is
                                                equal to that of an attorney working for
                                                any pro bono legal program, e.g. Legal
The driver has with him or her a license
to drive issued by the Uniformed Services       Services or Legal Aid.
of the United States in a place outside the
United States; and

                                                               Page 79
  M i s c e l l a n e o u s S t a t e L aw s , R e g u l a t i o n s

Their government salaries are below the market       Guard on active duty on designated date of each
rate for attorneys in many areas of the country.     year, if other than in a career status.

Additionally, most attorneys in the Uniformed        Recommended language would read:
Services work far more than 40 hours per week        Members in good standing of the State Bar shall
and many work more than the 1,800 billable           not be required to pay membership dues for any
                                                     fiscal year if on active duty in the Uniformed
hours of many private law firms. An attorney in      Services of the United States or if on active duty
the Uniformed Services working longer hours          in the National Guard on (add a date, e.g. July 1)
                                                     of such year, provided that this paragraph shall
never reaps additional pay for the additional        not apply to members who have entered such
                                                     service as a career or to members in a temporary
hours worked.                                        training status.

The dollar value to the country for quality and                        Issue
quantity of legal work provided is equal to the
same work provided by attorneys in the private
sector – there is no question that the attorney in   Judge Advocates need their years of practice
the Uniformed Service is providing legal services    within the military services credited by every
pro bono – for the public good.                      state bar in the same manner the state bar
                                                     credits their civilian colleagues with “years of
Potential Solution

Encourage state bars to enact reduced fees or        Description
waive fees for registration and membership for
attorneys in the Uniformed Services in               Practice within the military service is as diverse
recognition of the public service these attorneys    and challenging as any civilian law practice. Those
provide. See West Virginia’s provision for fee       state bars which fail to recognize this fact and do
waiver.                                              not credit practice within the military service
                                                     towards years of practice for various benefits, are
                                                     in fact denying the high level of practice within
Encourage state bars to enact fee structures for     the military.
attorneys in the Uniformed Services reflecting the
ABA’s reduced fees for membership.
                                                     The discussion of the nature of the practice of
                                                     law within the Uniformed Services is covered in
Recommended Resolution                               the section regarding “Public Service” and again
                                                     here. The nature of the legal work provided
Sponsor an ABA House of Delegates resolution
                                                     under the Uniform Code of Military Justice
calling on the state bars to enact fee waivers for
                                                     (UCMJ) is readily comparable to that of a state
members of the Uniformed Services and National

  Page 80
           M i s c e l l a n e o u s S t a t e L aw s , R e g u l a t i o n s

judge, U.S. Attorney, state prosecutor, and
pubic defender or attorney with the Indigent
Defense Agency. The legal services provided
under 10 United States Code 1044 is equal to
that of an attorney working for any pro bono
legal program, e.g. Legal Services or Legal Aid.

Recommended Resolution

Sponsor an ABA House of Delegates resolution
calling on the state bars to enact legislation
recognizing judge advocates have the same years
of practice as their civilian counterparts within
that state for all rights and benefits.
Recommended language should read:

Persons who serve on active duty as judge
advocates and in a judge advocate billet in the
Unformed Services shall have those days of
active duty recognized as days of practicing law
for all purposes under the laws of this state.

                                                                    Page 81
  R e f e re n c e s

      See Appendix CD-ROM                                circumstances” or when the parties agree and the
                                                         court approves); In Interest of Gust 345 N.W.2d
                                                         42 (N.D. 1984)(barring telephone testimony of
                                                         mental health expert witness in a commitment
     for additional references and                       proceeding unless all parties agreed); Archem, Inc.
          electronic resources                           v. Simo, 549 N.E.2d 1054 (Ind. App. 1990)
                                                         (effective cross-examination frustrated by
                                                         allowing into evidence a video deposition subject
1. Marks, F. R., Military Lawyers, Civilian Courts and   to telephonic cross-examination of a party who
the Organized Bar, American Bar Foundation               could not attend the deposition); State ex rel.
(1972)(reprinted from 56 Mil. Law. Rev. 1(1972).         Juvenile Dept. of Multnoman County v. Gates, 86 Or.
                                                         App. 631, 740 P.2d 217 (1987)(in action to
2. Hansen, BGEN Donald, 112 Military Law                 terminate parental rights, it was error to allow
Review 3 (Spring 1986)                                   telephone testimony of out-of-state caseworkers
                                                         and a psychologist, absent a statutory or
3. See, DoD Defense Almanac at http://                   procedural rule allowing same); Sherman v. Com.                        Unemp. Compensation Bd. of Review, 114 Pa.
                                                         Cmwlth. 424, 539 A.2d 23 (1988)(holding that,
                                                         without authorizing rules for telephonic hearings,
4. See, Frequently Asked Questions, http://              it could not uphold evidence brought out in such                                         a hearing when the claimant had objected
5. The views expressed herein are solely those of
the authors, and are not meant to express ABA            11. Gregg v. Gregg, 776 P.2d 1041 (Alaska 1989)
policy (unless specifically identified and described     (permitting telephone testimony due to late
as such), or the opinions of the ABA House of            receipt of summons by party); Matter of W.J.C.,
Delegates, Board of Governors or any other               124 Wis.2d 238, 369 N.W.2d 162 (Wis. App.
ABA entity.                                              1985)(court-appointed psychologist and
                                                         psychiatrist were allowed to testify by telephone
6. (50 App. U.S.C.A. 501-596)                            when they had already filed their full reports with
                                                         the court); Ferrante v. Ferrante, 127 Misc.2d 352,
7.             485 N.Y.S.2d 960 (Sup. Ct. 1985)(in case of 92-
housing/nonmil.shtml                                     year old plaintiff, telephone testimony was
                                                         allowed since she could not travel to Florida from
8. Office Of The Attorney General Of The State           New York). See also Rule 43(a), Federal Rules of
Of New York, 1977 N.Y. AG LEXIS 148; 1977                Civil Procedure (allowing telephone testimony
Op. (Inf.) Atty Gen. N.Y. 124                            “for good cause shown in compelling
                                                         circumstances and upon appropriate safeguards”).
                                                         See generally Michael J. Weber, Permissibility of
9. The Florida Bar: In Re Rules of Summary               Testimony by Telephone in State Trials, 85 A.L.R. 4th
Procedure, 461 So.2d 1344 (Fla. 1984).                   476 (1991).
10. Barry v. Lindner, 75 P.3d 388 (Nev. 2003)            I2. In re Marriage of Mary Peters Sullivan, 342 Ill.
(telephone testimony is inadmissible at trial            App. 3d 560, 795 N.E.2d 392 (2003).
unless special circumstances exist); Rinehart v.
Rinehart, 2000 Guam 14 (2000)(disallowing                13. McQuinn v. McQuinn, 2003 Ala. Civ. App.
telephone testimony in absence of rule allowing          LEXIS 362.
same); Bonamarte v. Bonamarte, 263 Mont. 170,
866 P.2d 1132 (1994)(allowing telephone
tesimony only in “special or exigent

  Page 82
               R e f e re n c e s

14. USERRA functions as well as it does in large    30 (2004).
part due to the non-stop efforts of the
Committee for Employer Support of the Guard         25. Ga. Code. Ann. §§ 15-18-4.1, 15-18-64
and Reserve (ESGR; ESGR has a        (2004).
network of USERRA-trained ombudsmen
throughout the country who work tirelessly to       26. See, e.g., Ala. Code § 34-2-33 (2004); Ga.
amicably resolve issues between returning           Code Ann. § 43-34-200 (2004); S.C. Code Ann. §
veterans and their civilian employers. The vast     38-43-110 (2004).
majority of the claims get resolved when the
ombudsmen explain USERRA in non-                    27. Ga. Code Ann. § 43-1-9 (2004).
confrontational ways to the employers. There
are, however, always a number of claims that will   28. See Ala. Code § 31-2-11 (2004); Ga. Code
not resolve short of litigation.                    Ann. § 38-2-276 (2004).

                                                    29. See Ala. Code § 15-13-138 (2004); Ga. Code
15. Statutes: CONN. GEN. STAT. § 26-34a.
                                                    Ann. § 28-2-430 (2004).
(2004); MASS. GEN. LAWS ch. 191, § 6 (2004);
MASS. GEN. LAWS ch. 131, § 13 (2004); R.I.
                                                    30. See Ala. Code § 31-2-118 (2004); Ga. Code
GEN. LAWS § 20-2-31 (2004).
                                                    Ann. § 38-2-271 (2004).

16. MASS. GEN. LAWS ch. 7, § 40N (2004)             31. See ALA. CONST., art. XV, § 275; Ga. Code
                                                    Ann. § 38-2-272 (2004).
17. CONN. GEN. STAT. § 45a-251 (2004);
                                                    32. S.C. Code Ann. § 28-2-430 (2004).
MASS. GEN. LAWS ch. 191, §6 (2004); R.I. GEN.
LAWS § 33-5-5 (2004)
                                                    33. See Ala. Code § 31-2-12 (2004); Ga. Code
                                                    Ann. § 40-2-137 (2004).
18. William Blackstone, Commentaries on the         34. See, e.g., Ala. Code § 32-6-250 (2004); Ga.
Laws of England, Book 1 ch. 13                      Code Ann. § 40-2-85.1 (2004); S.C. Code Ann. §
                                                    32-6-291 (2004).
19. See, e.g., Ala. Code § 31-2-13 (2004); Ga.
Code Ann. § 38-2-279 (2004); S.C. Code Ann. §§
8-7-20, 8-7-90 (2004).                              35. See Ga. Code Ann. § 33-24-45 (2004); S.C.
                                                    Code Ann. § 38-77-123 (2004).
20. See GA. CONST., art. IV, § 3; Ala. Code § 36-
26-15 (2004); S.C. Code Ann. § 1-1-550 (2004).
                                                    36. Ga. Code Ann. § 45-17-30 (2004).
21. See Ala. Code § 16-25-3 (2004); Ga. Code
Ann. § 47-3-83 (2004); S.C. Code Ann. § 9-8-50
(2004).                                             37. Ala. Code § 31-2-22 (2004).

22. Ala. Code §31-2-13 (2004); Ga. Code Ann. §      38. Special thanks to Ms. Janice Island, a third year
38-2-280 (2004).                                    law student at the University of North Carolina
                                                    at Chapel Hill for her hard work and excellent
23. Ga. Code Ann. § 38-2-279(h)(2004).              research. At the time Janice worked on the
                                                    project she was a summer clerk in the Atlanta,
24. See Ala. Code § 36-8-2 (2004); Ga. Code         GA office of Powell, Goldstein, Frazier and
Ann. § 38-2-279(b)(2004); S.C. Code Ann. § 8-7-     Murphy.

                                                                          Page 83

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