FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

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FY2012 National Defense Authorization Act:

Selected Military Personnel Policy Issues

(name redacted), Coordinator

Specialist in Military Manpower Policy

(name redacted)

Specialist in Military Manpower Policy

(name redacted)

Analyst in Defense Health Care Policy

(name redacted)

Specialist in Military Manpower Policy

January 5, 2012

Congressional Research Service

7-....

www.crs.gov

R41874

CRS Report for Congress

Prepared for Members and Committees of Congress

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Summary

Military personnel issues typically generate significant interest from many Members of Congress

and their staffs. Recent military operations in Iraq and ongoing operations in Afghanistan, along

with the operational role of the Reserve Components, further heighten interest in a wide range of

military personnel policies and issues.

The Congressional Research Service (CRS) has selected a number of the military personnel

issues considered in deliberations on the House and Senate versions of the National Defense

Authorization Act for FY2012. This report provides a brief synopsis of sections that pertain to

personnel policy. These include end strengths, pay raises, health care issues, and language

affecting the repeal of the “Don’t Ask, Don’t Tell” policy, as well as congressional concerns over

the handling of sexual assaults in the military.

The House version of the National Defense Authorization Act for Fiscal Year 2012, H.R. 1540,

was introduced in the House on April 14, 2011; reported by the House Committee on Armed

Services on May 17, 2011 (H.Rept. 112-78); and passed on May 26, 2011.

Various Senate versions were introduced. S. 1867 was introduced on November 15, 2011, and

passed by the Senate on December 1, 2011. Often the Senate will add language not included in

the House version, add language that affects an issue in a differing manner (for example, the

Senate may have end strengths numbers that differ from the House). Usually, these differences

will be worked out under the Conference Committee’s consideration of the legislation. The

Conference Committee language was incorporated into the report.

On December 14, 2011, the House passed the conference reported version of H.R. 1540. The next

day, the Senate passed H.R. 1540. On December 31, 2011, President Obama signed P.L. 112-81

into law.

Where appropriate, related CRS products are identified to provide more detailed background

information and analysis of the issue. For each issue, a CRS analyst is identified and contact

information is provided.

This report focuses exclusively on the annual defense authorization process. It does not include

language concerning appropriations, veterans’ affairs, tax implications of policy choices, or any

discussion of separately introduced legislation.

Congressional Research Service

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Contents

Introduction...................................................................................................................................... 1

Adoption of Military Working Dogs................................................................................................ 2

*Active Duty End Strengths ............................................................................................................ 3

*Selected Reserves End Strength..................................................................................................... 5

New Reserve Activation Authorities................................................................................................ 6

General Officer/Flag Officer Reform .............................................................................................. 9

Vice Chief of the National Guard Bureau...................................................................................... 10

Pre-separation Counseling for Members of the Reserve Components .......................................... 12

Chief of the National Guard Bureau a Member of the Joint Chiefs of Staff.................................. 13

*Cold War Victory Medal .............................................................................................................. 16

Policy on Military Recruitment and Enlistment of Graduates of Secondary Schools ................... 17

Additional Condition on Repeal of Don’t Ask, Don’t Tell Policy ................................................. 18

Reform of Offenses Relating to Rape, Sexual Assault, Other Sexual Misconduct, and

Sodomy under the Uniform Code of Military Justice................................................................. 19

Military Regulations Regarding Marriage ..................................................................................... 21

Use of Military Installations as Sites for Marriage Ceremonies and Participation of

Chaplains and Other Military and Civilian Personnel in Their Official Capacity...................... 22

*Protection of Child Custody Arrangements for Parents Who Are Members of the Armed

Forces.......................................................................................................................................... 23

Improved Sexual Assault Prevention and Response in the Armed Forces .................................... 24

Wounded Warrior Careers Program ............................................................................................... 26

Comptroller General Study of Military Necessity of Selective Service System (SSS) and

Alternatives................................................................................................................................. 27

Playing of “Taps” at Military Funerals, Memorial Services, and Wreath Laying

Ceremonies ................................................................................................................................. 29

*Military Pay Raise ....................................................................................................................... 30

Death Gratuity and for Reserves who Die during Authorized Stay at their Residence

During Inactive Duty Training.................................................................................................... 31

Special Survivor Indemnity Allowance (SSIA) for Those Affected by the Survivor

Benefit Plan Annuity Offset for Dependency and Indemnity Compensation/*Repeal of

the Offset .................................................................................................................................... 32

*TRICARE Prime Annual Enrollment Fee Increase for Military Retirees ................................... 33

Behavioral Health Support for Reservists ..................................................................................... 35

Uniformed Services Family Health Plan Enrollment .................................................................... 36

*Unified Medical Command ......................................................................................................... 38

Congressional Research Service

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Tables

Table 1. Authorized Active Duty End Strengths .............................................................................. 3

Contacts

Author Contact Information........................................................................................................... 40

Congressional Research Service

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Introduction

Each year, the Senate and House Armed Services Committees report their respective versions of

the National Defense Authorization Act (NDAA). These bills contain numerous provisions that

affect military personnel, retirees, and their family members. Provisions in one version are often

not included in another; are treated differently; or, in certain cases, are identical. Following

passage of these bills by the respective legislative bodies, a Conference Committee is usually

convened to resolve the various differences between the House and Senate versions.

In the course of a typical authorization cycle, congressional staffs receive many requests for

information on provisions contained in the annual NDAA. This report highlights those personnelrelated issues that seem to generate the most intense congressional and constituent interest, and

tracks their statuses in the FY2012 House and Senate versions of the NDAA.

The House version of the National Defense Authorization Act for Fiscal Year 2012, H.R. 1540,

was introduced in the House on April 14, 2011; reported by the House Committee on Armed

Services on May 17, 2011 (H.Rept. 112-78); and passed by the House on May 26, 2011. The

Senate version of the NDAA, S. 1867, was passed on December 1, 2011. On December 14, 2011,

the House passed the conference reported version of H.R. 1540. On December 15, 2011, the

Senate passed H.R. 1540, and President Obama signed P.L. 112-81 into law on December 31,

2011.1

The entries under the headings “House,” “Senate,” and “P.L. 112-81” in the tables on the

following pages are based on language in these bills, unless otherwise indicated.

Where appropriate, related CRS products are identified to provide more detailed background

information and analysis of the issue. For each issue, a CRS analyst is identified and contact

information is provided.

Some issues were addressed in the FY2011 National Defense Authorization Act and discussed in

CRS Report R41316, FY2011 National Defense Authorization Act: Selected Military Personnel

Policy Issues, coordinated by (name redacted). Those issues that were considered previously

are designated with a “*” in the relevant section titles of this report.

Topics have been arranged in the order in which they were reported in the House report.

1

125 Stat. 1298.

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FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Adoption of Military Working Dogs

Background: In 2000, Congress passed P.L. 106-446 entitled “To require the immediate

termination of the Department of Defense practice of euthanizing military working dogs at the

end of their useful working life and to facilitate the adoption of retired military working dogs by

law enforcement agencies, former handlers of these dogs, and other persons capable of caring for

these dogs.”

House (H.R. 1540)

Section 351 amends Title 10 U.S.C.,

Section 2583(c), created by P.L. 106446), to expand those authorized to

adopt military working dogs to

include the family of a deceased or

seriously wounded member of the

Armed Forces who was the handler

of the dog.

Senate (S. 1867)

No similar provision.

P.L. 112-81

Section 351 allows for the adoption

of these dogs only by the handler (if

wounded), or by the parent, spouse,

child or sibling of the handler in

cases where the handler is deceased,

Discussion: Military working dogs are trained to be fearless and aggressive. These traits may or

may not be desired outside of the military or law enforcement environments. In passing P.L. 106446, Congress included language that limited liability of claims arising out of such a transfer

including, injury, property damage, additional training, etc. There are public concerns for the

welfare of these dogs. There are also concerns for any family member of deceased or seriously

wounded members of the Armed Forces who care for these dogs, but who were not responsible

for their original training and handling. A recent article noted that a small percent of the dogs

deployed suffer from ‘canine PTSD’ which can lead to ‘troubling behavior.’2

CRS Point of Contact: (name redacted), x7-.....

2

“Some [dogs] undergo sharp changes in temperament, becoming unusually aggressive with their handlers or clingy

and timid.” Dao, James, After Duty, Dogs Suffer Like Soldiers, New York Times, December 2, 2011.

Congressional Research Service

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FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

*Active Duty End Strengths

Background: The National Defense Authorization Act for Fiscal Year 2008 (P.L. 110-181)

authorized the Army to grow by 65,000 and the Marine Corps by 27,000, to respective end

strengths of 547,400 and 202,000 by FY2012. In FY2009, 2010 and 2011, the Army was

authorized additional, but smaller increases to an FY2011 end strength of 569,400. Even with

these increases, the nation’s Armed Forces, especially the Army and Marine Corps, continue to

experience high deployment rates and abbreviated “dwell time” at home stations. But with

withdraw of U.S. forces from Iraq in December 2012 and plans to begin withdrawing U.S. forces

from Afghanistan in July, 2012, the Secretary of Defense announced on January 6, 2011 that the

Active Army would begin a reduction in its end strength by 22,000 in 2012. This reduction would

be followed by an additional reduction of 27,000 to begin in FY2015 and be completed in

FY2016.

House (P.L. 104-199)

Senate (S. 1867)

P.L. 112-81

Section 401 authorizes a total

FY2012 active duty end strength of

1,422,639 including:

Section 401 authorizes a total active

duty end strength of 1,422,600

including:

Section 401 adopted the end

strengths recommended by the

Senate as of September, 30, 2012:

562,000 for the Army

562,000 for the Army

562,000 for the Army

325,739 for the Navy

325,700 for the Navy

325,700 for the Navy

202,100 for the Marine Corps

202,100 for the Marine Corps

202,100 for the Marine Corps

332,800 for the Air Force

332,800 for the Air Force

332,800 for the Air Force

Discussion: FY2012 represents the first year of the Army drawdown with a reduction of 7,400 in

FY2012. There are less dramatic reductions slated for the Navy (-2,961) and a slight increase for

the Air Force (+600) (see table below). The House Armed Services Committee (HASC) however,

expressed concern with these reductions in light of the existing 20,000 nondeployable personnel

currently in the Army (17% of the Active Component) and the 9,000 soldiers who remain in the

disability processing system for up to a year. The committee also expressed concern about

reducing end strength when only marginal improvement has been realized in dwell time and

uncertainty remains over the withdrawal from Afghanistan.

The Senate generally supported the House’s strength recommendations but did recommend a

further reduction of 39 for the Navy. The Senate’s recommended strength levels were supported

by the Conference Committee.

Table 1. Authorized Active Duty End Strengths

2009

(P.L. 110-417)

2010

(P.L. 111-84)

2011

(P.L. 111-383)

Baseline Army

532,400

562,400

569,400

562,000 (-7,400)

Baseline Navy

326,323

328,800

328,700

325,739 (-2,961)

Baseline Marine

Corps

194,000

202,100

202,100

202,100 (no change)

Baseline Air Force

317,050

331,700

332,200

332,800 (+600)

Baseline Subtotal

1,369,773

1,425,000

1,432,400

Congressional Research Service

2012

1,422,639

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FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

2009

(P.L. 110-417)

2010

(P.L. 111-84)

Temporary Army

22,000a

22,000a

n/a

Temp. Marine

Corps

13,000a

0

n/a

Temporary

Subtotal

35,000

22,000

n/a

1,404,773

1,477,000

1,432,400

Total Authorized

a.

2011

(P.L. 111-383)

2012

Temporary additional authority for 2009 and 2010 is provided by Section 403 of P.L. 110-181.

The Congressional Budget Office (CBO) estimates that the House-proposed decrease of 9,800

military personnel will save $5.8 billion over the 2012 to 2016 period. This savings results from

reductions in pay and benefits for fewer personnel and operation and maintenance costs.3

Reference(s): Previously discussed in CRS Report R41316, FY2011 National Defense

Authorization Act: Selected Military Personnel Policy Issues, coordinated by (name redacted),

and CRS Report R40711, FY2010 National Defense Authorization Act: Selected Military

Personnel Policy Issues, coordinated by (name redacted). See also CRS Report RL32965,

Recruiting and Retention: An Overview of FY2009 and FY2010 Results for Active and Reserve

Component Enlisted Personnel, by (name redacted).

CRS Point of Contact: Charles Henning, x7-.....

3

Congressional Budget Office Cost Estimate, H.R. 1540: National Defense Authorization Act for Fiscal Year 2012,

May 20, 2011, available at http://www.cbo.gov/ftpdocs/122xx/doc12202/hr1540.pdf.

Congressional Research Service

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FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

*Selected Reserves End Strength

Background: Although the Reserves have been used extensively in support of operations since

September 11, 2001, the overall authorized end strength of the Selected Reserves has declined by

about 2% over the past ten years (874,664 in FY2001 versus 856,200 in FY2011). Much of this

can be attributed to the reduction in Navy Reserve strength during this period. There were also

modest shifts in strength for some other components of the Selected Reserve. For comparative

purposes, the authorized end strengths for the Selected Reserves for FY2001 were as follows:

Army National Guard (350,526), Army Reserve (205,300), Navy Reserve (88,900), Marine Corps

Reserve (39,558), Air National Guard (108,022), Air Force Reserve (74,358), and Coast Guard

Reserve (8,000).4 Between FY2001 and FY2011, the largest shifts in authorized end strength have

occurred in the Army National Guard (+7,674 or +2%), Coast Guard Reserve (+2,000 or +25%),

Air Force Reserve (-3,158 or -4%), and Navy Reserve (-23,400 or -26%). A smaller change

occurred in the Air National Guard (-1,322 or -1.2%), while the authorized end strength of the

Army Reserve (-300 or -0.15%) and the Marine Corps Reserve (+42 or +0.11%) have been

largely unchanged during this period.

House (H.R. 1540)

Senate (S. 1867)

P.L. 112-81

Section 411 authorizes the following

end strengths for the Selected

Reserves:

Section 411 authorizes identical end

strengths for the Selected Reserves.

Section 411 authorizes identical end

strengths for the Selected Reserves.

Army National Guard: 358,200

Army Reserve: 205,000

Navy Reserve: 66,200

Marine Corps Reserve: 39,600

Air National Guard: 106,700

Air Force Reserve: 71,400

Coast Guard Reserve: 10,000

Discussion: The authorized Selected Reserve end strengths for FY2012 are the same as those for

FY2011 with the exception of the Air Force Reserve and the Navy Reserve. The Air Force

Reserve’s authorized end strength for FY2011 was 71,200, but the administration requested an

increase to 71,400 (+200). The Navy Reserve’s authorized end strength for FY2011 was 65,500,

but the administration requested an increase to 66,200 (+700). The final bill approved the

administration’s requested increases.

CRS Point of Contact: (name redacted), x7-.....

4

P.L. 106-398, Section 411.

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FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

New Reserve Activation Authorities

Background: At present, there are three major statutory provisions by which reservists can be

involuntarily ordered to active duty by the federal government for an extended period of time.5

Depending on which of these provisions is used, a reserve activation is commonly referred to as

either a Presidential Reserve Call-up (PRC), a Partial Mobilization, or a Full Mobilization. They

are authorized by law in 10 USC 12304, 12302, and 12301(a), respectively. These provisions

differ from each other in terms of the statutory requirements for utilization, the number and type

of reservists called up, and the duration of the call up.6 There has been debate in recent years

about modifying these authorities to allow for broader use of the reserve components, particularly

to enhance federal capabilities for disaster response.

House (H.R. 1540)

No similar provisions.

Senate (S. 1867)

P.L. 112-81

Section 515 adds a new provision to

Title 10 allowing the Secretary of

Defense to involuntarily activate

members of the federal reserve

components (not the National

Guard) for up to 120 days when a

governor requests federal assistance

in responding to a major disaster or

emergency.

Section 515 incorporates the

language of the Senate bill’s Section

515.

Section 515 also contains language

specifying that when the armed

forces and the National Guard are

employed simultaneously in support

of civil authorities, the “usual and

customary arrangement” should

include the appointment of a dual

status commander. It also states that

when a major disaster or emergency

occurs, the governor of the affected

state should be the principal civil

authority supported by the primary

federal agency, while the state

Adjutant General or his or her

designee should be the principal

military authority supported by the

dual status commander.

Section 511 adds a new provision to

Title 10 allowing the Secretaries of

the military departments to

involuntarily activate up to 60,000

reservists, from either the Selected

Reserves of the Individual Ready

Section 516 largely adopts the

language of the Senate bill’s Section

511, but clarifies that the

“preplanned mission” must be in

support of a combatant command.

and limits the activation authority to

5

There are also provisions for the recall of retired reservists, activation of the National Guard for domestic purposes,

and ordering reservists to duty for annual training of up to 15 days per year.

6

For more information on this topic, see CRS Report RL30802, Reserve Component Personnel Issues: Questions and

Answers, by (name redacted).

Congressional Research Service

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FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

House (H.R. 1540)

Senate (S. 1867)

Reserve mobilization category, for

up to 365 consecutive days for “a

preplanned mission.”

P.L. 112-81

Selected Reserve units.

Discussion:

The Senate bill contained two new provisions for activating units and individuals in the Reserve

Components. Section 515 in the Senate bill would allow the Secretary of Defense to involuntarily

order units and individuals of the Army Reserve, Navy Reserve, Marine Corps Reserve, and Air

Force Reserve to active duty for up to 120 days “when a governor requests federal assistance in

responding to a major disaster or emergency.” National Guard forces are not included in this

authority, but state governors already have the ability to activate their state National Guard forces

and to request support from other state National Guards under the Emergency Management

Assistance Compact. The Coast Guard Reserve already has a short-term, disaster response

activation authority (14 USC 712). There was no analogous provision in the House bill. Section

515 of the final bill adopted the Senate’s language.

Section 515 of the Senate bill also contained language specifying that when the armed forces and

the National Guard are employed simultaneously in support of civil authorities within the United

States, a dual status commander should be appointed. A dual status commander is a military

officer who simultaneously serves as a state National Guard officer under the control of his or her

governor, and as a federal military officer under the control of the President.7 A dual status

commander is thus able to command non-federalized National Guard forces and federal forces via

these separate chains of command. The language of this provision also specifies that “when a

major disaster or emergency occurs in any area subject to the laws of any State, Territory, or the

District of Columbia, the Governor of the State affected normally should be the principal

authority supported by the primary Federal agency and its supporting Federal entities, and the

Adjutant General of the State or his or her subordinate designee normally should be the principal

military authority supported by the dual-status commander when acting in his or her State

capacity.” There was no analogous language in the House bill. Section 515 of the final bill

adopted the Senate’s language.

A separate provision of the Senate bill (Section 511) would add a new authority to involuntarily

activate individuals and units of the Selected Reserve, and members of the Individual Ready

Reserve’s “mobilization category,”8 for up to 365 consecutive days of active duty. The authority

to activate reservists under this provision rests with the Service Secretary, but it may only be

invoked for missions that are “preplanned” and where the reserve component activations were

budgeted for. According to the Senate Committee report, this new authority “is not designed for

use for emergent operational or humanitarian missions, but rather to enhance the use of reserve

component units that organize, train, and plan to support operational mission requirements to the

same standards as active component units under service force generation plans in a cyclic,

periodic, and predictable manner” No more than 60,000 members of the National Guard and

7

See 32 U.S.C. 315 and 325.

10 USC 10144(b) specifies that individuals may not be placed in the Individual Ready Reserve mobilization category

unless “(A) the member volunteers for that category; and (B) the member is selected for that category by the Secretary

concerned, based upon the needs of the service and the grade and military skills of that member.” DOD has not made it

a priority to fill this “mobilization category” and currently there are no members assigned to it.

8

Congressional Research Service

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FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Reserves may be serving on active duty under this authority at any given time. There was no

analogous provision in the House bill. Section 516 of the final bill largely adopts the Senate

language, but clarifies that the “preplanned mission” must be in support of a combatant

command, and that only units of the Selected Reserve may be activated.

CRS Point of Contact: (name redacted), x7-.....

Congressional Research Service

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FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

General Officer/Flag Officer Reform

Background: 10 U.S.C. Section 525 establishes the criteria for the number of general/flag

officer9 authorizations and provides the formula for determining the appropriate grade distribution

of these positions. As of July 2010, there were 967 actual general/flag officers on active duty but

general/flag officer authorizations allow for up to 982 positions. Of these 982 positions, 658 are

slated to fill in-service requirements while an additional 324 fill joint duty assignments.

In March, 2011, Secretary of Defense Gates released a 48-page memo that announced a number

of efficiency initiatives designed to save $178 billion over the 2012 to 2016 period. One of the

initiatives would eliminate 101 general/flag officer positions from the FY2010 baseline and

downgrade an additional 22 positions by filling them at a lower grade.10 These positions would be

eliminated and downgraded over the next two years as U.S. forces in Iraq and Afghanistan are

withdrawn.

House (H.R. 1540)

Section 502 would eliminate 14

general/flag officers in joint duty

assignments and add up to 7 officers

serving in intelligence positions to

count against the joint duty

assignment limit. It would also

eliminate 11 Air Force general officer

authorizations and require that

service academy superintendents

count against their service limits.

These changes must occur between

January 1, 2012 and October 1,

2013.

Senate (S. 1867)

No similar provision.

P.L. 112-81

Section 502 increased the number of

active duty general officers by 1 each

for the Army, Navy and Marine

Corps while reducing the Air Force

by 10. It also reduced the number of

joint duty general officer

authorizations from 324 to 310. In

addition, the Chief of the National

Guard Bureau and the service

academy superintendents are no

longer excluded from general officer

limitations effective January 1, 2012.

Discussion: Congress is sensitive to the general/flag officer content of the services, especially

when compared to service end strength. These general/flag officer to other service member ratios

have worsened since 9/11 and today the Air Force, for example, has one general for every 1,045

airmen as compared to the Army which has one general for every 1,764 soldiers. The changes

noted in Section 502 are in addition to the eliminations and downgrades identified by Secretary

Gates.

CRS Point of Contact: (name redacted), x7-.....

9

There are four ranks at the general/flag officer level. From senior to junior, these include (1) General in the Army, Air

Force and Marine Corps; Admiral in the Navy; (2) Lieutenant General in the Army, Air Force and Marine Corps; Vice

Admiral in the Navy; (3) Major General in the Army, Air Force and Marine Corps; Rear Admiral, Upper Half in the

Navy; (4) Brigadier General in the Army, Air Force and Marine Corps; Rear Admiral, Lower Half in the Navy.

10

Department of Defense, “Department of Defense Efficiency Initiatives: Fiscal Year 2012 Budget Estimate, Office of

the Under Secretary of Defense (Comptroller), Undated.

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FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Vice Chief of the National Guard Bureau

Background: In 1994, Congress established the position of Vice Chief of the National Guard

Bureau (VCNGB), with the grade of major general (two-star general).11 Ten years later, it was

redesignated as the Director of the National Guard Bureau Joint Staff to reflect the duties of the

position in light of the Bureau’s reorganization, which included a joint staff.12 Section 904 of S.

1390, the Senate-passed version of the FY2010 National Defense Authorization Act, contained a

provision to re-establish the position of VCNBG, with a grade to be determined by the Secretary

of Defense. This provision was not included in the final bill, but a separate provision did require

DOD to provide an assessment of the necessity of reestablishing the position of VCNGB.13 DOD

has not yet submitted this report.

House (H.R. 1540)

Senate (S. 1867)

P.L. 112-81

Section 511 would establish the

position of Vice Chief of the National

Guard Bureau, with the rank of

lieutenant general. To be selected for

this position, an Army National

Guard or Air National Guard officer

would need to meet the following

qualifications:

Section 1602 would establish the

position of Vice Chief of the National

Guard Bureau with the rank of

lieutenant general. To be selected for

this position, an Army National

Guard or Air National Guard officer

would need to meet the following

qualifications:

Section 511 incorporates the

language of the House’s Section 511.

•

Be nominated by his or her

governor;

•

Be recommended by his or her

governor;

•

Have at least 10 years of

federally recognized

commissioned service in the

National Guard;

•

Have at least 10 years of

federally recognized

commissioned service in the

National Guard;

•

Currently serving in the grade

of brigadier general or higher

•

Currently serving in the grade

of brigadier general or higher

•

Be recommended by the

Secretary of the Army or Air

Force, and by the Secretary of

Defense;

•

Be certified by the Chairman of

the Joint Chiefs of Staff as

having significant joint duty

experience;

Under Section 511, the VCNGB

would be appointed by the President,

with the advice and consent of the

Senate.

Under Section 1602, the VCNGB

would be selected by the Secretary

of Defense.

Section 511 provides that the Vice

Chief will serve as the Acting Chief

Section 1602 provides that the Vice

Chief will serve as the Acting Chief

of the National Guard Bureau in the

11

P.L. 103-337, Section 904(a).

P.L. 108-375, Section 508.

13

FY2010 NDAA, Section 502(a)(4)(A).

12

Congressional Research Service

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FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

House (H.R. 1540)

Senate (S. 1867)

of the National Guard Bureau in the

event that the Chief of the National

Guard Bureau is absent or disabled,

or the position is vacant. It would

also specify a chain of succession in

the event that the Vice Chief is

absent or disabled, or the position is

vacant. The current Director of the

Joint Staff would hold the position of

acting Vice Chief until a permanent

appointment can be made.

event that the Chief of the National

Guard Bureau is absent or disabled,

or the position is vacant.

P.L. 112-81

Discussion: In the FY2008 National Defense Authorization Act (P.L. 110-181, Title XVIII),

Congress elevated the grade of the Chief of the National Guard Bureau (CNBG) from lieutenant

general (3-star general) to general (4-star general) and added new responsibilities to the position.

Supporters of re-establishing the VCNGB position argue that the CNGB needs someone to assist

him in carrying out his duties, just as the Service Chiefs and the Chairman of the Joint Chiefs of

Staff each have Vice Chiefs to assist them. They also note that a Vice Chief should be at least the

same rank as the Directors of the Army National Guard and the Air National Guard, both of

whom are lieutenant generals, in order to effectively act in the place of the CNGB when required.

Some may consider the redesignation and increase in grade as unnecessary, particularly in a time

when general officer positions are being eliminated or downgraded within the Department of

Defense.

Both the House bill and Senate bill would reestablish the VCNGB position with the grade of

lieutenant general. However, the House provision contained criteria for selection to the position

which were not in the Senate bill. It also made the position a presidentially appointed position,

subject to Senate confirmation, while the Senate provision specified that the Secretary of Defense

would appoint the VCNGB. Section 511 of the final bill adopted the House language.

CRS Point of Contact: (name redacted), x7-.....

Congressional Research Service

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FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Pre-separation Counseling for Members of the

Reserve Components

Background: 10 U.S.C. 1142 requires the Service Secretaries to provide pre-separation

counseling to members of the Armed Forces whose discharge or release from active duty is

anticipated as of a specific date.14 The counseling must include discussions of a number of topics,

including educational benefits, relocation assistance services, post-separation medical and dental

coverage, career counseling, financial planning, employment and re-employment rights, and

veterans’ benefits. The counseling may begin as far out as 24 months before retirement and 12

months before separation, but generally must begin no later than 90 days prior to the date of

discharge or release. This time frame can be difficult to meet for reserve component members

serving on operational deployments (for example, in Iraq and Afghanistan), as it is often not

feasible to provide counseling services while they are performing operational duties, and they are

typically released from active duty within a few weeks of return to the United States. The

Department of Defense requested an amendment to 10 U.S.C. 1142 “[i]n order to bring the

reserve components into compliance with the statute.”

House (H.R. 1540)

Senate (S. 1867)

P.L. 112-81

Section 512 would amend 10 U.S.C.

1142 to eliminate the 90 day

requirement for reserve component

personnel serving more than 30 days

on active duty when the Service

Secretary determines that

operational requirements make the

90-day requirement unfeasible. In

such cases, the pre-separation

counseling will begin as soon as

possible.

Using slightly different language,

Section 513 of the Senate bill would

make a similar change to 10 USC

1142, eliminating the 90 day

requirement for reserve component

personnel when the Service

Secretary determines that

operational requirements make the

90-day requirement unfeasible. In

such cases, the pre-separation

counseling shall begin as soon as

possible.

Section 513 incorporates the Senate

language.

Discussion: The House and Senate provisions are aimed at adapting the pre-separation

counseling requirement to the reserve deployment cycle. The final bill adopted the Senate

language, which means that pre-separation counseling will be conducted for members of the

National Guard and Reserve serving on active duty for a period of more than 180 days, but the

counseling may occur less than 90 days prior to the date of separation.

CRS Point of Contact: (name redacted), x7-.....

14

Counseling is not provided to a member who is being discharged or released before the completion of that member’s

first 180 days of active duty, unless the member is being retired or separated for disability.

Congressional Research Service

12

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Chief of the National Guard Bureau a Member of

the Joint Chiefs of Staff

Background: The Joint Chiefs of Staff is made up of a Chairman, a Vice-Chairman, the Chief of

Staff of the Army, the Chief of Naval Operations, the Chief of Staff of the Air Force, and the

Commandant of the Marine Corps. The Chairman is “the principal military adviser to the

President, the National Security Council, the Homeland Security Council, and the Secretary of

Defense.” The other members of the JCS “are military advisers to the President, the National

Security Council, the Homeland Security Council, and the Secretary of Defense” but normally

provide their advice through the Chairman.15

At present, the Army National Guard and the Air National Guard are represented on the Joint

Chiefs of Staff (JCS) by their service chiefs—the Chief of Staff of the Army and the Chief of

Staff of the Air Force, respectively—in the same way that the Army Reserve and Air Force

Reserve are represented. Some have argued that this representation is inadequate, particularly

when it comes to issues related to the use of the National Guard in a non-federalized status for

domestic operations (for example, responding to disasters), and note that the National Guard has

often been excluded from participating in key decision-making processes. They have advocated

making the Chief of the National Guard Bureau (CNGB) a member of the JCS in order to ensure

that the National Guard has a “seat at the table” when high-level policy options are debated and

recommendations for the President and Secretary of Defense are formulated.

This issue was debated before the Commission on the National Guard and Reserve (CNGR) in

2006-2007, which recommended against such a change “on the grounds that the duties of the

members of the Joint Chiefs of Staff are greater than those of the Chief of the National Guard

Bureau.” The Commission report further noted that making the CNGB a member of the JCS:

would run counter to intra- and inter-service integration and would reverse progress toward

jointness and interoperability: making the Chief of the National Guard Bureau a member of

the Joint Chiefs of Staff would be fundamentally inconsistent with the status of the Army

and Air National Guard as reserve components of the Army and Air Force. Finally, the

Commission concludes that this proposal would be counter to the carefully crafted

organizational and advisory principles established in the Goldwater-Nichols legislation.

Shortly after the Commission report was published, Congress made a number of changes related

to the National Guard Bureau and the CNGB. Although Congress declined to make the CNGB a

member of the JCS at that time, it did elevate the grade of the position from lieutenant general

(three-star general) to general (four-star general) and added new responsibilities to the position.

Congress also specified that—in addition to the Chief of the National Guard Bureau’s existing

duties as principal advisor to the Secretaries and Chiefs of Staff of the Army and Air Force on

National Guard matters—the Chief was also “a principal adviser to the Secretary of Defense,

through the Chairman of the Joint Chiefs of Staff, on matters involving non-federalized National

Guard forces and on other matters as determined by the Secretary of Defense.” 16

15

16

10 U.S.C. 151(b-f)

FY2008 National Defense Authorization Act (P.L. 110-181, Section 1811(d))

Congressional Research Service

13

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

On November 10, 2011, the Senate Armed Services Committee received testimony from the DOD

General Counsel, the six current members of the Joint Chiefs of Staff, and the Chief of the

National Guard Bureau on whether the Chief should be made a member of the JCS. The current

members of the Joint Chiefs of Staff and the DOD General Counsel were opposed to making this

change, while the Chief of the National Guard Bureau, General Craig McKinley, favored it. In his

testimony, General McKinley argued that “only full Joint Chiefs of Staff membership for the

Chief of the National Guard Bureau will ensure that the responsibilities and capabilities of the

non-Federalized National Guard are considered in a planned and deliberate manner that is not

based upon ad hoc or personal relationships but is, instead, firmly rooted in the law and the

National strategy.”17

House (H.R. 1540)

Senate (S. 1867)

P.L. 112-81

Section 515 designates the CNGB as

a “member of the Joint Chiefs of

Staff (as described in Section 151 of

[Title 10])”

Section 1603 designates the CNGB

as a member of the JCS and specifies

that “the Chief of the National

Guard Bureau shall perform the

duties prescribed for him or her as a

member of the Joint Chiefs of Staff

under Section 151 of [Title 10].”

Section 515 also specifies that in this

role, the CNGB shall advocate for

the state and territorial National

Guards and “coordinat[e] the efforts

of the war fighting support and force

provider mission of the National

Guard with the homeland defense,

defense support to civil authorities,

and State emergency response

missions of the National Guard to

ensure the National Guard has the

resources to perform its multiple

missions.”

No similar provision.

Section 512 designates the Chief of

the National Guard Bureau as a

member of the Joint Chiefs of Staff

and specifies that “[a]s a member of

the Joint Chiefs of Staff, the Chief of

the National Guard Bureau has the

specific responsibility of addressing

matters involving non-Federalized

National Guard forces in support of

homeland defense and civil support

missions.”

Additionally, Section 515 designates

the CNGB as an “advocate and

liaison” for state and territorial

National Guards and requires the

CNGB to consult with governors

and adjutant generals before any

changes are made to National Guard

force structure or equipment levels.

No similar provision.

Discussion: Both the House and Senate bill would make the CNGB a member of the JCS. The

House bill would make other changes as well. It would formally assign the CNGB with

responsibility for being an advocate and liaison for the National Guards of the states and

territories, informing them of all actions that could affect their federal or state mission, consulting

with governors and adjutant generals before changes in force structure or equipment levels are

made, and ensuring that the National Guard has the resources to perform both its war fighting and

domestic response missions. Section 512 of the final bill designates the Chief of the National

Guard Bureau as a member of the Joint Chiefs of Staff and specifies that “[a]s a member of the

Joint Chiefs of Staff, the Chief of the National Guard Bureau has the specific responsibility of

17

Testimony of General Craig R. McKinley before the Senate Armed Services Committee, November 10, 2011,

available at http://armed-services.senate.gov/Transcripts/2011/11%20November/11-73%20-%2011-10-11.pdf, p. 16.

Congressional Research Service

14

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

addressing matters involving non-Federalized National Guard forces in support of homeland

defense and civil support missions.”

Reference(s): Testimony before the Senate Armed Services Committee by Jeh Johnson, General

Martin Dempsey, Admiral James Winnefield, General Ray Odierno, Admiral Jonathan Greenert,

General James Amos, General Norton Schwartz, and General Craig McKinley, available at

http://armed-services.senate.gov/Transcripts/2011/11%20November/11-73%20-%2011-10-11.pdf

Testimony before the Commission on the National Guard and Reserve by General Steven Blum,

Dr. David Chu, Major General Frank Vavala, and General Peter Pace, available at

http://www.cngr.gov/.

Second Report of the Commission on the National Guard and Reserves: 75-76,

http://www.cngr.gov/pdf/CNGR%20Second%20Report%20to%20Congress%20.pdf.

CRS Point of Contact: (name redacted), x7-.....

Congressional Research Service

15

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

*Cold War Victory Medal

Background: Congress authorized the Cold War Recognition Certificate years ago as part of the

FY1998 National Defense Authorization Act (section 1084). Its was created to recognize the

contributions and sacrifices of our armed forces and government civilians whose service

contributed to victory in the Cold War. Members of the armed forces and federal government

civilian employees who served the United States during the Cold War period, from September 2,

1945, to December 26, 1991, are eligible.

House (H.R. 1540)

No similar provision.

Senate (S. 1867)

Under the language in Section 581,

the Secretary of Defense may

authorize the issuance by the

Secretaries concerned of a medal, to

be known as the ‘Cold War Medal,’

subject to regulations prescribed by

the Secretary of Defense.

P.L. 112-81

This provision was not included.

Discussion: A number of veterans’ organization have supported efforts to create this medal in

recognition of the veterans’ role in the Cold War.

CRS Point of Contact: (name redacted), x7-.....

Congressional Research Service

16

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Policy on Military Recruitment and Enlistment of

Graduates of Secondary Schools

Background: Prior to 1987, the Services had differing policies with regard to how they treated

secondary educational credentials in the recruiting process. Following empirical analysis, three

tiers were created that corresponded with the likelihood that a recruit would successfully

complete his/her first term. Those most likely to finish their first term are in tier one and include

recruits with a traditional high school diploma and/or at least one year of college. Those with

alternative diplomas, such as the GED, Adult Education diplomas, Home Study certificates,

Correspondence School Graduates, for example, are in tier two. Those with no credentials (e.g.,

high school dropouts), or with credentials that do not satisfy falling into the first two tiers were

given the lowest priority. Although this approach appears to be working, it has been over 20 years

since the data have been reviewed. During that time, other forms of alternative education have

emerged, including on-line programs.

House (H.R. 1540)

Senate (S. 1867)

P.L. 112-81

Section 525 would require recruiters

to treat persons receiving diplomas

from legally operating secondary

schools in a state the same as those

receiving diplomas from secondary

schools as defined in U.S. Code. The

Secretary is directed to prescribe a

recruiting and enlistment policy that

includes: “(1) Means of identifying

qualified persons to enlist; (2) Means

for assessing how qualified persons

fulfill their enlistment obligation; and

(3) Means for maintaining data by

each diploma source which can be

used to analyze attrition rates.”

Section 526 contains a similar

provision as in the House version.

Section 532 requires recruiters to

treat persons receiving diplomas

from legally operating secondary

schools in a state, or those who

otherwise complete a program of

secondary education in compliance

with State law, the same as those

receiving diplomas from secondary

schools as defined in U.S. Code. The

Secretary is directed to prescribe a

recruiting and enlistment policy that

includes: “(1) Means of identifying

qualified persons to enlist; (2) Means

for assessing how qualified persons

fulfill their enlistment obligation; and

(3) Means for maintaining data by

each diploma source which can be

used to analyze attrition rates.”

Discussion: The House is concerned that since DOD developed its policy on secondary

education, other alternative means of obtaining a diploma have emerged such as on-line

educational programs (i.e., non-“brick and mortar” programs). DOD originally created this policy

based on attrition data. This approach seems to suggest making the changes and then studying the

data.

Reference(s): CRS Report 88-474 F, Military Recruiting: Controversy over the Use of

Educational Credentials, by (name redacted) (out of print; available upon request).

CRS Point of Contact: (name redacted), x7-.....

Congressional Research Service

17

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Additional Condition on Repeal of Don’t Ask,

Don’t Tell Policy

Background: P.L. 111-321 called for the repeal of Title 10 U.S.C., Section 654, which served as

the basis for the 1993 policy banning open homosexuality in the military, colloquially known as

Don’t Ask, Don’t Tell or DADT. Before the law and policy were repealed, a number of steps were

taken, including (1) certification by the President, Secretary of Defense and Chairman of the Joint

Chiefs of Staff that the repeal was consistent with military readiness, military effectiveness, unit

cohesion and recruiting; (2) certification that DOD prepared the necessary policies and

regulations for implementing the repeal; and (3) a subsequent 60-day waiting period before repeal

would occur. Until these steps are satisfied, the law prohibiting open homosexuality in the

military remains in effect. On September 20, 2011, Section 654 was repealed.

House (H.R. 1540)

Section 533 modifies the certification

process to require the additional

certifications of the Chief of Staff of

the Army, the Chief of Naval

Operations, Commandant of the

Marine Corps, and the Chief of Staff

of the Air Force.

Senate (S. 1867)

No similar provision.

P.L. 112-81

This provision was not included.

Discussion: During the process of considering legislation to repeal Don’t Ask, Don’t Tell, certain

amendments, including the language in sec 533, were procedurally blocked. As structured, the

repeal required only the certification from those who had previously stated support for repeal of

DADT in the military. Although other members of the Joint Chiefs of Staff had stated they could

carry out the repeal, certain members of the Joint Chiefs of Staff expressed reservations regarding

the repeal. Given that the repeal has already occurred, it is not clear what effect enacting this

language would have had.

Reference(s): CRS Report R40782, “Don’t Ask, Don’t Tell”: Military Policy and the Law on

Same-Sex Behavior, by (name redacted), and CRS Report R42003, The Repeal of “Don’t Ask,

Don’t Tell”: Issues for Congress, by (name redacted).

CRS Point of Contact: (name redacted), x7-.....

Congressional Research Service

18

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Reform of Offenses Relating to Rape, Sexual

Assault, Other Sexual Misconduct, and Sodomy

under the Uniform Code of Military Justice

Background Concerns over laws regarding rape and sexual misconduct, as well as the repeal of

the Don’t Ask Don’t Tell policy led to a review of the Uniform Code of Military Justice. The Joint

Service Committee of Military Justice recommended numerous changes to the Uniform Code of

Military Justice concerning rape and sexual assault. These changes were submitted to the House

and Senate Armed Services Committees for consideration. Included in these recommendations

was language that would repeal the prohibition on sodomy.18

House (H.R. 1540)

No similar provision.

Senate (S. 1867)

P.L. 112-81

In addition to striking Article 125

from the UCMJ, Section 551

removes the word ‘sodomy’ from

Articles 43, Statute of limitations,

and 118, Murder. This Section also

reorganizes Article 120, Rape, sexual

assault, and other sexual misconduct,

and 120a, Stalking, into three

categories based on modified or

existing language in the original

articles: 120, Rape and sexual assault

generally, 120a, Stalking, 120b Rape

and sexual assault of a child, and

120c, Other sexual misconduct.

Section 541 is adopted making

changes to Article 120 without the

repeal of Article 125.

Discussion: In addition to reorganizing and modifying existing language pertaining to rape and

sexual assault, including rape and sexual assault of children, this section creates language

regarding non-consensual sexual misconduct (indecent viewing, visual recording or

broadcasting). These changes align the language in Article 120 with definitions in other Articles

of the UCMJ (‘rape by unlawful force’), clarifies sexual assault (‘removing the focus from the

degree of incapacity of the victim and refocuses on the accused’s actions’), and simplifies

existing language with regard to the rape of children, according to the Joint Service Committee.

Despite these and previous changes, including changes in prosecution and victim advocacy,

problems remain.19 This language removes sodomy as a chargeable offense. Although the

removal of sodomy has been justified based on certain court decisions striking down sodomy

laws (Lawrence v. Texas20, for example), some have noted that the Comprehensive Review

18

Uniform Code of Military Justice, Article 125. Sodomy “Any person subject to this chapter who engages in unnatural

carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy.”

19

“Contrary to public and political impressions, an extensive McClatchy review of military sexual assault finds plenty

of Pentagon and congressional action. Some works. Some falls short. Some goes too far, in a legal arena that’s

notorious for its complications.” Doyle, Michael, and Marisa Taylor, McClatchy Newspapers, November 28, 2011.

20

539 U.S. 558 (2003).

Congressional Research Service

19

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Working Group recommended that it be removed as part of the effort to repeal the Don’t Ask,

Don’t Tell policy.21

Reference(s): CRS Report R40782, “Don’t Ask, Don’t Tell”: Military Policy and the Law on

Same-Sex Behavior, by (name redacted), and CRS Report R42003, The Repeal of “Don’t Ask,

Don’t Tell”: Issues for Congress, by (name redacted).

CRS Point of Contact: (name redacted), x7-.....

21

Report of the Comprehensive Review of the Issues Associated with a Repeal of Don’t Ask, Don’t Tell, November

30, 2010: 139.

Congressional Research Service

20

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Military Regulations Regarding Marriage

Background: In 1996, the Defense of Marriage Act (DOMA) was enacted (P.L. 104-199). Under

this law, the federal government does not recognize same-sex marriages, the law allows states to

refuse to recognize such marriages, and defines marriage for federal benefit purposes, as the

union of one man and one woman. A few states have recognized same-sex marriages. The

Attorney General, Eric Holder, announced in a letter to Speaker of the House, John A. Boehner,

that the definition of marriage as set forth in DOMA was “unconstitutional.”22 Under Title 10,

U.S.C., for example, certain military benefits, such as military health care, describe who are

eligible beneficiaries, including “Spouse,” “Former Spouse,” “Widow,” and “Widower.”

Following the repeal of DADT, a service member who marries a same-sex partner in a state that

recognizes such, would be prevented from providing the spouse with military health care and

certain other benefits because of restrictions under DOMA.

House (H.R. 1540)

Senate (S. 1867)

P.L. 112-81

Section 534 reaffirms that under

DOMA, the term “marriage” as

applied to any service member or

civilian employee of the Department

of Defense shall mean only a union

between one man and one woman,

and the word “spouse” refers only

to a person of the opposite sex who

is a husband or wife.

Section 527 states “A military

chaplain who, as a matter of

conscience or moral principle, does

not wish to perform a marriage may

not be required to do so.”

The Senate language was adopted as

Section 544. DOMA remains

unchanged.

Discussion: The matter of DOMA is currently being contested in the courts. The language above

recommits the House to the definition of marriage under DOMA. The Senate language allows

military chaplains to opt out of performing any marriage as a matter of conscience or moral

principle.

Reference(s): CRS Report RL31994, Same-Sex Marriages: Legal Issues, by (name redacted).

CRS Point of Contact: (name redacted), x7-.....

22

“Attorney General Declares DOMA Unconstitutional,” CNN Politics, February 23, 2011, available at

http://whitehouse.blogs.cnn.com/2011/02/23/attorney-general-declares-doma-unconstitutional/.

Congressional Research Service

21

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Use of Military Installations as Sites for Marriage

Ceremonies and Participation of Chaplains and

Other Military and Civilian Personnel in Their

Official Capacity

Background: See the previous issue for a discussion of the 1996 Defense of Marriage Act (P.L.

104-199). According to reports, in April 2011, Navy Chief of Chaplains, Rear Adm. M.L. Tidd,

announced on April 13, 2011, a change in policy allowing same-sex marriages to be performed in

Navy Chapels. Following criticism by certain Members of Congress, on May 10, 2011, the policy

change was “suspended.”

House (H.R. 1540)

Section 535 establishes that

marriages performed on DOD

installations involving the

participation of DOD military or

civilian personnel serving in their

official capacity must comply with

DOMA which defines marriage as

the legal union between one man and

one woman.

Senate (S. 1867)

No similar provision.

P.L. 112-81

The House provision was not

adopted. DOMA remains unchanged.

Discussion: Rear Adm. Tidd announced the change in guidance was suspended “until further

notice pending additional legal and policy review and inter-Departmental coordination.”23 As

such, it appears that the services are or will begin this process. The House language would

recommit DOD to the definition of marriage under DOMA.

Reference(s): CRS Report RL31994, Same-Sex Marriages: Legal Issues, by (name redacted).

CRS Point of Contact: (name redacted), x7-.....

23

Volsky, Igor, “Navy Rescinds Same-Sex Marriage Ruling Pending Legal and Policy Review,” May 11, 2011,

available at http://thinkprogress.org/lgbt/2011/05/11/177408/navy-marriage-rescind/.

Congressional Research Service

22

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

*Protection of Child Custody Arrangements for

Parents Who Are Members of the Armed Forces

Background: Military members who are single parents are subjected to the same assignment and

deployment requirements as are other service members. Deployments to areas that do not allow

dependents (such as aboard ships or in hostile fire zones) require the service member to have

contingency plans to provide for their dependents. (See U.S. Department of Defense, Instruction

No. 1342.19, “Family Care Plans,” May 7, 2010.) Concerns have been raised that the possibility

or actuality of military deployments may encourage courts to deny custodial rights of a service

member to a former spouse or others. Also, concerns have been raised that custody changes may

occur while the military member is deployed and unable to attend court proceedings.

House (H.R. 1540)

Section 573 amends the Service

Members Civil Relief Act to require

courts to render temporary custody

orders based on deployments and to

reinstate the service member as

custodian unless the court

determines that reinstatement is not

in the child’s best interest. This

language prohibits courts from using

deployment, or the possibility of

deployment, in determining the

child’s best interest. In cases where a

State provides a higher standard of

protection of the rights of the

service member, then the State

standards apply.

Senate (S. 1867)

No similar provision.

P.L. 112-81

The House provision was not

adopted.

Discussion: This language would allow courts to temporarily assign custody of a child for the

purposes of deployment without allowing the (possibility of) deployment to be prejudicially

considered against the service member in a custody hearing.

CRS Point of Contact: (name redacted), x7-.....

Congressional Research Service

23

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Improved Sexual Assault Prevention and Response

in the Armed Forces

Background: Issues of sexual assault in the Armed Forces have been of concern to Congress for

decades. Over the years, Congress has, on numerous occasions, addressed the issue via studies,

hearings and legislation. Title V (subtitle I) of H.R. 1540 contains seven Sections concerning

sexual assault. (Note: Section numbers and order do not necessarily correspond across reported

bills.)

House (H.R. 1540)

Senate (S. 1867)

Section 581 requires the director of

the Sexual Assault Prevention and

Response Office be a general or flag

officer or comparable senior

executive service position.

Section 561 contains the same

language as Section 581 in the House

bill.

Section 582 requires a full time

Sexual Assault Response

Coordinator (SARC) and a full-time

Sexual Assault Victims Advocate

(SAVA) be assigned to each brigade

(or equivalent unit level).

Section 562 requires the Secretary of

Defense to issue guidance to the

Service Secretaries to determine the

appropriate number of Sexual

Assault Response Coordinators and

Sexual Assault Victims Advocates.

Section 583 entitles members and

certain dependents who are victims

of sexual assault with legal assistance

from a military legal assistance

counsel and assistance of SARCs/

and SAVAs.

Section 563 entitles members who

are victims of sexual assault with

legal assistance from a military legal

assistance and assistance of

SARCs/SAVAs.

Section 584 creates a new Art. In the

UCMJ providing “a confidentiality

privilege in military tribunals for

communication between sexual

assault victims and Sexual Assault

Response Coordinators, Sexual

Assault Victims Advocates, and

DOD SAFE Help line personnel.”

Section 564 creates confidentiality

provisions in the Manual for CourtsMartial providing confidentiality

between victims and Sexual Assault

Response Coordinators/Sexual

Assault Victims Advocates.

Section 585 requires DOD to

maintain records relating to sexual

assault for 100 years and requires

that victims are provided with a copy

of court-martial proceedings in

certain circumstances.

Section 566 creates a comprehensive

policy and procedures regarding the

retention and access to evidence and

records relating to sexual assaults

involving members of the armed

forces.

Section 586 requires an expedited

consideration and approval for a

Permanent Change of Station or unit

transfer for a member who is the

victim of sexual assault.

Section 565 requires expedited

consideration and approval for a

Permanent Change of Station or unit

transfer for a member who is the

victim of sexual assault.

Section 587 requires each military

department to provide sexual assault

training and education at each level

No similar provision.

Congressional Research Service

P.L. 112-81

Section 583 incorporated this

language.

Section 584 adopts the House

language with a clarifying

amendment.

Section 581 requires the Secretary of

Defense to issue regulations

affording members and dependents

access to legal assistance and

restricted reports to SARCs/SAVAs

and certain health care providers.

Neither provision is included

although the Conferees note that

confidentiality issues are being

handled administratively.

Section 586 adopts the Senate

language except that documentary

evidence must be kept for not less

than the length of time investigative

records are retained and that victims

will be provided a copy of all

prepared records of the courtmartial if the victim testified in the

proceedings.

Section 582 requires the issuance of

regulations providing victims with an

application process for permanent

change of station and an appeal

process if that application is

disapproved.

24

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

House (H.R. 1540)

Senate (S. 1867)

of professional military education.

P.L. 112-81

Section 585 adopts the House

language with a technical

amendment.

Discussion: These sections elevate the handling of sexual assault case management, set standards

for record keeping, allow victims to seek transfers or other actions to reduce the possibility of

retaliation, and establish training requirements. The House report language notes, in two sections,

that $45 million is to be set aside for training, although that language does not exist in the

legislation. It is also important to note that those serving as Sexual Assault Response

Coordinators and Sexual Assault Victims Advocates must either be members of the military or

federal employees, thereby preventing private, self-assigned, advocacy groups from financially

exploiting the issue.

CRS Point of Contact: (name redacted), x7-.....

Congressional Research Service

25

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Wounded Warrior Careers Program

Background: Section 594 would require the Secretary of Defense to carry out a careerdevelopment services program for severely wounded warriors of the Armed Forces, and their

spouses if appropriate, during fiscal years 2012 through 2016. The provision directs the Secretary

to obligate $1 million for the program using merit-based or competitive procedures from funds

appropriated for Defense-wide Operation and Maintenance Administrative and Service-wide

Activities. It also requires DOD to submit a cost-benefit analysis of the program to Congress

within one year following enactment of the bill.

The program would be required to include at a minimum the following services:

1. Exploring career options;

2. Obtaining education, skill, aptitude, and interest assessments;

3. Developing veteran-centered career plans;

4. Preparing resumes and education/training applications;

5. Acquiring additional education and training, including internships and

mentorship programs;

6. Engaging with prospective employers and educators when appropriate;

7. Entering into various kinds of occupations (whether full-time, part-time, paid, or

volunteer, or self-employment as entrepreneurs or otherwise);

8. Advancing in jobs and careers after initial employment; and

9. Identifying and resolving obstacles through coordination with the military

departments, other departments and agencies of the federal government.

House (H.R. 1540)

Section 594 would direct the

Secretary of Defense to implement a

program to provide careerdevelopment services to both

current and former members of the

military who were wounded in the

line of duty.

Senate (S. 1867)

No similar provision.

P.L. 112-81

The provision is not adopted

although the conferees note that

DOD has established an Education

and Employment Initiative.

Discussion: The program would provide a range of services including testing and assistance in

developing career plans, preparing resumes, and improving skills. Those services would be

provided at as many as 20 locations in geographic areas with the largest concentrations of

wounded former and current service members. Based on information from DOD’s Office of

Wounded Warrior Care and Transition Policy and the National Organization on Disability, the

Congressional Budget Office (CBO) estimates that implementing this provision would cost $60

million over the 2012-2016 period, assuming that the program opens and maintains 20 locations

in the United States for most of that period. Congress has stated its interest in monitoring the

outcome of DOD’s Education and Employment Initiative.

CRS Point of Contact: Don Jansen, x7-.....

Congressional Research Service

26

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Comptroller General Study of Military Necessity of

Selective Service System (SSS) and Alternatives

Background: The United States ended the involuntary induction of men into the Armed Forces

(“the draft”) in 1973. The requirement that men register for the draft upon reaching age 18 was

suspended in 1975, but reinstated in 1980. Current law requires that

The Selective Service System shall be maintained as an active standby organization, with (1)

a complete registration and classification structure capable of immediate operation in the

event of a national emergency, and (2) personnel adequate to reinstitute immediately the full

operation of the System, including military reservists who are trained to operate such System

and who can be ordered to active duty for such purpose in the event of a national emergency

(including a structure for registration and classification of persons qualified for practice or

employment in a health care occupation essential to the maintenance of the Armed Forces).24

SSS is an independent agency with a budget of about $24 million per year. It has a staff of

approximately 130 civilian employees, 175 National Guard and Reserve officers, and 11,000

trained volunteers who would staff local boards in the event the draft were reinstated.

Since the U.S. Armed Forces became “all volunteer” in 1973, some have questioned the need to

maintain the Selective Service System. Opponents argue that a return to conscription is highly

unlikely and, as such, money spent on SSS is wasteful. They also argue that even if conscription

did need to be reinstated at some time in the future, a new agency could be established and

conscription begun in a fairly short period of time. Supporters of SSS argue that the cost of the

agency is very small, and that the ability to restart conscription rapidly and equitably is an

important strategic hedge. They dispute the notion that an equitable conscription system could be

rapidly put into place if events required it in the future.

House (H.R. 1540)

Section 595 requires the

Comptroller General to conduct a

study on the criticality of SSS to

DOD’s ability to meet “future

military manpower requirements

that are in excess of the ability of the

all-volunteer force” and to

determine fiscal and national security

impacts of three options: (1)

disestablishing SSS, (2) putting SSS

into “deep standby mode”, and (3)

disestablishing SSS, ending

registration, but requiring another

federal department to maintain the

SSS registration databases. The

report is also to include information

on the feasibility, cost, and time

required to reestablish SSS in the

future for each of these options.

24

Senate (S. 1867)

No similar provision.

P.L. 112-81

Section 597 largely adopts the House

provision, while making a few

changes in the description of the

study and adding a month to the

deadline for its completion.

50 U.S.C. Appendix, Section 460(h)

Congressional Research Service

27

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

House (H.R. 1540)

Senate (S. 1867)

P.L. 112-81

Finally, it requires an assessment on

the feasibility of (1) using federal and

state institutions to maintain

registration databases and (2)

integrating “alternative registration

databases” in order to update SSS

databases under each of the three

options.

Discussion: The House provision would require the Government Accountability Office (GAO) to

conduct a study on the Selective Service System to determine the fiscal and national security

implications of several alternatives to the current system. The Senate bill contained no similar

provision. The final bill largely adopts the House provision, while making a few changes in the

description of the report—the report is to assess the necessity of the SSS, rather than its

criticality; the definition of deep standby mode is changed to include personnel sufficient to

conduct “necessary functions”—and extending the deadline for its completion from March 31 to

May 1, 2012.

CRS Point of Contact: (name redacted), x7-.....

Congressional Research Service

28

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Playing of “Taps” at Military Funerals, Memorial

Services, and Wreath Laying Ceremonies

Background: Military funeral honors, memorial services and wreath laying ceremonies include

the playing of a bugle call commonly known as “Taps.” In cases where a trained bugler is not

available, DOD approved the use of a ceremonial bugle that contains a device that plays a

recorded version of Taps. Some have complained that the use of such a recorded device is

unsuitable and inauthentic.

House (H.R. 1540)

Section 596 expresses the sense of

Congress that Taps should be played

by a live solo bugler at military

funerals, memorial services and

wreath laying ceremonies.

Senate (S. 1867)

No similar provision.

P.L. 112-81

The House provision was not

adopted.

Discussion: This language only expressed the sense of the House with regard to the playing of

Taps and does not create a requirement for the performance of Taps at these events.

Reference(s): CRS Report RS21545, Military Funeral Honors and Military Cemeteries:

Frequently Asked Questions, by (name redacted).

CRS Point of Contact: (name redacted), x7-.....

Congressional Research Service

29

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

*Military Pay Raise

Background: Increasing concern with the overall cost of military personnel, combined with

ongoing military operations in Afghanistan, and, at the time, Iraq, has continued to focus interest

on the military pay raise. Title 37 U.S.C. Section 1009 provides a permanent formula for an

automatic annual military pay raise that indexes the raise to the annual increase in the

Employment Cost Index (ECI). The FY2012 President’s Budget request for a 1.6% military pay

raise was consistent with this formula. However, since the attacks on the World Trade Center on

September 11, 2001, (aka “9/11”), Congress has approved the pay raise as the ECI increase plus

0.5%; this occurred in fiscal years 2004, 2005, 2006, 2008, 2009, and 2010. The pay raise was

equal to the ECI in 2007 and 2011.

House (H.R. 1540)

Section 601 supports a 1.6% (equal

to the ECI) across-the-board pay

raise that would be effective January

1, 2012.

Senate (S. 1867)

No similar provision.

P.L. 112-81

No similar provision, Therefore, the

automatic provisions of 37 U.S.C.

1009 will result in a 1.6% across-theboard pay raise effective January 1,

2012.

Discussion: A military pay raise larger or smaller than the permanent formula is not uncommon.

In addition to “across-the-board” pay raises for all military personnel, mid-year and “targeted”

pay raises (targeted at specific grades and longevity) have also been authorized over the past

several years.

The Congressional Budget Office (CBO) estimates that the total cost of a 1.6% military pay raise

would be $1.2 billion in 2012.25

The Senate and the Conference did not address the issue of the military pay raise. As a result, the

automatic provisions of 37 U.S.C. will result in a 1.6% (equal to the Employment Cost Index)

across-the board pay raise effective January 1, 2012.

Reference(s): Previously discussed in CRS Report R41316, FY2011 National Defense

Authorization Act: Selected Military Personnel Policy Issues, coordinated by (name redacted),

and CRS Report R40711, FY2010 National Defense Authorization Act: Selected Military

Personnel Policy Issues, coordinated by (name redacted). See also CRS Report RL33446,

Military

Pay and Benefits: Key Questions and Answers, by (name redacted).

CRS Point of Contact: Charles Henning, x7-.....

25

Congressional Budget Office Cost Estimate, H.R. 1540: National Defense Authorization Act for Fiscal Year 2012,

May 20, 2011, available at http://www.cbo.gov/ftpdocs/122xx/doc12202/hr1540.pdf.

Congressional Research Service

30

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Death Gratuity and for Reserves who Die during

Authorized Stay at their Residence During Inactive

Duty Training.

Background: Samson Luke, a captain in the Arkansas National Guard, went home for the

evening after a day of inactive duty training at Fort Chaffee, fully expecting to return the next

morning. That evening, at his off-base home, Luke died, reportedly of heart problems. Since he

was not on-base at the time, although he was eligible to spend the night on-base or at a nearby

hotel, his surviving wife was not eligible to receive the $100,000 Death Gratuity benefit.26

House (H.R. 1540)

No similar provision.

Senate (S. 1867)

P.L. 112-81

Section 634 would allow those who

are undergoing inactive duty training,

but residing in their own residences

to be eligible for the Death Gratuity.

In addition, the Secretary concerned

may provide for the recovery, care

and disposition of the remains of

such a person. The provision would

be retroactive to Jan. 10, 2010-the

day Captain Luke died.

The House receded with an

amendment that would remove the

retroactive application of the

provision. The conferees

recommend that the Secretary of the

Army use appropriate authority

(including Section 127, title 10 USC)

to equitably resolve such cases of

inactive duty training deaths not

covered by the Death Gratuity,

including those that occurred prior

to enactment of this language.

Discussion: When is a Reservist on duty? Under current law, when such a person is serving on

active duty (such as during a call-up), serving on inactive duty training (such as the routine one

weekend a month duty when members of the National Guard train), traveling to and from such

training, or if away from home as the result of such training. Because Captain Luke returned

home for the evening, he was not considered to be in a training capacity and therefore ineligible

for certain death benefits. The Senate provision would have extended the law to cover individuals

in such situation.

CRS Point of Contact: (name redacted), x7-.....

26

Drop and Gimme Benefits, Arkansas Democrat-Gazette (Little Rock), Dec. 2, 2011: 8.

Congressional Research Service

31

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Special Survivor Indemnity Allowance (SSIA) for

Those Affected by the Survivor Benefit Plan

Annuity Offset for Dependency and Indemnity

Compensation/*Repeal of the Offset

Background: The Survivor Benefit Plan (SBP) provides an annuity to an eligible spouse of a

deceased military member/retiree. Dependency and Indemnity Compensation provides

compensation to a surviving spouse of a member/retiree who suffered a disability that is service

connected. A surviving spouse who is eligible for both will have his or her SBP reduced or offset

on a dollar-for-dollar basis by Dependency and Indemnity Compensation (DIC). For certain

beneficiaries affected by the offset, Section 644 of the National Defense Authorization Act for

Fiscal Year 2008, created a new Special Survivor Indemnity Allowance (SSIA) to be paid to

survivors of covered service members. This monthly allowance, effective October 1, 2008, was

$50, and is scheduled to increase annually by $10 through FY2013. The benefit was scheduled to

end in 2016. However, during the 111th Congress, SSIA was made more generous in that for the

years 2014 through 2017, the amount would increase from $150, to $200, $275, and finally, $310,

after which the benefit will terminate on October 1, 2017 (see the CRS report below). The amount

received under SSIA may not be greater than the amount of the SBP-DIC offset. (SSIA was

extended to survivors of active duty members later in October, 2008.) Critics have noted that with

the earlier repeal of the Social Security offset, survivors could be receiving three government

subsidized benefits based on the same period of service; a form of “triple dipping.”

House (H.R. 1540)

Senate (S. 1867)

Section 651 increases the monthly

amount of SSIA from FY2013

through FY2017 and establishes new

amount from FY2018 through

FY2021 as follows: FY2013 from $90

to $163; FY2014 from $150 to $200;

FY2015 from $200 to $215; FY2016

from $275 to $282; FY2017 from

$310 to $314; FY2018 set at $9;

FY2019 set at $15; FY2020 set at

$20; and FY2021 set at $27.

Section 625 would repeal the SBPDIC offset.

P.L. 112-81

Neither provision was adopted.

Discussion: Efforts in previous years to end the SBP-DIC offset have not been successful. In the

current budget situation, ending the offset appears unlikely. Advocates for these survivors view

SSIA as a better option to provide these beneficiaries more money. Critics note that providing

more money than was contracted for under the original SBP was unjustified, particularly under

these budgetary conditions. The Senate approach was to eliminate the offset entirely.

Reference(s): CRS Report RL31664, The Military Survivor Benefit Plan: A Description of Its

Provisions, by (name redacted).

CRS Point of Contact: (name redacted), x7-.....

Congressional Research Service

32

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

*TRICARE Prime Annual Enrollment Fee Increase

for Military Retirees

Background: TRICARE is a health care program serving uniformed service members, retirees,

their dependents and survivors. Section 701 of H.R. 1540 would limit future increases in

TRICARE Prime enrollment fees for military retirees and their dependents to the annual cost-ofliving adjustment (COLA) for military retirement annuities beginning in fiscal year 2013. Under

current law,27 the Secretary of Defense may adjust TRICARE Prime annual enrollment fees

effective October 1, 2011. The House Armed Services Committee (HASC) Personnel

Subcommittee marked up the original bill to extend a prohibition on TRICARE Prime annual

enrollment fee increases for one year.28 Such provisions have been included regularly in annual

national defense authorizations. However, this provision was removed this year in the HASC

chairman’s mark. By not extending the existing prohibition on fee increases, the bill would allow

the Obama Administration to implement its proposal to increase the annual enrollment fee by $30

per year for individual and $60 per year for family enrollments.29 The Administration also has

proposed to index future increases in those enrollment fees to the per capita growth rate in

national health expenditures as published by the Centers for Medicare and Medicaid Services;

that growth rate is currently projected to be about 5 percent to 6 percent per year over the next

decade.30 In contrast, the Congressional Budget Office (CBO) estimates that under Section 701,

indexing annual enrollment fee increases to the annual increases in the military retirement COLA

(which are based on the consumer price index for urban wage earners and clerical workers) would

limit the fee increases to an average of about 2 percent per year over that same period.

House (H.R. 1540)

Section 701 would limit increases in

the TRICARE Prime annual

enrollment fee for military retirees

to the annual percentage increase in

retired pay.

Senate (S. 1867)

Section 701 contains the same

provision.

P.L. 112-81

Under Section 701, the Senate

receded with an amendment that

would limit the annual increase in

TRICARE Prime enrollment fees to

the amount equal to the increase in

retired pay beginning Oct. 1, 2012,

and would clarify that the basis for

determining increases in these

enrollment fees for FY 2013 and

thereafter is the enrollment fee for

retirees who enrolled for the first

time in FY 2012.

27

10 U.S.C. 1097(e)

Representative Joe Wilson, “Military Personnel Subcommittee Chairman Releases Details of National Defense

Authorization Act,” press release, May 3, 2011, available at http://joewilson.house.gov/News/DocumentSingle.aspx?

DocumentID=239164.

29

Office of the Undersecretary of Defense (Comptroller)/CFO, United States Department of Defense Fiscal Year 2012

Budget Request Overview, February 2011, p. 3-3, available at http://comptroller.defense.gov/defbudget/fy2012/

FY2012_Budget_Request_Overview_Book.pdf.

30

Testimony of Jonathan Woodson, M.D., Assistant Secretary of Defense (Health Affairs) before the Senate Armed

Services Committee Personnel Subcommittee, May 4, 2011, available at http://www.tricare.mil/tma/

congressionalinformation/downloads/2011/05-04-11%20SASCP%20DOD%20Focus%20Hearing%20Statement%20_Woodson_%20-%20FINAL.pdf

28

Congressional Research Service

33

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Discussion: Currently, about 700,000 military retiree households are enrolled in TRICARE

Prime, covering about 1.6 million beneficiaries. If the Administration proposal is implemented as

permitted under the House-passed version of H.R. 1540, the TRICARE Prime enrollment fees in

2012 will be increased to $260 (from $230) for those who enroll as individuals and $520 (from

$460) for those who enroll their families. CBO estimates that limiting future growth in the

enrollment fees to the military retirement COLA would cost $186 million over the 2013–2016

period.

Reference(s): Previously discussed in CRS Report RL34590, FY2009 National Defense

Authorization Act: Selected Military Personnel Policy Issues, coordinated by (name redacted);

CRS Report R40711, FY2010 National Defense Authorization Act: Selected Military Personnel

Policy Issues, coordinated by (name redacted); and CRS Report RS22402,

Increases in Tricare

Costs: Background and Options for Congress, by (name redacted).

CRS Point of Contact: Don Jansen, x7-.....

Congressional Research Service

34

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Behavioral Health Support for Reservists

Background: Section 703 of H.R. 1540 would amend Title 10, U.S.C., to require that the

Secretary of Defense provide to any member of the reserve components performing inactive-duty

training during scheduled unit training assemblies free access to mental health assessments with a

licensed mental health professional who would be available for referrals during duty hours on the

premises of the principal duty location of the member’s unit. Section 703 would further amend

Title 10 to provide that each member of a reserve component of the Armed Forces while

participating in annual training or individual duty training shall have access to behavioral health

support programs. The behavioral health support programs would include one or any combination

of the following: programs providing access to licensed mental health providers in armories,

reserve centers, or other places for scheduled unit training assemblies; and programs providing

training on suicide prevention and post-suicide response.

House (H.R. 1540)

Section 703 would require Reservists

to have access to mental health

assessment services during scheduled

unit training and assemblies.

Senate (S. 1867)

No similar provision.

P.L. 112-81

Under Section 703, the Senate

receded with an amendment that

would make access to mental health

assessments permissive and would

require that funding for these

programs be provided from

operations and maintenance

accounts of the reserve components.

Discussion: CBO estimates that implementing Section 703 would cost $118 million over the

2012-2016 period. CBO based its estimate of this provision’s costs on pilot programs providing

such care to the California and Montana National Guards. For those programs, guard units

contracted with behavioral health professionals to be available during drill weekends. Based on

information from DOD, CBO estimates that the Montana and California programs combined cost

about $1 million per year and covered about 25,000 reserve members. After scaling those costs

upward to cover the roughly 700,000 drilling members of the selected reserve and adjusting for

inflation, CBO estimates this provision would require appropriations of almost $30 million per

year when fully implemented. Costs would be lower in the first year because of the time needed

to establish regulations and set up the required programs.

CRS Point of Contact: Don Jansen, x7-.....

Congressional Research Service

35

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Uniformed Services Family Health Plan Enrollment

Background: Section 704 of H.R. 1540 would amend Title 10, U.S.C., to close enrollment in the

Uniformed Services Family Health Plan (USFHP) to Medicare-eligible beneficiaries of the

military health system. Those currently enrolled in USFHP would be allowed to remain in the

program for as long as they wish. However, anyone who enrolled after the end of fiscal year 2012

would be forced to leave USFHP once they reach the age of 65. At that point, such individuals

would move to the regular Medicare/TRICARE-for-Life benefit. These changes were included in

the Administration’s 2012 Budget.

House (H.R. 1540)

Section 704, prohibits a Medicareeligible military retiree from newly

enrolling in the Uniformed Services

Family Health Plan after September

30, 2012.

Senate (S. 1867)

Section 703 contained a similar

provision.

P.L. 112-81

Section 708 adopts the House

language.

Discussion: USFHP, a TRICARE option available to active duty dependents, retirees and retiree

family members through not-for-profit health care systems in six areas of the United States,

originated separately from the other TRICARE options. Six former, government-owned Public

Health Service (PHS) hospitals were closed in the late 1970s and sold to non-profit health care

entities; now owned by:

•

Johns Hopkins Medicine (MD)

•

Christus Health (TX)

•

Pacific Medical Centers (WA)

•

Martin’s Point Health Care (ME, NH, VT)

•

Brighton Marine Health Center (MA, RI)

•

Saint Vincent Catholic Medical Centers (NY)

These health systems now operate plans similar to TRICARE Prime for military beneficiaries that

are collectively know as the “Uniformed Services Family Health Plan.” Initially, these hospitals

were legislatively “deemed” as equivalent to DOD military hospitals and DOD paid for

beneficiary hospitalizations and outpatient visits. With the advent of TRICARE in 1994,31 DOD

changed its payment model to a per member per month “capitated fee” and the USFHP were

responsible for managing the care. All categories of beneficiaries who live in these geographic

areas are eligible to enroll in the USFHP (both Medicare-eligible and non-Medicare). The law32

currently makes most Medicare-eligible retirees ineligible for TRICARE unless they enroll in and

pay Medicare Part B premiums. Medicare-eligible retirees enrolled in USFHP, however, are not

required to enroll in Medicare Part B. Because DOD believes that it pays a higher capitated rate

than the equivalent Medicare capitated plan, it believes that the Government can reduce

expenditures if future Medicare-eligible USFHP enrollees are required to enroll in Medicare Part

31

32

Section 731 of the National Defense Authorization Act for Fiscal Year 1994 ( P.L. 103-160).

10 U.S.C. 1086.

Congressional Research Service

36

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

B to retain TRICARE coverage under the TRICARE for Life plan. Medicare Part B premiums are

currently $96.40 per month for individuals with incomes less than $85,000 per year. The

Congressional Budget Office (CBO) cost estimate for this provision concurs and estimates that

limiting enrollment in USFHP would result in a net savings to the federal government of about

$76 million over the 2013-2021 period.33

CRS Point of Contact: Don Jansen, x7-.....

33

Congressional Budget Office Cost Estimate, H.R. 1540: National Defense Authorization Act for Fiscal Year 2012,

May 20, 2011, p. 14, available at http://www.cbo.gov/ftpdocs/122xx/doc12202/hr1540.pdf.

Congressional Research Service

37

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

*Unified Medical Command

Background: Section 711 of H.R. 1540 would amend Title 10, U.S.C., to require the President,

with the advice and assistance of the Chairman of the Joint Chiefs of Staff, through the Secretary

of Defense, to establish a unified command for medical. The principal function of the command

would be to provide medical services to the Armed Forces and other health care beneficiaries of

the Department of Defense. The Section would amend Title 10, to add a new Section 167b. The

Section would require that all active military medical treatment facilities, training organizations,

and research entities of the Armed Forces be assigned to the unified medical command, unless

otherwise directed by the Secretary of Defense. The commander of the unified medical command

would hold the grade of general or, in the case of an officer of the Navy, admiral while serving in

that position, without vacating their permanent grade. The commander of the unified medical

command would be appointed to that grade by the President, with the advice and consent of the

Senate, for service in the position. The unified medical command would have the following

subordinate commands:

1. A command that includes all fixed military medical treatment facilities, including

elements of the Department of Defense that are combined, operated jointly, or

otherwise operated in such a manner that a medical facility of the Department of

Defense is operating in or with a medical facility of another department or agency

of the United States.

2. A command that includes all medical training, education, and research and

development activities that have previously been unified or combined, including

organizations that have been designated as a Department of Defense executive

agent.

3. A Defense Health Agency to which would be transferred the TRICARE

Management Activity and all functions of the TRICARE Program.

The commander of the unified medical command would conduct all affairs of the command

relating to medical operations activities including developing programs and doctrine; preparing

and submitting to the Secretary of Defense program recommendations and budget proposals for

the forces assigned to the unified medical command; exercising authority, direction, and control

over the expenditure of funds for the Defense Health Program, forces assigned to the unified

medical command and for military construction funds of the Defense Health Program; training

assigned forces; conducting specialized courses of instruction for commissioned and

noncommissioned officers; and ensuring the interoperability of equipment and forces.

House (H.R. 1540)

Section 711 would require the

establishment of a Unified Medical

Command.

Congressional Research Service

Senate (S. 1867)

No similar provision.

P.L. 112-81

Under Section 716, the Senate

receded with an amendment

requiring the Secretary of Defense to

submit to the congressional defense

committees a report on the options

considered and developed in this

matter and preventing the Secretary

of Defense from implementing any

restructuring of the defense health

system until 120 days after the

Comptroller General submits to

38

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

House (H.R. 1540)

Senate (S. 1867)

P.L. 112-81

Congress a report reviewing each

option.

Discussion: The current organizational structure of the military health system (MHS) has long

been considered by many observers to present an opportunity to gain efficiencies and save costs

by consolidating administrative, management, and clinical functions. Recent Government

Accountability Office testimony summarized these views, stating that

The responsibilities and authorities for the MHS are distributed among several organizations

within DOD with no central command authority or single entity accountable for minimizing

costs and achieving efficiencies. Under the MHS’s current command structure, the Office of

the Assistant Secretary of Defense for Health Affairs, the Army, the Navy, and the Air Force

each has its own headquarters and associated support functions.

DOD has taken limited actions to date to consolidate certain common administrative,

management, and clinical functions within its MHS. To reduce duplication in its command

structure and eliminate redundant processes that add to growing defense health care costs,

DOD could take action to further assess alternatives for restructuring the governance

structure of the military health system. In 2006, if DOD and the services had chosen to

implement one of the reorganization alternatives studied by a DOD working group, a May

2006 report by the Center for Naval Analyses showed that DOD could have achieved

significant savings. Our adjustment of those savings from 2005 into 2010 dollars indicates

those savings could range from $281 million to $460 million annually, depending on the

alternative chosen and the numbers of military, civilian, and contractor positions

eliminated.34

The Administration’s Statement of Administration Policy on H.R. 1540 dated May 24, 2011,

strongly objected to the provision, stating:

The Administration strongly objects to Section 711, which would require the President to

create a new unified combatant command for medical operations. DOD will shortly complete

a study on how to best deliver high-quality medical care to service members and their

families in an effective and cost-efficient manner. Among the options this study will consider

is a joint medical command similar to this provision; however, this Section presumes the

outcome of the study and of decisions to be made by DOD leadership on this important

subject. 35

The Senate amendment allows the process to move forward in a more measured pace.

Reference(s): Previously discussed in CRS Report RL34590, FY2009 National Defense

Authorization Act: Selected Military Personnel Policy Issues, coordinated by (name redacted).

CRS Point of Contact: Don Jansen, x7-.....

34

U.S. Government Accountability Office, Opportunities to Reduce Potential Duplication in Government Programs,

Save Tax Dollars, and Enhance Revenue, GAO-11-635T, May 25, 2011, pp. 3-4, available at http://www.gao.gov/

new.items/d11635t.pdf.

35

U.S. Executive Office of the President, Office of Management and Budget, Statement of Administration Policy, May

24, 2011, available at http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saphr1540r_20110524.pdf

Congressional Research Service

39

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues

Author Contact Information

(name redacted), Coordinator

Specialist in Military Manpower Policy

[redacted]@crs.loc.gov, 7-....

(name redacted)

Analyst in Defense Health Care Policy

[redacted]@crs.loc.gov, 7-....

(name redacted)

Specialist in Military Manpower Policy

[redacted]@crs.loc.gov, 7-....

(name redacted)

Specialist in Military Manpower Policy

[redacted]@crs.loc.gov, 7-....

Congressional Research Service

40

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