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.
Congressional Research Service
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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-.....
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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
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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
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