FY2020 National Defense Authorization Act: Selected Military Personnel Issues
Congressional research reportSep 18, 2020
Ask Donna
What actually matters in this document.
Text
FY2020 National Defense Authorization Act:
Selected Military Personnel Issues
Updated September 18, 2020
Congressional Research Service
https://crsreports.congress.gov
R46107
SUMMARY
FY2020 National Defense Authorization Act:
Selected Military Personnel Issues
Each year, the National Defense Authorization Act (NDAA) provides authorization of
appropriations for a range of Department of Defense (DOD) and national security programs and
related activities. New or clarified defense policies, organizational reform, and directed reports to
Congress are often included. For FY2020, the NDAA (P.L. 116-92) addresses or attempts to
resolve high-profile military personnel issues. Some are required annual authorizations (e.g., endstrengths); some are updates or modifications to existing programs; and some are issues
identified in certain military personnel programs.
In the FY2020 NDAA, Congress authorized end-strengths identical to the Administration’s
FY2020 budget proposal. The authorized active duty end-strength increased by about 1% to
1,339,500. The authorized Selected Reserves end-strength decreased by about 2% to 807,800. A
3.1% increase in basic military pay took effect on January 1, 2020. This increase is identical to
the Administration’s FY2020 budget proposal and equal to the automatic annual adjustment
amount directed by statutory formula (37 U.S.C. §1009).
Congress also directed modifications to several existing personnel programs, including
R46107
September 18, 2020
Bryce H. P. Mendez,
Coordinator
Analyst in Defense Health
Care Policy
Kristy N. Kamarck
Specialist in Military
Manpower
Lawrence Kapp
Specialist in Military
Manpower Policy
Alan Ott
Analyst in Defense and
Intelligence Personnel
Policy
extension of DOD Morale, Welfare, and Recreation (MWR) privileges to Foreign
Service Officers on mandatory home leave;
repeal of the Survivor Benefit Plan (SBP) and Veterans Affairs’ Dependency and
Indemnity Compensation (DIC) offset requirement (i.e., the widows’ tax);
modification of DOD workplace and command climate surveys to include questions
relating to experiences with supremacist activity, extremist activity, or racism;
expansion of Special Victim Counsel services for victims of domestic violence;
clarified roles and responsibilities for senior military medical leaders assigned to the Defense Health
Agency or a service medical department; and
Barbara Salazar Torreon
Senior Research Librarian
prohibition of gender-segregated Marine Corps recruit training;
expansion of spouse employment and education programs, including reimbursement for relicensing costs
associated with military relocations;
medical documentation and tracking requirements for servicemembers or family members exposed to
certain environmental or occupational hazards (e.g., lead, open air burn pits, blast pressure).
As part of the oversight process, several provisions address selected congressional items of interest, including
DOD review of service records of certain World War I veterans for potential eligibility for a posthumously
awarded Medal of Honor;
a process for former servicemembers to appeal decisions issued by a Board of Correction of Military
Records or a Discharge Review Board;
a feasibility study on the creation of a database to track domestic violence military protective orders and
reporting to the National Instant Criminal Background Check System;
transparency on military medical malpractice, including the ability for servicemembers to file
administrative claims against the United States; and
limitations on the reduction of military medical personnel.
Congressional Research Service
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
Contents
Introduction ..................................................................................................................................... 1
*Active Component End-Strength .................................................................................................. 1
*Selected Reserve End-Strength ..................................................................................................... 3
Access to Reproductive Health Services ......................................................................................... 5
*Administration of the Military Health System .............................................................................. 8
Separation, Discharge, and Discharge Review .............................................................................. 13
*Defense Commissary System ...................................................................................................... 21
Diversity and Inclusion ................................................................................................................. 23
*Domestic Violence and Child Abuse ........................................................................................... 27
*Medal of Honor ........................................................................................................................... 30
Military Family Issues ................................................................................................................... 32
Military Medical Malpractice ........................................................................................................ 35
*Military Pay Raise ....................................................................................................................... 37
Military Retirement and Survivor Benefits ................................................................................... 38
*Military Sexual Assault and Sexual Harassment ......................................................................... 40
Screening and Testing for Environmental and Occupational Exposures ....................................... 49
Figures
Figure 1. Comparison of FY2019 Enacted Active Duty End-Strength, FY2020 President's
Budget, and FY2020 Enacted Active Duty End-Strength ............................................................ 2
Figure 2. Comparison of FY2019 Enacted Selected Reserve End-Strength, FY2020
President's Budget and FY2020 Enacted Selected Reserve End-Strength ................................... 4
Contacts
Author Information........................................................................................................................ 53
Congressional Research Service
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
Introduction
Each year, the House and Senate armed services committees take up national defense
authorization bills. The House of Representatives passed its version of the National Defense
Authorization Act for Fiscal Year 2020 (NDAA; H.R. 2500) on July 12, 2019. The Senate passed
its version of the NDAA (S. 1790) on June 27, 2019. These bills contain numerous provisions that
affect military personnel, retirees, and their family members. Provisions in one version may not
be included in the other, may be treated differently, or may be identical to those in the other
versions. Following passage of each chamber’s bill, a conference committee typically convenes to
resolve the differences between the respective chambers’ versions of the bill. The House passed
the FY2020 NDAA conference report on December 11, 2019, and the Senate passed the report on
December 17, 2019. On December 20, 2019, President Donald J. Trump signed the bill into law
(P.L. 116-92).
This report highlights selected personnel-related issues that may generate high levels of
congressional and constituent interest. Related CRS products are identified in each section to
provide more detailed background information and analysis of the issues. For each issue, a CRS
analyst is identified.
Some issues discussed in this report were previously addressed in the FY2019 NDAA (P.L. 115232) and discussed in CRS Report R45343, FY2019 National Defense Authorization Act: Selected
Military Personnel Issues, by Bryce H. P. Mendez et al., or other reports. Issues that were
considered previously are designated with an asterisk in the relevant section titles of this report.
*Active Component End-Strength
Background: The authorized active duty end-strengths for FY2001, enacted in the year prior to
the September 11 terrorist attacks, were as follows: Army (480,000), Navy (372,642), Marine
Corps (172,600), and Air Force (357,000).1 Over the next decade, in response to the demands of
wars in Afghanistan and Iraq, Congress substantially increased the authorized personnel strength
of the Army and Marine Corps. Congress began reversing those increases in light of the
withdrawal of most U.S. forces from Iraq in 2011, the drawdown of U.S. forces in Afghanistan
beginning in 2012, and budgetary constraints. Congress halted further reductions in Army and
Marine Corps end-strength in FY2017, providing slight end-strength increases for both Services
that year. In FY2018 and FY2019, Congress again provided slight end-strength increases for the
Marine Corps, while providing a more substantial increase for the Army. However, the Army did
not reach its authorized end-strength of 483,500 in FY2018 or its authorized end-strength of
487,500 in FY2019, primarily due to missing enlisted recruiting goals. End-strength for the Air
Force generally declined from 2004 to 2015, but increased from 2016 to 2019. End-strength for
the Navy declined from 2002 to 2012, increased in 2013 and remained essentially stable through
2017; it increased again in 2018 and 2019.
Authorized end-strengths for FY2019 and FY2020 are shown in Figure 1.
1 The term end-strength refers to the authorized strength of a specified branch of the military at the end of a given fiscal
year. The term authorized strength, as described in 10 U.S.C. §101(b)(11), means “the largest number of members
authorized to be in an armed force, a component, a branch, a grade, or any other category of the armed forces.” As
such, end-strengths are maximum strength levels. Congress also sets minimum strength levels for the active
component, which may be identical to or lower than the end-strength.
Congressional Research Service
1
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
House-Passed H.R. 2500
Senate-Passed S. 1790
Sec. 401 would authorize a total
FY2020 active duty end-strength of
1,339,500 including
480,000 for the Army
340,500 for the Navy
186,200 for the Marine Corps
332,800 for the Air Force
Sec. 401 would authorize a total
FY2020 active duty end-strength of
1,339,500 including
480,000 for the Army
340,500 for the Navy
186,200 for the Marine Corps
332,800 for the Air Force
Enacted Bill P.L. 116-92
Sec. 401 would authorize a total
FY2020 active duty end-strength of
1,339,500 including
480,000 for the Army
340,500 for the Navy
186,200 for the Marine Corps
332,800 for the Air Force
Discussion: In comparison to FY2019 authorized end-strengths, the Administration’s FY2020
budget proposed a decrease for the Army (-7,500) and increases for the Navy (+5,100), Marine
Corps (+100) and Air Force (+3,700). The administration’s proposed decrease for the Army
reflects the challenges the Army is facing in recruiting a sufficient number of new enlisted
personnel to expand its force. As stated in the Army’s military personnel budget justification
document, “Given the FY 2018 end strength outcome and a challenging labor market for military
recruiting, the Army Active Component has decided to pursue a new end strength growth ramp.
The Army has shifted to a more modest end strength growth ramp of 2,000 Soldiers per year, with
end strength targets of 478,000 in FY 2019 and 480,000 in FY 2020. Beyond FY 2019, the steady
2,000 Solider per year growth increases Active Army end strength while maintaining existing
high quality standards.”2
Section 401 of the enacted bill approved end-strengths identical to the Administration request.
Figure 1. Comparison of FY2019 Enacted Active Duty End-Strength, FY2020
President's Budget, and FY2020 Enacted Active Duty End-Strength
FY2019
FY2020
FY2020
Change from
Enacted
President's Budget
Enacted
FY2019
Army
487,500
480,000
480,000
-7,500
Navy
335,400
340,500
340,500
5,100
Marine Corps
186,100
186,200
186,200
100
Air Force
329,100
332,800
332,800
3,700
1,338,100
1,339,500
1,339,500
1,400
Total Active Duty
End-Strength
Note: Up and down arrows indicate increases and decreases, respectively, from the FY2019 enacted
authorization.
References: Previously discussed in CRS Report R45343, FY2019 National Defense
Authorization Act: Selected Military Personnel Issues, by Bryce H. P. Mendez et al. and similar
reports from earlier years. Enacted figures found in P.L. 115-232.
CRS Point of Contact: Lawrence Kapp.
2 Department of the Army, Fiscal Year 2020 Budget Estimates, Military Personnel, Army, Justification Book,
Washington, DC, March 2019, p. 5, https://www.asafm.army.mil/Portals/72/Documents/BudgetMaterial/2020/
Base%20Budget/Military%20Personnel/01%20Military%20Personnel%20Army.pdf.
Congressional Research Service
2
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
*Selected Reserve End-Strength
Background: The authorized Selected Reserve3 end-strengths for FY2001, enacted the year prior
to the September 11 terrorist attacks, were: 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 The overall authorized
end-strength of the Selected Reserves has declined by about 6% over the past 18 years (874,664
in FY2001 versus 824,700 in FY2019). During this period, the overall decline is mostly attributed
to reductions in Navy Reserve strength (-29,800). There were also smaller reductions in the
authorized strength for the Army National Guard (-7,026), Army Reserve (-5,800), Marine Corps
Reserve (-1,058), Air National Guard (-922), Air Force Reserve (-4,358), and Coast Guard
Reserve (-1,000).
Authorized end-strengths for FY2019 and FY2020 are shown in Figure 2.
House-Passed H.R. 2500
Senate-Passed S. 1790
Sec. 411 would authorize a total
FY2020 Selected Reserve endstrength of 807,800 including:
Army National Guard: 336,000
Army Reserve: 189,500
Navy Reserve: 59,000
Marine Corps Reserve: 38,500
Air National Guard: 107,700
Air Force Reserve: 70,100
Coast Guard Reserve: 7,000
Sec. 411 would authorize a total
FY2020 Selected Reserve endstrength of 807,800 including:
Army National Guard: 336,000
Army Reserve: 189,500
Navy Reserve: 59,000
Marine Corps Reserve: 38,500
Air National Guard: 107,700
Air Force Reserve: 70,100
Coast Guard Reserve: 7,000
Enacted Bill P.L. 116-92
Sec. 411 would authorize a total
FY2020 Selected Reserve endstrength of 807,800 including:
Army National Guard: 336,000
Army Reserve: 189,500
Navy Reserve: 59,000
Marine Corps Reserve: 38,500
Air National Guard: 107,700
Air Force Reserve: 70,100
Coast Guard Reserve: 7,000
Discussion: Relative to FY2019 authorized end-strengths, the Administration’s FY2020 budget
proposed decreases in the Army National Guard (-7,500), Army Reserve (-10,000), and Navy
Reserve (-100), increases for the Air National Guard (+600) and Air Force Reserve (+100), and
no change for the Marine Corps Reserve and Coast Guard Reserve. The Administration’s
proposed decrease for the Army National Guard and the Army Reserve reflected the challenges
those reserve components have had in meeting their authorized strength. According to the Army
National Guard (ARNG) FY2020 military personnel budget justification document:
The ARNG fell short of the FY 2018 National Defense Authorization Act (NDAA)
Congressionally authorized End Strength 343,500 by 8,296 Soldiers due to recruiting
challenges, too few accessions, and to cover increased attrition losses in FY2018… The
ARNG began addressing these issues and challenges in FY 2018 by ramping up the
recruiting force, incentives programs, bonuses, and marketing efforts. While these efforts
are expected to result in additional accessions in FY 2019, they will not be enough to meet
the FY 2019 NDAA authorized End Strength of 343,500. The newly hired force will reach
full production levels by end of the FY 2019 in order to meet the required accessions
3 The Selected Reserves encompass those units and individuals designated as so essential to initial wartime missions
that they have priority over all other Reserves. Members of the Selected Reserve are generally required to perform one
weekend of training each month and two weeks of training each year, for which they receive pay and benefits. Some
members of the Selected Reserve perform considerably more military duty than this, while others may only be required
to perform the two weeks of annual training each year or other combinations of time. Members of the Selected Reserve
can be involuntarily ordered to active duty under all of the principal statutes for reserve activation.
4 P.L. 106-398 §411.
Congressional Research Service
3
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
mission and a projected end strength of 336,000 in FY 2020 and continue the projected
ramp to an end strength of 338,000 by the end of FY 2024. 5
Similarly, the Army Reserve FY2020 Military Personnel budget justification document stated:
In FY 2018, the Army Reserve fell short of its end strength objective by 10,689 Soldiers
due to a challenging recruiting and retention environment…Prior to the FY 2020
President’s Budget request, the Army Reserve recognized it would not meet its FY 2019
end strength goal of 199,500 and subsequently reduced its goal to a more achievable end
strength of 189,250. The Army Reserve continues to set conditions for a successful and
productive recruiting and retention environment in support of achieving an end strength of
189,250 by the end of FY 2019 and sustaining that level through FY 2020.6
Section 411 of the enacted bill approved end-strengths identical to the Administration request.
Figure 2. Comparison of FY2019 Enacted Selected Reserve End-Strength, FY2020
President's Budget and FY2020 Enacted Selected Reserve End-Strength
FY2019
FY2020
FY2020
Change from
Enacted
President's Budget
Enacted
FY2019
Army National Guard
343,500
336,000
336,000
-7,500
Army Reserve
199,500
189,500
189,500
-10,000
Navy Reserve
59,100
59,000
59,000
-100
Marine Corps Reserve
38,500
38,500
38,500
0
Air National Guard
107,100
107,700
107,700
600
Air Force Reserve
70,000
70,100
70,100
100
Coast Guard Reserve
7,000
7,000
7,000
0
824,700
807,800
807,800
-16,900
Total Selected
Reserve End-Strength
Note: Up and down arrows indicate increases and decreases, respectively, from the FY2019 enacted
authorization.
References: Previously discussed in CRS Report R45343, FY2019 National Defense
Authorization Act: Selected Military Personnel Issues, by Bryce H. P. Mendez et al. and similar
reports from earlier years. For more on the Reserve Component see CRS Report RL30802,
Reserve Component Personnel Issues: Questions and Answers, by Lawrence Kapp and Barbara
Salazar Torreon, and CRS In Focus IF10540, Defense Primer: Reserve Forces, by Lawrence
Kapp.
CRS Point of Contact: Lawrence Kapp.
5 Department of the Army, Fiscal Year 2020 Budget Estimates, National Guard Personnel, Army, Justification Book,
Washington, DC, March 2019, p. 7, https://www.asafm.army.mil/Portals/72/Documents/BudgetMaterial/2020/
Base%20Budget/Military%20Personnel/National%20Guard%20Personnel%20Army.pdf.
6 Department of the Army, Fiscal Year 2020 Budget Estimates, Reserve Personnel, Army, Justification Book,
Washington, DC, March 2019, p. 7, https://www.asafm.army.mil/Portals/72/Documents/BudgetMaterial/2020/
Base%20Budget/Military%20Personnel/02%20Reserve%20Personnel%20Army.pdf. The planned Army Reserve endstrength for FY2020 in the budget justification book is 189,500 in the accompanying table, not 189,250 as indicated in
the text.
Congressional Research Service
4
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
Access to Reproductive Health Services
Background: In general, the Department of Defense (DOD) offers certain reproductive health
services in DOD-operated hospitals and clinics—known as military treatment facilities (MTFs)—
or through civilian health care providers participating in TRICARE.7 Reproductive health
services typically include counseling, therapy, or treatment for male or female conditions
affecting “fertility, overall health, and a person’s ability to enjoy a sexual relationship.”8
With regard to contraceptive services, DOD policy requires that all eligible beneficiaries have
access to “comprehensive contraceptive counseling and the full range of contraceptive methods.”9
The policy also requires that DOD provide contraceptive services when “feasible and medically
appropriate,” such as during
a health care visit before or during deployment;
enlisted or officer training;
annual well woman exams and reproductive health screenings;
physical exams; or
when referred after a periodic health assessment.10
With regard to fertility services, DOD offers
diagnostic services (e.g., hormone evaluation and semen analysis);
diagnosis and treatment of illness or injury to the male or female reproductive
system;
care for physically caused erectile dysfunction;11
genetic testing;12
certain prescription fertility drugs;13 and
certain assisted reproductive services for “seriously or severely ill/injured” active
duty servicemembers.14
7 The Department of Defense (DOD) administers certain health entitlements under chapter 55 of Title 10, U.S. Code,
through its TRICARE program. For more on TRICARE, see CRS In Focus IF10530, Defense Primer: Military Health
System, by Bryce H. P. Mendez.
8 Military Health System, “Women’s Health,” accessed July 29, 2019, https://www.health.mil/Military-Health-Topics/
Operation-Live-Well/Preventive-Health/Womens-Health.
9 Defense Health Agency (DHA) Procedural Instruction 6200.02, Comprehensive Contraceptive Counseling and
Access to the Full Range of Methods of Contraception, May 13, 2019, https://www.health.mil/Reference-Center/
Policies/2019/05/13/Comprehensive-Contraceptive-Counseling.
10 Ibid., p. 10. The periodic health assessment is an annual health assessment used to monitor the health status of
servicemembers and “provide timely, evidence-based preventive health care, information, counseling, treatment, or
testing as appropriate.” For more information, see Health Affairs Policy 06-006, Periodic Health Assessment Policy for
Active Duty and Selected Reserve Members, February 16, 2006, https://health.mil/Reference-Center/Policies/2006/02/
16/Periodic-Health-Assessment-Policy-for-Active-Duty-and-Selected-Reserve-Members.
11 DHA, “Assisted Reproductive Services,” accessed November 20, 2019, https://www.tricare.mil/CoveredServices/
IsItCovered/AssistedReproductiveServices.
12 TRICARE Policy Manual 6010.60-M, Genetic Testing and Counseling, Chapter 6, Section 3.1, updated February 21,
2018, https://manuals.health.mil/pages/DisplayManualHtmlFile/TP15/55/AsOf/TP15/C6S3_1.html.
13 32 C.F.R. §199.4(e) authorizes these services when medically necessary.
14 DOD policy authorizes certain assisted reproductive services, such as in-vitro fertilization, artificial insemination, or
Congressional Research Service
5
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
Active duty military personnel generally incur no out-of-pocket costs for DOD health care
services.15 If a servicemember receives reproductive health services that are not directly provided,
referred by a DOD or TRICARE provider, or otherwise covered by DOD, then they may be
required to pay for those services.16 Other DOD beneficiaries may be subject to cost-sharing
based on their TRICARE health plan, beneficiary category, and type of medical service
received.17
House-Passed H.R. 2500
Senate-Passed S. 1790
Enacted Bill P.L. 116-92
Sec. 701 would amend 10 U.S.C.
§1074d to mandate TRICARE
coverage of “all methods of
contraception approved by the
Food and Drug Administration”
(FDA) for female servicemembers
and retirees. Beneficiaries enrolled
in TRICARE Prime or TRICARE
Select would have no cost-sharing
requirements.
Sec. 701 is a similar provision to
House Sec. 701. Coverage
requirements would take effect on
January 1, 2020.
Not adopted.
Sec. 5701 would revise Section
701 of the bill, providing TRICARE
program coverage of “all methods
of contraception approved by the
[FDA],” to instead take effect on
January 1, 2030.
Not adopted.
Sec. 702 would require DOD to
provide written and oral
information on “all methods of
emergency contraception approved
by the [FDA]” to all sexual assault
survivors presenting at a military
treatment facility. DOD would also
be required to provide emergency
contraception, upon request of a
sexual assault survivor.
No similar provision.
Not adopted.
Sec. 709 would allow DOD to
offer assisted reproductive services
to active duty servicemembers or
their spouses with no cost share.
No similar provision.
Not adopted.
Sec. 722 would direct the
Secretary of Defense to conduct a
pilot program that allows for
cryopreservation and storage of
sperm and eggs of active duty
servicemembers deploying to a
combat zone.
No similar provision.
Not adopted.
Sec. 728 would require DOD to
conduct a study on infertility among
active duty servicemembers.
No similar provision.
Not adopted.
cryopreservation and storage of embryos, for servicemembers seriously or severely ill/injured on active duty. For more
on these services, see https://www.tricare.mil/CoveredServices/IsItCovered/AssistedReproductiveServices and
Assistant Secretary of Defense for Health Affairs memorandum, “Policy for Assisted Reproductive Services for the
Benefit of Seriously or Severely Ill/Injured (Category II or III) Active Duty Services Members,” April 3, 2012.
15 10 U.S.C. §1075a(a)(1). Members of the Reserve Component who are enrolled in TRICARE Reserve Select, a
premium-based health plan available for Selected Reservists, may be subject to certain out of pocket costs. For more
information on TRICARE Reserve Select, see https://tricare.mil/trs.
16 This scenario generally includes military personnel who seek health care services from a private health care provider
and do not file a claim for TRICARE reimbursement, or are seeking non-FDA approved reproductive health services.
17 An overview of the 2019 cost-sharing features (including pharmacy co-pays) can be found at https://tricare.mil/-/
media/Files/TRICARE/Publications/Misc/Costs_Sheet_2019.pdf.
Congressional Research Service
6
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
House-Passed H.R. 2500
Senate-Passed S. 1790
Enacted Bill P.L. 116-92
Sec. 734 would require DOD, in
consultation with the Department
of Homeland Security (with respect
to the U.S. Coast Guard), to
establish a standardized family
planning education program for
servicemembers during the first
year of service and at other times
deemed appropriate.
No similar provision.
Not adopted.
Discussion: Currently, DOD offers comprehensive contraceptive counseling and a range of
contraceptive methods. However, non-active duty beneficiaries may be subject to certain costsharing requirements depending on the type of contraceptive service rendered, the accompanying
procedures or follow-up evaluations that may be clinically necessary, or health care provider
nonparticipation in the TRICARE network. Other reproductive health services, such as
cryopreservation of human gametes (i.e., sperm or eggs), are generally not offered or covered by
TRICARE unless narrow criteria are met.18
While there are no provisions in the enacted bill relating to access to reproductive health services,
the committee report (S.Rept. 116-48) accompanying the Senate bill (S. 1790) includes a similar
reporting requirement as House Section 728.19 The committee report directs DOD to “conduct a
study on the incidence of infertility among members of the Armed Forces” and provide a report to
the House and Senate armed services committees by June 1, 2020.20 The study is to include the
following elements:
number of servicemembers diagnosed with a common cause of infertility;
number of servicemembers whose infertility has no known cause;
incidence of miscarriage among female servicemembers;
infertility rates of female servicemembers, as compared to their civilian
counterparts;
demographic information on infertile servicemembers and potential hazardous
environmental exposures during service;
availability of infertility services for servicemembers who desire such treatment,
including waitlist times at MTFs offering reproductive health services;
criteria used by the military services to determine service-connection for
infertility; and
DOD policies for ensuring geographic stability for servicemembers receiving
treatment for infertility.21
Not adopted were provisions to expand TRICARE coverage of specific reproductive health
services to certain eligible beneficiaries.
References: CRS In Focus IF11109, Defense Health Primer: Contraceptive Services, by Bryce
H. P. Mendez.
18 See footnote 14.
19 See p. 211 of S.Rept. 116-48.
20 Ibid.
21 Ibid.
Congressional Research Service
7
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
CRS Point of Contact: Bryce H.P. Mendez.
*Administration of the Military Health System
Background: DOD operates a health care delivery system that serves approximately 9.5 million
beneficiaries.22 The Military Health System (MHS) administers the TRICARE program, which
offers health care services at military treatment facilities (MTFs) or through participating civilian
health care providers.23 Historically, the military services have administered the MTFs, while the
Defense Health Agency (DHA) administered the private sector care program of TRICARE. DHA
is a combat support agency that enables the Army, Navy, and Air Force medical services to
provide a medically ready force and ready medical force to combatant commands in both
peacetime and wartime.24
In 2016, Congress found that the organizational structure of the MHS could be streamlined to
sustain the “medical readiness of the Armed Forces, improve beneficiaries’ access to care and the
experience of care, improve health outcomes, and lower the total management cost.”25 Section
702 of the FY2017 NDAA (P.L. 114-328) directed significant reform to the MHS and
administration of MTFs by October 1, 2018. Reforms include
transfer of administration and management of MTFs from each respective service
surgeon general to the DHA Director;
reorganization of DHA’s internal structure; and
redesignation of the service surgeons general as principal advisors for their
respective military service, and as service chief medical advisor to the DHA.
In June 2018, DOD submitted its implementation plan to Congress. The implementation plan
details how DOD is to reform the MHS to a “streamlined organizational model that standardizes
the delivery of care across the MHS with less overhead, more timely policymaking, and a
transparent process for oversight and measurement of performance.”26 Congress later revised the
MHS reform mandate by further clarifying certain tasks relating to the transfer of MTFs, the roles
and responsibilities of the DHA and the service surgeons general, and by extending the deadline
for implementing reform efforts to September 30, 2021. DOD later revised its plan to accelerate
certain tasks.
On October 1, 2019, the military services transferred the administration and management of their
U.S.-based MTFs to the DHA. The military services are to continue to administer their overseas
MTFs until transfer to the DHA in 2020–2021.
22 DOD, Evaluation of the TRICARE Program: Fiscal Year 2019 Report to Congress, April 8, 2019, p. 19.
23 For more on TRICARE, see CRS In Focus IF10530, Defense Primer: Military Health System, by Bryce H. P.
Mendez.
24 For more on the DHA, see https://health.mil/About-MHS/OASDHA/Defense-Health-Agency.
25 H.Rept. 114-840, p. 1066.
26 DOD, Report to the Armed Services Committees of the Senate and House of Representatives, Final Plan to
Implement Section 1073c of Title 10, United States Code, June 30, 2018, p. 4, https://health.mil/Reference-Center/
Congressional-Testimonies/2018/06/28/Reform-of-Administration-of-the-Defense-Health-Agency-and-Military-MTFs.
Congressional Research Service
8
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
House-Passed H.R. 2500
Senate-Passed S. 1790
Enacted Bill P.L. 116-92
Organizational Management
No similar provision
Organizational Management
Sec. 711 would amend 10 U.S.C.
§1073c by inserting additional
responsibilities for the DHA
Director in administering the MTFs,
revising the qualifications for the
DHA Assistant Director for Health
Care Administration, clarifying the
responsibilities for certain DHA
Deputy Assistant Directors, and
further defining an MTF.
Organizational Management
Sec. 711 adopts Senate Sec. 711
with an amendment that allows the
Secretary of Defense to reassign a
civil service employee from a DOD
component to a military
department, or vice-versa.
No similar provision.
Sec. 712 would amend Section 712
of the FY2019 NDAA (P.L. 115232) to further clarify the role of
the service surgeons general in
supporting medical requirements of
combatant commands and the role
of the Military Departments in
maintaining administrative control
of military personnel assigned to
MTFs.
Sec. 712 adopts Senate Sec. 712
with an amendment that further
clarifies MHS support to the
combatant commanders’ medical
requirements.
No similar provision.
Sec. 713 would establish a fouryear minimum requirement for the
tour of duty as an MTF commander
or director.
Not adopted.
No similar provision.
Sec. 715 would require DOD to
establish up to four “regional
medical hubs” to support
combatant command operational
medical requirements.
Not adopted.
No similar provision.
Sec. 5703 would require the
Secretary of Defense to preserve
the resources assigned to the Army
Medical Research and Materiel
Command (USAMRMC),
notwithstanding its administrative
and mission realignments to the
Army Futures Command and the
Defense Health Agency.
Sec. 737 adopts Senate Sec. 5703
with an amendment that requires
the Secretary of Defense to
preserve USAMRMC resources at a
certain baseline level through
September 30, 2022, and maintain
the Command’s designation as a
“Center of Excellence for Joint
Biomedical Research, Development
and Acquisition Management.”
Military Medical Workforce
Sec. 718 would limit certain
changes to military medical endstrength.
Military Medical Workforce
No similar provision.
Military Medical Workforce
Sec. 719 adopts House Sec. 718
with an amendment that provides
certain exceptions to allow for
military medical end-strength
reductions.
Sec. 749 would require the
Secretary of Defense to provide a
report to Congress on operational
medical and dental personnel
requirements.
No similar provision.
Not adopted.
Congressional Research Service
9
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
House-Passed H.R. 2500
Senate-Passed S. 1790
Enacted Bill P.L. 116-92
Civilian Partnerships
Sec. 726 would require DOD to
study the use of “military-civilian
integrated health delivery systems”
and provide a report to Congress
no later than 180 days after
enactment.
Civilian Partnerships
No similar provision.
Civilian Partnerships
Sec. 743 adopts House Sec. 726
with an amendment that requires
DOD to include a plan for further
development on military-civilian
integrated health delivery systems.
Sec. 751 would require DOD to
partner with academic health
centers and establish a “University
Affiliated Research Center” that
would focus on care for wounded
servicemembers.
No similar provision.
Not adopted.
No similar provision.
Sec. 727 would allow DOD to
conduct a pilot program using
military-civilian partnerships to
enhance interoperability and
medical surge capabilities of the
National Disaster Medical System.
Sec. 740 adopts Senate Sec. 727
with an amendment that expands
the locations where a pilot program
can take place.
Discussion: The enacted bill includes a number of provisions clarifying certain responsibilities
for DHA and other medical entities with service-specific responsibilities, such as administering
and managing MTFs, providing health service support to combatant commanders, performing
medical research, recruiting and retaining medical personnel, and establishing military-civilian
partnerships.
Organizational Management. Section 711 of the enacted bill amends 10 U.S.C. §1073c to clarify
the qualifications of the DHA assistant director and the deputy assistant directors, and allow DOD
to reassign certain civil service employees from a military department to a DOD component, or
vice-versa. The provision also adds the following to DHA’s existing roles and responsibilities:
provision of health care;
clinical privileging and quality of care programs;27
MTF capacities to support clinical currency and readiness standards;28 and
coordination with the military services for joint staffing.
Section 712 of the enacted bill clarifies the roles and responsibilities of the service surgeons
general, to include
support to combatant commanders for operational and deployment requirements;
support to DHA by assigning military medical personnel to MTFs;
27 DOD defines clinical privileging as the “granting of permission and responsibility of a healthcare provider to
independently provide specified or delineated healthcare within the scope of his or her license, certification, or
registration.” MHS, “Clinical Privileging,” accessed December 6, 2019, https://health.mil/Reference-Center/GlossaryTerms/2013/10/29/Clinical-Privileging.
28 P.L. 114-328 §725(b) directed DOD to establish clinical currency and readiness standards. DOD and the military
services identified core competencies that certain military medical providers are required to maintain as critical
wartime medical readiness skills.
Congressional Research Service
10
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
development of combat medical capabilities; and
medical readiness of the Armed Forces.
In 2018, Congress directed DOD to consolidate most of its medical research programs under the
DHA.29 While the military services are to retain certain medical research responsibilities, the
DHA is to be responsible for coordinating all research, development, test, and evaluation
(RDT&E) funds appropriated to the defense health program (DHP), including the
congressionally-directed medical research programs (CDMRP).30 The U.S. Army Medical
Research and Materiel Command (USAMRMC) administers the CDMRP and executes a variety
of RDT&E funds appropriated to the Department of the Army, DHP, and other DOD-wide
operation and maintenance accounts.31 USAMRMC executes most of the annual DHP RDT&E.
In FY2017, USAMRMC executed approximately 76% ($377.5 million) of the total DHP RDT&E
funds.32 As of June 1, 2019, USAMRMC restructured and realigned its responsibilities under two
separate DOD entities: the DHA and Army Futures Command.33 Depending on the research
mission (DHP requirements vs. service-specific requirements), USAMRMC resources were also
reallocated accordingly.34
Section 737 of the enacted bill directs the Secretary of Defense to retain certain manpower and
funding resources with USAMRMC. The provision requires USAMRMC manpower and funding
to be at a baseline of no less than “the level of such resources as of the date of the enactment of
this Act until September 30, 2022.”35 On October 1, 2022, DOD is to: (1) transfer USAMRMC
resources programmed to the Army’s research, development, test, and evaluation account to the
DHP; and (2) maintain USAMRMC as a “Center of Excellence for Biomedical Research,
Development and Acquisition Management.”
Military Medical Personnel. DOD’s budget request for FY2020 includes a proposal to reduce its
active duty medical force by 13% (14,707 personnel) in order to maintain a workforce that is
“appropriately sized and shaped to meet the National Defense Strategy requirements and allow
the MHS to optimize operational training and beneficiary care delivery.”36 Compared to FY2019
levels, the Army would have the largest reduction in medical forces (-16%), followed by the Air
29 P.L. 114-328 §711.
30 For more on the Congressionally Directed Medical Research Programs (CDMRP), see CRS In Focus IF10349,
Congressionally Directed Medical Research Programs Funding for FY2020, by Bryce H. P. Mendez.
31 On May 31, 2019, the Department of the Army redesignated the U.S. Army Medical Research and Materiel
Command (USAMRMC) to the U.S. Army Medical Research and Development Command (USAMRDC). Ramin A.
Khalili, "Same Goal, Same Mission: Town Hall Marks USAMRMC Redesignation to USAMRDC," U.S. Army, May
31, 2019, https://go.usa.gov/xdxnn.
32 Department of the Army, U.S. Army Medical Research and Material Command, “Command Overview” brief, p. 8,
October 18, 2018.
33 C.J. Lovelace, "Army Logistics Leaders Focus on Medical Materiel's Role in Readiness," Army Medical Logistics
Command, September 10, 2019, https://amlc.army.afpims.mil/News/Article/1956385/army-logistics-leaders-focus-onmedical-materiels-role-in-readiness/. For more on the Army Futures Command, see CRS Insight IN10889, Army
Futures Command (AFC), by Andrew Feickert.
34 Ibid.
35 The FY2020 NDAA was enacted on December 22, 2019.
36 The net reduction reflects DOD’s proposal to reduce the active duty medical force assigned to the Military Health
System by 22% (17,991 personnel), while concurrently increasing the active duty medical force assigned to deployable
or warfighting units, military service headquarters, or combatant commands by 10% (3,284 personnel). For more on
this proposal, see CRS Insight IN11115, DOD’s Proposal to Reduce Military Medical End Strength, by Bryce H. P.
Mendez; and DOD, Defense Budget Overview, March 2019, p. 2-5, https://comptroller.defense.gov/Portals/45/
Documents/defbudget/fy2020/fy2020_Budget_Request_Overview_Book.pdf.
Congressional Research Service
11
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
Force (-15%), and the Navy (-7%).37 DOD's initial plan to implement these reductions include (1)
transferring positions (also known as billets) from the MHS to new health service support
positions in deployable or warfighting units, military service headquarters, or combatant
commands; (2) transferring billets from the MHS to the military departments for repurposing as
nonmedical assets; and (3) converting certain military billets to civilian billets.38
Section 719 of the enacted bill limits DOD actions to reduce or realign its active duty medical
force until certain internal reviews, analyses, measurements, and outreach actions are conducted
within 180 days of enactment and at least 90 days after a report to the House and Senate armed
services committee on such actions have been provided. The report is to include also the
department’s plan to reduce or realign its military medical force. In addition, the provision
contains certain exceptions that allow DOD to proceed with reducing or realigning certain
positions. The exceptions are
administrative billets assigned to a service medical department that has been
vacant since at least October 1, 2018;
nonclinical billets that were identified in the President’s FY2020 budget
submission and not to exceed a total of 1,700; and
service medical department billets solely assigned to a headquarters office and
not dually assigned to support a deployable medical unit.39
Civilian Partnerships. The MHS states that its “success depends on building strong partnerships
with the civilian health care sector.”40 As a high-priority initiative, the MHS maintains numerous
partnerships with civilian health care organizations, academic institutions, and research entities to
enhance or supplement military medical readiness and deliver the health entitlements authorized
in chapter 55 of Title 10, U.S. Code.41 Section 740 of the enacted bill authorizes DOD to conduct
a pilot program to improve medical surge capabilities of the National Disaster Medical System
and interoperability with certain civilian health care organizations and other federal agencies.42 If
exercised by the Secretary of Defense, pilot program sites are to be located “in the vicinity of
major aeromedical and other transport hubs and logistics centers of the Department of Defense.”
37 DOD, Defense Health Program Fiscal Year (FY) 2020 Budget Estimates, March 2019, p. DHP-1,
https://comptroller.defense.gov/Portals/45/Documents/defbudget/fy2020/budget_justification/pdfs/
09_Defense_Health_Program/Vol_I_Sec_9_PB-11A_Personnel_Summary_DHP_PB20.pdf.
38 U.S. Congress, House Committee on Appropriations, Subcommittee on Defense, Defense Health Programs, prepared
by Mr. Tom McCaffery, Principal Deputy Assistant Secretary of Defense (Health Affairs) and Vice Admiral Bono,
Director, Defense Health Agency, 116th Cong., 1st sess., April 3, 2019 (Washington: GPO, 2019), p. 8,
https://docs.house.gov/meetings/AP/AP02/20190403/109223/HHRG-116-AP02-Wstate-BonoR-20190403.PDF.
39 A service medical department may assign individual personnel to multiple billets. For example, a military physician
could be placed in a billet assigned to an administrative setting, such as a headquarters office, and be assigned to a
deployable medical unit. Personnel in this type of assignment primarily work in an administrative setting, unless
otherwise training or mobilizing with their deployable medical unit.
40 MHS, “Initiatives and Areas of Impact,” accessed October 15, 2019, https://www.health.mil/About-MHS/MHSInitiatives.
41 Ibid.
42 The National Medical Disaster System (NDMS) is a coordinated effort between certain federal, state, and local
government entities, and civilian health care organizations that provide health and other social services during certain
declared emergencies. The NDMS is authorized under 42 U.S.C. §300hh-1 and administered by the Secretary of Health
and Human Services. For more on the NDMS, see https://www.phe.gov/Preparedness/responders/ndms/Pages/
default.aspx.
Congressional Research Service
12
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
Section 751 of the enacted bill directs DOD to study existing military-civilian integrated health
delivery systems and the activities conducted that promote value-based care, measurable health
outcomes, patient safety, access to care, critical wartime readiness skills, and cost. The provision
requires DOD to submit a report to the House and Senate armed services committees, within 180
days of enactment, on the study’s findings and a plan for further development of military-civilian
health partnerships.
References: Previously discussed in CRS Report R45343, FY2019 National Defense
Authorization Act: Selected Military Personnel Issues, by Bryce H. P. Mendez et al.; CRS In
Focus IF11273, Military Health System Reform, by Bryce H. P. Mendez; CRS Report
WPD00010, Military Health System Reform, by Bryce H. P. Mendez; CRS Insight IN11115,
DOD’s Proposal to Reduce Military Medical End Strength, by Bryce H. P. Mendez; and CRS
Report R45399, Military Medical Care: Frequently Asked Questions, by Bryce H. P. Mendez.
CRS Point of Contact: Bryce H.P. Mendez.
Separation, Discharge, and Discharge Review
Background: Each Military Department and the Department of Homeland Security has a board
for correction of military records (BCMR) and a discharge review board (DRB).43 An application
to change a reason for separation or a service characterization is typically made to a DRB.
A BCMR has general authority to correct an error in, or remove an injustice from, an individual’s
service record.44 It provides an administrative process for a current or former servicemember to
request a record correction, or present a monetary claim associated with the correction.45 Each
BCMR is composed of at least three members. A request for record correction must be made
within three years of discovering an alleged error or injustice.46
A DRB has specific authority to change an individual’s reason for separation or service
characterization.47 It provides an administrative process for a former active duty servicemember
to request a discharge review regarding a reason for separation or a service characterization,
however, a DRB may not review a discharge ordered by a general court-martial.48 Each DRB is
composed of at least three members.49 A request for discharge review must be made within fifteen
years of the discharge.50
Administrative Separation – Enlisted Personnel. A separation is an administrative process that
transitions a servicemember to former servicemember status or from active to reserve status. It
43 10 U.S.C. §1552 (BCMR); 10 U.S.C. §1553 (DRB).
44 32 C.F.R. §581.3 (Army BCMR); 32 C.F.R. Pt. 723 (Naval BCNR); 32 C.F.R. Pt. 865, Sub-Pt. A (Air Force
BCMR); 33 C.F.R. Pt. 52 (Coast Guard BCMR).
45 A Federal court may compel the Coast Guard BCMR to act under 5 U.S.C. §706(1) when requested to do so by a
BCMR applicant who has not obtained a decision within ten months (14 U.S.C. §2507 (BCMR Deadline)).
46 10 U.S.C. §1552(b) allows BCMRs to waive the three-year time limit in the “interest of justice” or for good cause.
47 32 C.F.R. §581.2 (Army DRB); 32 C.F.R. Pt. 724 (Naval DRB); 32 C.F.R. Pt. 865 Sub-Pt. B (Air Force DRB); 33
C.F.R. Pt. 51 (Coast Guard DRB).
48 A favorable review under 10 U.S.C. §1553 supersedes a bar to veterans’ benefits if it complies with the requirements
of 38 U.S.C. §5303(e)(1).
49 The minimum number of DRB members was reduced from five to three by the FY 2020 NDAA (P.L. 116-93, §522).
50 10 U.S.C. §1553(a). If a DRB application is not timely, the servicemember may apply to a BCMR because it may
excuse a failure to file within three years after discovery if it finds it to be in the interest of justice (footnote 46).
Congressional Research Service
13
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
may be voluntary (servicemember-initiated) or involuntary (Military Service-initiated) and it
must be based on an authorized reason.
Separation Reasons – DOD Enlisted Personnel. There are 16 reasons authorized by DOD for
enlisted servicemember voluntary and involuntary separations.51 A Military Department may
authorize additional reasons.
DOD Enlisted Personnel Voluntary and Involuntary Separation Reasons
Expiration of service obligation
Unsatisfactory performance
Unsatisfactory reserve participation
Change in service obligations
Drug abuse rehabilitation failure
Secretarial plenary authority
Convenience of the Government
Alcohol abuse rehabilitation failure
Military Department reasons
Disability
Misconduct
Weight control failure
Defective enlistments and induction
Separate in lieu of court-martial
—
Entry-level conduct/performance
Security
—
Separation Reasons – Coast Guard Enlisted Personnel. There are 14 reasons authorized by the
Coast Guard for enlisted servicemember voluntary and involuntary separations, which are largely
similar to the DOD reasons, but they are distinguishable in some instances.52
Coast Guard Enlisted Personnel Voluntary and Involuntary Separation Reasons
Enlistment expires
Security
Service obligation fulfilled
Misconduct
Convenience of the Government
Court-martial sentence
Dependency or hardship
Entry-level separation
Minority (age)
For the good of the Service
Disability
Care of Newborn Children
Unsuitability
Temporary separation
Service Characterization – Enlisted Personnel. The administrative characterization of service
that occurs after an administrative separation from a Military Service may affect eligibility for
veterans’ benefits, employment opportunities, and some government programs.53 A voluntary or
an involuntary separation process results in a service characterization, which includes:
Honorable. This service characterization is made after a voluntary or an
involuntary separation when the quality of service has met acceptable conduct
and performance standards. The decision is based on a pattern of behavior, not
isolated incidents.
General (Under Honorable Conditions). This service characterization is made
after an involuntary separation when the quality of service is satisfactory, but
lacking in merit. A Military Service is required to inform an individual in writing
that this service characterization may result in ineligibility for veterans’ education
benefits and civil service retirement credit for time spent on active duty, and that
51 DOD, Instruction 1332.14, Enlisted Administrative Separations, April 12, 2019, pp. 9-24.
52 Coast Guard Commandant, Instruction M1000.4, Military Separations, August 2018, p. 1-59.
53 Ibid, Enlisted Administrative Separations, pp. 26-29. Basic eligibility for VA benefits depends upon, among other
matters, the character of service. Service characterized as honorable satisfies basic eligibility (38 C.F.R. §3.12).
Congressional Research Service
14
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
it may result in substantial prejudice in civilian life. Additionally, some states
may not pay unemployment compensation based on this service characterization.
Under Other Than Honorable (OTH) Conditions. This service characterization is
made after an involuntary separation when the quality of service establishes a
pattern of behavior that is a significant departure from the conduct required. A
Military Service is required to inform an individual in writing that this service
characterization may result in ineligibility for many or all veterans’ benefits
under both Federal and State laws, and that it may result in substantial prejudice
in civilian life. Since 2017, there is also a requirement to inform the individual
that he or she may however petition the Department of Veterans Affairs (VA) to
receive specific benefits.54
Uncharacterized Service. A period of service can also be designated as
uncharacterized, which typically occurs following a separation for a void
enlistment or unsatisfactory entry-level conduct or performance (first 180 days).
A servicemember who is absent without leave for more than 30 days, dropped
from the rolls of a unit, and declared a deserter will also have such a designation
after separation and upon discharge.55
Administrative Separation – Commissioned Officers. The reasons for voluntary and involuntary
separations of officer personnel in DOD and the Coast Guard are generally the same.56 The
specific authorities to separate commissioned officers from a Military Service are authorized by
statute.57 The reasons for involuntary separation of an officer include:
substandard performance of duty;
misconduct or moral or professional dereliction;
retention not clearly consistent with national security interests;
sentence by court-martial; and
dropping from the rolls (DFR).58
Service Characterization – Commissioned Officers. When an officer is administratively
separated for misconduct, moral or professional dereliction, or in the interest of national security,
the administrative characterization of service will be honorable, general (under honorable
conditions), or under other than honorable conditions.59 The characterization of service is based
on a pattern of behavior and an officer’s entire duty performance rather than an isolated incident.
However, there are limited circumstances in which conduct reflected by a single incident may
54 P.L. 115-91, §528.
55 Dropping from the unit rolls is an administrative procedure used to remove a servicemember from the unit of
assignment, but it does not end the servicemember’s military status. Whereas, a dropping from the rolls separation does
end such status.
56 DOD, Instruction 1332.30, Commissioned Officer Administrative Separations, May 22, 2020, pp. 7-8; Coast Guard
Commandant, Instruction M1000.4, Military Separations, August 2018, pp. 1-1; 1-19-1-23.
57 10 U.S.C. §§1181-1186; 14 U.S.C. §§2158-2163.
58 Ibid, Commissioned Officer Administrative Separations, p. 25. A DFR separation for an officer is an administrative
action that is taken in limited circumstances and it terminates a commissioned officer’s military status along with any
rights, benefits, and pay to which he or she may have otherwise been entitled because of that status.
59 Ibid, p. 18.
Congressional Research Service
15
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
provide the basis for the characterization of service. The service of an officer who is dropped
from the rolls of the military service will be uncharacterized.60
Punitive Separation. A court-martial conviction can result in a punitive service characterization if
the sentence imposed by the court includes a Dismissal, Dishonorable Discharge, or Bad
Conduct Discharge.61 A Dismissal applies only to commissioned officers, commissioned warrant
officers, cadets, and midshipmen and may be adjudged only by a general court-martial.62 A
Dishonorable Discharge applies only to enlisted personnel and warrant officers who are not
commissioned and may be adjudged only by a general court-martial. A Bad-Conduct Discharge
applies only to enlisted personnel and may be adjudged by a general court-martial and by a
special court-martial. A Dismissal or Dishonorable Discharge bars VA benefits.63
Discharge. A discharge is a specific administrative procedure that completes the separation
process. It represents the expiration or termination of a service obligation and manifests severance
from military service. The two main elements of a discharge are the reason for separation and the
service characterization. In addition to a discharge order issued to the servicemember, a discharge
from active military service authorized under title 10 of the U.S. Code is commonly memorialized
in all Military Services, including the Coast Guard, with a Defense Department Form (DD) 214
(Certificate of Release or Discharge from Active Duty). Uncharacterized service is documented
only by the discharge order.64
Discharge Review. The administrative remedy available to an individual for evaluating the
separation reason, separation procedures, and service characterization regarding former service is
a discharge review by the relevant Service’s DRB.65 However, a 2020 Harvard Law School study
suggests that such changes are infrequent and it reported that the upgrade rates in fiscal year 2018
were 13 percent in the Army, 11 percent in the Navy (includes Marine Corps), and 8 percent in
the Air Force.66
Objective of Discharge Review. The objective of a discharge review is to examine the propriety
and equity of the applicant's discharge.67 It is supposed to evaluate whether the Military Service
that separated and discharged the servicemember complied with its relevant policies, standards,
and procedures in relation to the:
separation reason;
separation procedures; and
service characterization.
60 Ibid.
61 10 USC §856 (Art. 56, Uniform Code of Military Justice (UCMJ));
62 Manual for Courts-Martial United States (MCM), 2019; Rules for Courts-Martial (RCM) 1003(b)(8).
63 38 U.S.C. §5303(a).
64 DOD, Directive 1336.01, Certificate of Release or Discharge from Active Duty (DD Form 214/5 Series), January 23,
2019. A discharge from military service in the National Guard that is authorized under title 32 of the U.S. Code is
commonly memorialized with a National Guard Bureau (NGB) Form 22 (National Guard Report of Separation and
Record of Service) (National Guard, Regulation 600-200, Enlisted Personnel Management, July 31, 2009, §6-17).
65 DOD, Directive 1332.41, Boards for Correction of Military Records (BCMRs) and Discharge Review Boards
(DRBs), April 23, 2007, pp. 2-3.
66 Legal Services Center of Harvard Law School, Turned Away, How VA Unlawfully Denies Health Care to Veterans
with Bad Paper Discharges, 2020, p. 8.
67 DOD, Instruction 1332.28, Discharge Review Board (DRB) Procedures and Standards, April 4, 2004, §E4.1.
Congressional Research Service
16
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
A board’s prior discharge review decisions have no precedential effect and do not bind the review
of subsequent cases.
Scope of Discharge Review. Under the DOD standard of review, the scope of a discharge review
is limited largely to confirming a presumption of administrative regularity, unless there is
substantial evidence that shows the decision for the separation reason or the service
characterization was arbitrary or clearly wrong.68 The Coast Guard standard of review is generally
the same as the DOD standard, but it is distinguishable in one instance.69 Among other matters, an
applicant for a discharge review related to traumatic brain injury (TBI) or post-traumatic stress
disorder (PTSD) may present medical evidence provided by VA, DOD, and civilian health care
providers.
Propriety Standard of Discharge Review. A discharge shall be deemed proper unless, based on
substantial evidence, in the course of the discharge review, it is determined that:
An error of fact, law, procedure, or discretion exists associated with the discharge
at the time of issuance; and that the rights of the applicant were prejudiced
thereby (such error shall constitute prejudicial error if there is substantial doubt
that the discharge would have remained the same if the error had not been made);
or
A change in policy by the Military Service of which the applicant was a member,
made expressly retroactive to the type of discharge under consideration, requires
a change in the discharge.70
Equity Standard of Discharge Review. A discharge shall be deemed to be equitable unless,
based on substantial evidence:
In a discharge review, it is determined that the policies and procedures under
which the applicant was discharged differ in material respects from those
currently applicable on a Service-wide basis to discharges of the type under
consideration provided that:
Current policies or procedures represent a substantial enhancement of the
rights afforded a respondent in such proceedings; and
There is substantial doubt that the applicant would have received the same
discharge if relevant current policies and procedures had been available to
the applicant at the time of the discharge proceedings under consideration.
At the time of issuance, the discharge was inconsistent with standards of
discipline in the Military Service of which the applicant was a member.
68 Ibid, §E3.2.12.6. The substantial evidence standard of review applied to a discharge review by a DRB in DOD to
rebut the administrative regularity presumption is distinguishable from the preponderance of evidence standard of
review applied to a record correction by a BCMR in the Military Services to rebut such a presumption, except the
Navy, which uses the substantial evidence standard of review for naval record corrections, which includes the Marnie
Corps (See 32 C.F.R. §§581.3(e), 865.4, 723.3(e), and 33 C.F.R. §52.24(b)).
69 The standard of review for propriety in the Coast Guard differs from the standard in DOD because the Coast Guard
standard does not include the language: “such error shall constitute prejudicial error if there is substantial doubt that the
discharge would have remained the same if the error had not been made” (33 C.F.R. §51.6). This omission suggests
that the Coast Guard applies a DRB standard of review other than substantial evidence to rebut the administrative
regularity presumption, possibly a preponderance of evidence. The DOD and Coast Guard standards of review for
equity are the same.
70 Ibid, Discharge Review Board (DRB) Procedures and Standards, §E4.2.
Congressional Research Service
17
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
In the course of a discharge review, it is determined that relief is warranted based
upon consideration of the applicant's service record and other evidence presented
to the DRB viewed in conjunction with the factors listed in this paragraph and the
regulations under which the applicant was discharged, even though the discharge
was determined to have been otherwise equitable and proper at the time of
issuance.71
Special Procedures for Discharge Review. A DRB must expedite any discharge review related to
TBI or PTSD and ensure that such review is accorded sufficient priority.72 This review must also
consider any medical information from a VA or civilian health care provider presented by the
servicemember as evidence. Additionally, expedited discharge reviews must be conducted with a
liberal consideration for how the TBI or PTSD may have contributed to the reason for the
separation or the service characterization.73
House-Passed H.R. 2500
Senate-Passed S. 1790
Enacted Bill P.L. 116-92
Oversight, Process, Procedure, and Training
No similar provision.
Sec. 547. Reduction in Required
Number of Members of Discharge
Review Boards. Amends 10 U.S.C.
§1553 to reduce the minimum
number of members comprising a
DRB from five to three.
Sec. 522. Reduction in required
number of members of discharge
review boards. Amends 10 U.S.C.
§1553 to reduce the minimum
number of members comprising a
DRB from five to three.
Sec. 522. Prohibition on reduction in
the number of personnel assigned to
duty with a service review agency.
Amends 10 U.S.C. §1559(a) to
extend the prohibition on reducing
the number of military and civilian
personnel assigned to duty with the
service review agency until
December 31, 2025.
No similar provision
Sec 524 Prohibition on reduction in
the number of personnel assigned to
duty with a service review agency.
Amends 10 U.S.C. §1559(a) to
extend the prohibition on reducing
the number of military and civilian
personnel assigned to duty with the
service review agency until
December 31, 2025.
Sec. 530E. Training of members of
boards for correction of military
records and discharge review boards
on sexual trauma, intimate partner
violence, spousal abuse, and related
matters. Requires the curriculum of
training for BCMR and DRB
members include training on sexual
trauma, intimate partner violence,
spousal abuse, and the various
responses of individuals to trauma.
Sec. 551. Training of members of
boards for correction of military
records and discharge review boards
on sexual trauma, intimate partner
violence, spousal abuse, and related
matters. Requires the curriculum of
training for BCMR and DRB
members include training on sexual
trauma, intimate partner violence,
spousal abuse, and the various
responses of individuals to trauma.
Sec. 525. Training of members of
boards for correction of military
records and discharge review boards
on sexual trauma, intimate partner
violence, spousal abuse, and related
matters. Requires the curriculum of
training for BCMR and DRB
members include training on sexual
trauma, intimate partner violence,
spousal abuse, and the various
responses of individuals to trauma.
No similar provision.
Sec. 546. Repeal of 15-year statute
of limitations on motions or requests
for review of discharge or dismissal
from the Armed Forces. Would
eliminate the 15-year statute of
limitations on requests for review
by a DRB.
Not adopted.
71 Ibid, §E4.3.
72 10 U.S.C. §1553(d).
73 Ibid.
Congressional Research Service
18
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
House-Passed H.R. 2500
Senate-Passed S. 1790
Enacted Bill P.L. 116-92
No similar provision.
Sec. 548. Enhancement of personnel
on boards for the correction of military
records and discharge review boards.
Would expand the types of health
care professionals who can provide
medical evidence or diagnosis of
PTSD, TBI, or another mental
health disorder and to be
considered by a BCMR or DRB.
Not adopted.
No similar provision.
Sec. 549. Inclusion of intimate
partner violence and spousal abuse
among supporting rationales for
certain claims for corrections of
military records and discharge review.
Would expand the types of cases in
which a BCMR or DRB must
accord liberal consideration to
evidence for PTSD or TBI related
to sexual trauma, intimate partner
violence, spousal abuse, or combat.
Not adopted.
No similar provision.
Sec. 552. Limitations and
requirements in connection with
separations for members of the Armed
Forces who suffer from mental health
conditions in connection with a sexrelated, intimate partner violencerelated, or spousal-abuse offense.
Would require that a mental health
care professional corroborate a
mental health condition not
amounting to a disability that is
based on being a victim of a sexrelated, intimate partner violencerelated, or spousal abuse-related.
Not adopted.
No similar provision.
Sec. 553. Liberal consideration of
evidence in certain claims by boards
for the correction of military records
and discharge review boards. Would
require all claims based on certain
conditions relating to a claimant’s
discharge or dismissal to be
reviewed with liberal consideration.
Not adopted.
Sec. 523. Advisory committee on
record and service review boards.
Would establish a Defense
Advisory Committee on Record
and Upgrade Review Boards to
advise the Secretary of Defense on
the best structure, practice, and
procedures.
No similar provision.
Not adopted.
Secretary of Defense Review
Congressional Research Service
19
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
House-Passed H.R. 2500
Sec. 521. Establishment of board of
appeals regarding denied requests for
upgraded discharges and dismissals.
Would require the Secretary of
Defense to establish a board of
discharge appeals to hear appeals of
requests for upgraded discharges
and dismissals that had been denied
by the service review agencies.
Senate-Passed S. 1790
Enacted Bill P.L. 116-92
No similar provision.
Sec. 523. Establishment of process to
review a request for upgrade of
discharge or dismissal. Requires a
process for Secretary of Defense
final review of a Military
Department DRB decision that uses
existing resources and personnel
(new process, but not a new
entity).
Sec. 550. Advice and counsel of
trauma experts in review by boards for
correction of military records and
discharge review boards of certain
claims. Requires a DRB or BCMR
review based in whole or in part on
TBI or PTSD related to combat or
sexual trauma to seek advice from
designated specialists.
Sec. 521. Advice and counsel of
trauma experts in review by boards for
correction of military records and
discharge review boards of certain
claims. Requires a DRB or BCMR
review based in whole or in part on
TBI or PTSD related to combat or
sexual trauma to seek advice from
designated specialists.
DRB and BCMR Special Advisors
Sec. 530D. Advice and counsel of
trauma experts in review by boards for
correction of military records and
discharge review boards of certain
claims. Requires a DRB or BCMR
review based in whole or in part on
TBI or PTSD related to combat or
sexual trauma to seek advice from
designated specialists.
Sexual Orientation Discharge Review
Sec. 530H. Review of discharge
characterization. If requested by a
former servicemember, would
require a discharge review of a
separation based on sexual
orientation without applying the
presumption of administrative
regularity that requires substantial
evidence to show that a separation
or characterization decision was
not proper and correct.
No similar provision.
Sec. 527. Correction of certain
discharge characterizations. Allows
servicemembers whose reason for
separation was based on sexual
orientation to seek a discharge
review without the presumption of
administrative regularity that a
reason for separation or service
characterization decision was
proper and correct.
Discussion: The enacted bill includes six out of fourteen proposed discharge review or military
record correction provisions: three addressing oversight, process, procedure, or training; one
addressing a DOD process to review Military Department discharge review decisions; one
addressing DRB special advisors; and one addressing separations based on sexual orientation.74
Oversight, Process, Procedure, and Training. Section 522 of the enacted bill reduces the number
of required DRB members from five to three, which was already the typical minimum number of
required BCMR members. If overall service review agency personnel requirements remain
unchanged, reducing the number of DRB members and reallocating the previously required
fourth and fifth members to new DRBs could presumably increase the number of DRBs available.
Section 524 of the enacted bill amends 10 U.S.C. §1559 to extend previously authorized
restrictions on reducing personnel levels at service review agencies until December 31, 2025. The
provision also requires each Service Secretary to provide Congress a service review agency plan
for reducing application backlogs and maintaining personnel resources therein. Section 525 of the
enacted bill amends currently mandated training for DRB and BCMR members to include
74 Section 5546 of S. 1790 would have nullified the bill’s DRB and BCMR related provisions (“Part III of subtitle D of
title V, and the amendments made by that part, shall have no force or effect.”), but it was not adopted.
Congressional Research Service
20
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
curricula on sexual trauma, spousal abuse, intimate partner violence, and the various responses to
these events.75
Secretary of Defense Review. Section 523 of the enacted bill requires a process for Secretary of
Defense final review of a Military Department discharge review decision if requested by a former
servicemember who has exhausted all other administrative remedies for discharge review. If
determined to be appropriate, the Secretary of Defense may recommend that the Secretary of the
relevant Military Department change a servicemember’s reason for separation or service
characterization. This review process is to be established with existing resources not later than
January 1, 2021. Section 523 did not contain a concomitant process for the Secretary of
Homeland Security to conduct such a review of a Coast Guard discharge review decision.
DRB and BCMR Special Advisors. Section 521 of the enacted bill requires a DRB or BCMR to
seek advice and counsel from a psychiatrist, psychologist, or social worker with specialized
training for cases involving TBI or PTSD as a result of combat, sexual trauma, intimate partner
violence, or spousal abuse.
Sexual Orientation Discharge Review. Under Section 527 of the enacted bill, the presumption of
administrative regularity that a previous reason for separation or a service characterization was
correct and proper no longer applies to a discharge based on sexual orientation. This change
relieves the former servicemember of the burden to show by substantial evidence that a discharge
was not proper or correct.
CRS Point of Contact: Alan Ott.
*Defense Commissary System
Background: Over the past several decades, Congress has been concerned with improving the
Defense Commissary Agency (DeCA) system, mandating 12 reports or studies between 1989 and
2015 that considered the idea of consolidating the three military exchanges and the commissary
agency.76 Recent reform proposals have sought to reduce DeCA's reliance on appropriated funds
without compromising patrons' commissary benefits or reducing the revenue generated by DOD's
military exchanges, which are nonappropriated fund (NAF) entities that fund morale, welfare, and
recreation (MWR) facilities on military installations. However, 10 U.S.C. §2482 prohibits the
Defense Department from undertaking consolidation without new legislation. Section 627 of the
FY2019 NDAA (P.L. 115-232) required the Secretary of Defense to conduct a study to determine
the feasibility of consolidating commissaries and military exchange entities into a single defense
resale system.
The study, The Department of Defense Report on the Development of a Single Defense Resale
System, April 29, 2019, concluded that the benefits of consolidating DeCA and the military
exchanges into one defense resale entity far outweighed the costs. This DOD study “projected net
savings of approximately $700M–$1.3B of combined appropriated and nonappropriated funding
over a five-year span, and recurring annual savings between $400M-$700M thereafter.”77
Opponents of consolidation maintain that DOD is moving forward without considering the risk
75 10 U.S.C. §1552 note.
76 The three military exchanges are the Army and Air Force Exchange (AAFES), Marine Corps Exchange (MCX), and
Navy Exchange (NEX). DOD, The Department of Defense Report on the Development of a Single Defense Resale
System, April 29, 2019, p. 2, https://go.usa.gov/xpreX.
77 Ibid., p. 3.
Congressional Research Service
21
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
that consolidation could cost more than anticipated and fail to result in projected savings in
operational costs.78 This could result in higher prices for patrons and curtail support for MWR
programs. In the FY2019 NDAA, Congress authorized $1.3 billion for DeCA to operate 236
commissary stores on military installations worldwide, employing a workforce of over 12,500
civilian full-time equivalents (FTE).79
House-Passed H.R. 2500
Senate-Passed S. 1790
Enacted Bill P.L. 116-92
Sec. 631 would require a
Government Accountability Office
(GAO) review of the defense resale
optimization study.
No similar provision.
Sec. 633 adopts House Sec. 631
requiring GAO review of the
defense resale optimization study
and submit to Congress by April 1,
2020.
Sec. 632 would require the
Secretary of Defense to submit a
report to Congress on the
management of commissaries and
exchanges.
No similar provision.
Not adopted.
Sec. 634 would require an
extension of certain morale,
welfare, and recreation privileges to
Foreign Service officers on
mandatory home leave.
No similar provision.
Sec. 641 adopts House Sec. 634
extending certain MWR privileges
to Foreign Service Officers on
mandatory home leave.
No similar provision.
Sec. 641 would authorize a single
Defense Resale System and would
require the Under Secretary of
Defense for Personnel and
Readiness to coordinate with the
DOD Chief Management Officer to
maintain oversight of business
transformation efforts and other
matters.
Sec. 631 adopts Senate Sec. 641.
No similar provision.
Sec. 642 would require treatment
of fees on services provided as
supplemental funds for commissary
operations.
Not adopted.
No similar provision.
Sec. 643 would require
procurement by commissary stores
of certain locally sourced products.
Sec. 632 adopts Senate Sec. 643
requiring that the dairy products
and fruits and vegetables to be
procured locally, to the extent
practicable, for commissary stores
while maintaining mandated patron
savings.
Discussion: Section 633 of the enacted bill adopts House Section 631. The enacted provision
requires the Government Accountability Office (GAO) to review DOD’s business case analysis
(pricing, sales, measuring customer savings, timetable for consolidation, etc.) before merging the
various resale entities into a single entity. Elements of the GAO report is to include data on the
78 Karen Jowers, “Is DoD Moving Too Quickly to Merge Commissaries and Exchanges?” Military Times, August 22,
2019, at https://www.militarytimes.com/pay-benefits/2019/08/22/is-dod-moving-too-quickly-to-merge-commissariesand-exchanges/.
79 DOD Office of the Under Secretary of Defense (Comptroller) Chief Financial Officer, Defense Budget Overview
Fiscal Year 2020 Budget Request, March 2019, p. 2-7 (PDF p.28) and Figure 2.2 Military Family Support Programs
p. 2-8 (PDF p. 29) at https://comptroller.defense.gov/Budget-Materials/Budget2020/.
Congressional Research Service
22
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
financial viability of a single defense resale entity and the ability of commissaries and exchanges
to support MWR programs after consolidation. The enacted provision directs that GAO provide
an interim report no later than March 1, 2020, and a final report no later than June 1, 2020. The
Senate-passed bill had no similar provision.
Section 632 of the House-passed bill would have required a report to Congress by the Defense
Secretary regarding the management practices of military commissaries and exchanges no later
than 180 days after enactment. This report would have included “a cost-benefit analysis with the
goals of reducing the costs of operating military commissaries and exchanges by $2,000,000,000
during fiscal years 2020 through 2024” while not raising costs for patrons. The Senate-passed bill
had no similar provision. Section 632 was not adopted in the enacted bill.
Section 641 of the enacted bill adopts House Section 634. The enacted provision amends section
1065 of Title 10, U.S. Code, to extend MWR privileges to Foreign Service Officers on mandatory
home leave by permitting the use of military lodging effective January 1, 2020. The Senatepassed bill had no similar provision.
Section 631 of the enacted bill adopts Senate Section 641. The enacted provision requires the
Under Secretary of Defense for Personnel and Readiness (USD[P&R]) to coordinate with the
DOD Chief Management Officer to maintain oversight of the business transformation efforts.
This provision also requires a DOD executive resale board to advise the USD(P&R) on the
implementation of sustainable, complementary operations of the defense commissary system and
the exchange stores system. The enacted provision also requires DOD to “field new technologies
and best business practices for information technology for the defense resale system” and
“implement cutting-edge marketing and advertising opportunities.” This provision also amends
Section 2483(b) of Title 10, U.S. Code, to allow DOD to include advertising commissary sales on
materials available within commissary stores and at other on-base locations in the operating
expenses of defense commissaries.
Section 642 of the Senate-passed bill would have amended section 2483(c) of Title 10, U.S.
Code, to authorize fees collected by DeCA on services provided to secondary patron groups (like
DOD contactors) to offset commissary operating costs. The enacted bill did not adopt this
provision.
Section 632 of the enacted bill adopts Senate Section 643. The enacted provision requires
commissary stores to procure locally sourced products such as dairy products, fruits, and
vegetables as available while maintaining mandated patron savings. The House-passed bill had no
similar provision.
References: CRS Report R45343, FY2019 National Defense Authorization Act: Selected Military
Personnel Issues, section on "Defense Commissary System" and similar reports from earlier
years; and CRS In Focus IF11089, Defense Primer: Military Commissaries and Exchanges, by
Kristy N. Kamarck and Barbara Salazar Torreon.
CRS Point of Contact: Barbara Salazar Torreon.
Diversity and Inclusion
Background: Throughout the history of the Armed Forces, Congress has used its constitutional
authority to establish criteria and standards for individuals to be recruited, advance through
promotion, and be separated or retired from military service. DOD and Congress have established
some of these criteria through policy and law based on demographic characteristics such as race,
sex, and sexual orientation. In the past few decades there have been rapid changes to certain laws
Congressional Research Service
23
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
and policies regarding diversity, inclusion, and equal opportunity – in particular authorizing
women to serve in combat arms occupational specialties and the inclusion of lesbian, gay,
bisexual, and transgender (LGBT) individuals. Some of these changes remain contentious and
face continuing legal challenges.
House-Passed H.R. 2500
Senate-Passed S. 1790
Enacted Bill P.L. 116-92
Sec. 526 would require the
Secretary of Defense to update and
implement the DOD Diversity and
Inclusion Strategic Plan.
No similar provision.
Sec. 529 adopts House Sec. 526 with
an amendment requiring the plan to be
implemented within one year of
enactment.
Sec. 594 would require certain
surveys to ask respondents about
whether they have ever
experienced supremacist activity,
extremist activity, or racism.
No similar provision.
Sec. 593 adopts House Sec. 594 with
amendment requiring questions about
whether a survey respondent
witnessed, experienced, or reported
extremist activity.
Sec. 597 would require DOD to
submit a report on the number of
waivers denied on the basis of a
transgender-related condition.
No similar provision.
Sec. 596 adopts House Sec. 597 with
an amendment clarifying required data
elements and protecting personally
identifiable and protected health
information.
Sec. 530B would direct that
eligibility requirements for entering
military service account only for the
ability of an individual to meet
gender-neutral occupational
standards without regard race,
color, national origin, religion, and
sex (including gender identity and
sexual orientation).
No similar provision.
Not adopted.
Sec. 561 would prohibit gendersegregated Marine Corps recruit
training.
No similar provision.
Sec. 565 adopts House Sec. 561.
Sec. 1099I would require each
component to share lessons learned
and best practices on progress of
gender integration implementation.
No similar provision.
Not adopted.
Sec. 1099J would require the
military departments to examine
strategies to recruit and retain
women.
No similar provision.
Not adopted.
Discussion: In the FY2009 NDAA (P.L. 110-417), Congress authorized the creation of the
Military Leadership Diversity Commission (MLDC).80 Following that effort, in 2012, DOD
developed and issued a five-year Diversity and Inclusion Strategic Plan.81 In 2013, as part of the
FY2013 NDAA (P.L. 112-239), Congress required DOD to develop and implement a plan
regarding diversity in military leadership.82 The House bill includes several provisions that would
80 P.L. 110-417 §596.
81 DOD, Diversity and Inclusion Strategic Plan, 2012-2017, https://diversity.defense.gov/Portals/51/Documents/
DoD_Diversity_Strategic_Plan_%20final_as%20of%2019%20Apr%2012%5B1%5D.pdf.
82 P.L. 112-239 §519 was codified in 10 U.S.C. §656.
Congressional Research Service
24
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
address diversity and inclusion, while the Senate bill has none. Section 526 of the House bill
would require DOD to design and implement a five-year strategic plan that is consistent with the
2018 National Military Strategy beginning on January 1, 2020.83 Section 529 of the enacted bill
adopts the House provision and requires DOD to implement the new strategic plan within one
year of enactment.
Existing law requires DOD to conduct surveys on racial and gender issues.84 Section 594 of the
House bill would require that workplace and equal opportunity, command climate, and workplace
and gender relations (WGR) surveys ask respondents whether they have ever experienced
supremacist activity, extremist activity, racism, or anti-Semitism. A modified provision was
adopted in the enacted bill, which requires questions be included in appropriate surveys on
whether respondents experienced, witnessed, or reported extremist activity.85 The enacted
provision does not define extremist activity or specify the frequency for such survey questions.
DOD has recently initiated a number of shifts in policy with regard to individuals who identify as
transgender. Current policy, which went into effect on April 12, 2019, disqualifies any individual
from appointment, enlistment, or induction into the service if they have a history of cross-sex
hormone therapy or sex reassignment or genital reconstruction surgery.86 The policy also
disqualifies individuals with a history of gender dysphoria unless they were stable in their
biological sex for 36 consecutive months prior to applying for admission into the Armed Forces.87
However, the policy allows for transgender persons to “seek waivers or exceptions to these or any
other standards, requirements, or policies on the same terms as any other person.”88 Those
individuals in the service who initially seek military medical care after the effective date of the
policy may receive counseling for gender dysphoria and may be retained without a waiver if (1) a
military medical provider has determined that gender transition is not medically necessary to
protect the health of the individual; and (2) the member is willing and able to adhere to all
applicable standards associated with his or her biological sex. Section 597 of the House bill
would have required DOD to submit an annual report on the number of servicemembers who
sought a waiver prior to accession or while in service on the basis of a transgender-related
condition. Section 596 of the enacted bill adopts the House provision and includes clarifying
language as to how data elements should be reported. It also requires DOD to protect personally
identifiable and health information of members. This reporting requirement expires in 2023. In
addition, the conference report accompanying the enacted bill states
83 For more on the 2018 National Military Strategy, see https://www.jcs.mil/Portals/36/Documents/Publications/
UNCLASS_2018_National_Military_Strategy_Description.pdfand https://dod.defense.gov/Portals/1/Documents/pubs/
2018-National-Defense-Strategy-Summary.pdf.
84 These surveys are required by 10 U.S.C. §481 and 10 U.S.C. §1561 note.
85 DOD policy prohibits members from individually advocating for, or participating in, organizations that advocate for
“supremacist, extremist, or criminal gang doctrine, ideology, or causes, including those that advance, encourage, or
advocate illegal discrimination based on race, creed, color, sex, religion, ethnicity, or national origin or those that
advance, encourage, or advocate the use of force, violence, or criminal activity or otherwise advance efforts to deprive
individuals of their civil rights.” DOD Instruction 1325.06, Handling Dissident and Protest Activities Among Members
of the Armed Forces, February 22, 2012, https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/
132506p.pdf.
86 DOD Defense-type Memorandum 19-004, Military Service by Transgender Persons and Persons with Gender
Dysphoria, March 12, 2019, https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dtm/DTM-19-004.pdf?ver=
2019-03-13-103259-670.
87 DOD defines biological sex as, “a person’s biological status as male or female based on chromosomes, gonads,
hormones, and genitals.” Ibid., p. 14.
88 Ibid., p. 2.
Congressional Research Service
25
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
In determining whether an applicant with a disqualifying diagnosis of gender dysphoria or
history of gender transition treatment or surgery merits a waiver to permit his or her service
in the military, the conferees encourage Service-designated waiver authorities to consider
such a waiver under the same circumstances as they would for an applicant who is not
transgender, but has been diagnosed with analogous conditions or received analogous
treatments, presuming the individual meets all other standards for accession. 89
Entry into the Armed Forces by enlistment or appointment (officers) requires applicants to meet
certain physical, medical, mental, and moral standards. While some of these standards are
specified in law (e.g., 10 U.S.C. §504), DOD and the Services generally establish these standards
through policy and regulation. The Services may require additional qualification standards for
entry into certain military occupational specialties (e.g., pilots, special operations forces). By law,
qualification standards for military career designators are required to be gender-neutral.90 Section
530B would require that service entry standards account only for the ability of an individual to
meet gender-neutral occupational standards and could not include any criteria relating to the
“race, color, national origin, religion, or sex (including gender identity or sexual orientation) of an
individual.”91 This provision was not adopted.
Women were historically prohibited from serving in certain combat roles by law and policy until
December 3, 2015, when the Secretary of Defense opened all combat roles to women who can
meet gender-neutral standards.92 Entry level and occupational-specific training has been gender
integrated across the military services, with the exception of Marine Corps basic training (boot
camp). In 2019, the Marines graduated the first gender-integrated boot camp class at Marine
Recruit Depot Parris Island in South Carolina. In a statement to Congress, Lieutenant General
David Berger noted that there were no significant variations in the performance of genderintegrated units relative to gender-segregated units.93 Section 561 of the House bill would prohibit
gender segregated Marine Corps recruit training at Marine Corps Recruit Depot Parris Island no
later than five years after the date of enactment, and at Marine Corps Recruit Depot San Diego no
later than eight years after the date of enactment. Section 565 of the enacted bill adopts this
provision.
In addition, section 1099I would require the Armed Forces components to share lessons learned
and best practices on the progress of their gender integration implementation plans as
recommended by the Defense Advisory Committee on Women in the Services (DACOWITS).94
Finally, section 1099J would require the military departments to examine successful strategies for
recruitment and retention of women in foreign militaries, as recommended by DACOWITS. The
final bill did not adopt either of these provisions (sections 1099I and 1099J).
References: CRS Report R44321, Diversity, Inclusion, and Equal Opportunity in the Armed
Services: Background and Issues for Congress, by Kristy N. Kamarck, and CRS Insight IN11086,
89 H.Rept. 116-333, p. 1247.
90 P.L. 103-160 §543, as amended by P.L. 113-66 §523; 10 U.S.C. 113 note.
91 Gender identity as defined in this provision is the “gender-related identity, appearance, mannerisms, or other gender-
related characteristics of an individual, regardless of the individual’s designated sex at birth.”
92 DOD, "Carter Opens All Military Occupations, Positions to Women," press release, December 3, 2015,
https://www.defense.gov/Newsroom/News/Article/Article/632536/carter-opens-all-military-occupations-positions-towomen/.
93 U.S. Congress, Senate Committee on Armed Services, Hearing to Consider the Nomination of Lieutenant General
David H. Berger to be Commandant of the Marine Corps, 116th Cong., 1st sess., April 30, 2019.
94 DACOWITS reports, meeting notes, and recommendations can be found here: https://dacowits.defense.gov/ReportsMeetings/.
Congressional Research Service
26
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
Military Personnel and Extremism: Law, Policy, and Considerations for Congress, by Kristy N.
Kamarck. CRS In Focus IF11147, Defense Primer: Active Duty Enlisted Recruiting, by Lawrence
Kapp.
CRS Points of Contact: Kristy N. Kamarck.
*Domestic Violence and Child Abuse
Background: The Family Advocacy Program (FAP) is the congressionally-mandated program
within DOD devoted to “clinical assessment, supportive services, and treatment in response to
domestic abuse and child abuse and neglect in military families.”95 As required by law, the FAP
provides an annual report to Congress on child abuse and neglect and domestic abuse in military
families.96 Approximately half of military servicemembers are married and there are
approximately 1.6 million dependent children across the active and reserve components.97
According to DOD statistics, in FY2018, the rate of reported child abuse or neglect in military
homes was 13.9 per 1,000 children, an increase from the previous year’s rate of 13.7 per 1,000
children.98 There were 26 child abuse-related fatalities, relative to 17 fatalities in FY2017. The
rate of reported spousal abuse in FY2018 was 24.3 per 1,000 military couples, a decrease from
the FY2017 rate of 24.5 per 1,000 couples – with 13 spouse abuse fatalities recorded.99 Since
FY2006, DOD has been collecting data on unmarried intimate partner abuse. In FY2018, there
were 1,024 incidents of intimate partner abuse that met criteria involving 822 victims and 2
fatalities.100
House-Passed H.R. 2500
Senate-Passed S. 1790
Enacted Bill P.L. 116-92
Sec. 542 would expand Special
Victim Counsel (SVC) services for
victims of domestic violence,
establish minimum SVC staffing
levels, would create a position for
SVC paralegals, and would require a
report to Congress on SVC staffing.
Sec. 541 would allow the service
secretaries to extend SVC services
to certain military and militaryaffiliated civilian personnel who are
alleged victims of domestic violence
or a sex-related offense.
Sec. 548 adopts Senate Sec. 541 and
requires a report to Congress (within
120 days of enactment) on planned
implementation and resource needs
and changes to legislation required to
carry out this program.
Sec. 621 would remove delays in
the commencement of transitional
compensation for certain eligible
military dependents.
H.Rept. 116-120 Directs DOD to
provide a comprehensive review
and assessment of the transitional
compensation program (p. 153).
Sec. 601 is a similar provision to
House Sec. 621.
Sec. 621 adopts this provision.
No similar provision.
Sec. 581 would require a briefing
to the House and Senate armed
Not adopted. However, the
conference report directs a DOD
95 DOD, Fiscal Year 2017 Annual Report on Sexual Assault in the Military, Appendix G: Domestic Abuse Related
Sexual Assault, May 2018.
96 P.L. 114-328 §574.
97 DOD, 2017 Demographics: Profile of the Military Community, 2017, p. 123,
https://download.militaryonesource.mil/12038/MOS/Reports/2017-demographics-report.pdf.
98 DOD, Report on Child Abuse and Neglect and Domestic Abuse in the Military for Fiscal Year 2018, April 2019, p. 7,
https://download.militaryonesource.mil/12038/MOS/Reports/fap-fy18-dod-report.pdf.
99 Ibid., p. 8.
100 Ibid., p. 9. A rate per thousand of intimate partner abuse incidents and/or victims cannot be established, as DOD
does not have data on the number of unmarried individuals involved in intimate partner relationships.
Congressional Research Service
27
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
House-Passed H.R. 2500
Senate-Passed S. 1790
Enacted Bill P.L. 116-92
services committees on ways the
Family Advocacy Program (FAP)
could be used/enhanced to prevent
and respond to domestic violence.
briefing to House and Senate armed
services committees within 180 days of
enactment.
Sec. 543 would require notification
of civilian authorities, and receiving
units (in the case of a personnel
transfer) when a member with a
military protective order (MPO)
against them is transferred to that
unit, and would require annual
reports to Congress on the number
of MPOs reported to civilian
authorities.
No similar provision.
Sec. 543 adopts House Sec. 543 with
an amendment that requires annual
reports to begin on March 1, 2021
through 2025.
Sec. 544 would require Secretary
of Defense to enact policies and
procedures to register civilian
protection orders on military bases.
Sec. 556 is an identical provision
to House section 544.
Sec. 550A adopts this provision.
Sec. 550F would require reports
to the National Instant Criminal
Background Check System (NICS)
for servicemembers who are
prohibited from purchasing firearms
and would require a study on the
feasibility of creating a database for
tracking domestic violence MPOs
and reporting to NICS.
No similar provision.
Sec. 550E adopts House Sec. 550F
with an amendment that expands the
matters to be explored in the
feasibility report; however does not
amend the NICS Improvement
Amendments Act of 2007 to require
DOD reports.
Discussion: A special victim counsel (SVC) is a judge advocate or civilian attorney who satisfies
special training requirements and provides legal assistance to victims of sexual assault throughout
the military justice process.101 Section 542 of the House bill and Section 541 of the Senate bill
would expand SVC staffing and authorize SVC services for military-connected victims of
domestic violence. The Administration has opposed this measure, stating that it would “decrease
access for sexual assault victims to Special Victims’ Counsels (SVCs)/Victims’ Legal Counsels
(VLCs), exacerbate already high caseloads for SVC/VLCs, and impose an unfunded mandate.”102
The enacted bill adopts the Senate provision with an amendment that would require counsel to
receive specialized domestic violence legal training, serve for a minimum of two years, and be
supported by sufficiently trained paralegals. DOD is required to provide a report on planned
implementation no later than 120 days after enactment.
Transitional compensation is a monetary benefit authorized under 10 U.S.C. §1059 for dependent
family members of servicemembers or of former servicemembers who are separated from the
military due to dependent-abuse offenses. One of the motivating arguments for establishing the
transitional compensation benefit is that it provides a measure of financial security to spouses or
former spouses. Eligible recipients receive monthly payments for no less than 12 months and no
101 10 U.S.C. §§1044, 1044e, and 1565b.
102 Executive Office of the President (EOP), Office of Management and Budget (OMB), Statement of Administrative
Policy, H.R. 2500, National Defense Authorization Act for Fiscal Year 2020, July 9, 2019, p. 9,
https://www.whitehouse.gov/wp-content/uploads/2019/07/SAP_HR-2500.pdf.
Congressional Research Service
28
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
more than 36 months at the same rate as dependency and indemnity compensation (DIC). 103
While in receipt of transitional compensation, dependents are also entitled to military commissary
and exchange benefits, and may receive dental and medical care, including mental health
services, through military facilities as TRICARE beneficiaries.104 Section 621 of the House bill
and Section 601 of the Senate bill are similar provisions that would expand the authority of the
Secretary concerned to grant exceptional transitional compensation in an expedited fashion. This
would allow dependents who are victims of abuse to start receiving compensation while the
offending servicemember is still on active duty and as early as the date that an administrative
separation is initiated by a commander. In addition, the House Report directs DOD to provide a
comprehensive review and assessment of the transitional compensation program.105 Section 621
of the enacted bill adopts this provision.
When a servicemember has allegedly committed an act of domestic violence, a commander can
issue a military protective order (MPO)106 to a servicemember that prohibits contact between the
alleged offender and the domestic violence victim.107 A servicemember must obey an MPO at all
times, whether inside or outside a military installation, or may be subject to court martial or other
punitive measures. By law, a military installation commander is required to notify civilian
authorities when an MPO is issued, changed, and terminated with respect to individuals who live
outside of the installation.108 House Section 543 would amend 10 U.S.C. §1567a to require
notification of civilian authorities no later than seven days after issuing an order, regardless of
whether the member resides on the installation. The provision would also require commanders to
notify the receiving command in the case of a transfer of an individual who has been issued an
MPO. DOD would also be required to track and report the number of orders reported to civilian
authorities annually. Section 543 of the enacted bill adopts the House provision and requires
annual reports through 2025.
While MPOs are typically not enforceable by civilian authorities, a civil protection order (CPO),
by law, has full force and effect on military installations.109 House Section 544 and Senate Section
103 Dependency and indemnity compensation (DIC) rates are specified in 38 U.S.C. 1311(a). For more information on
DIC, see CRS Report R40757, Veterans’ Benefits: Dependency and Indemnity Compensation (DIC) for Survivors, by
Scott D. Szymendera.
104 Medical and dental care furnished to a dependent of a former member of the uniformed services in facilities of the
uniformed services will be limited to the health care prescribed by 10 U.S.C. §1077, and subject to the availability of
space, facilities, and the capabilities of the medical and dental staff.
105 See p. 153 of H.Rept. 116-120.
106 10 U.S.C. §1567 provides military commanders authority to issue a military protective order (MPO). An MPO is a
written lawful order that remain in effect until terminated by a military commander, or by a replacement order. For
more on MPOs, see 32 C.F.R. §635.19(a);DOD Instruction 6400.06, Domestic Abuse Involving DoD Military and
Certain Affiliated Personnel, updated May 26, 2017, https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/
dodi/640006p.pdf; and DD Form 2873, Military Protective Order, https://www.esd.whs.mil/Portals/54/Documents/DD/
forms/dd/dd2873.pdf.
107 10 U.S.C. §1567 provides military commanders authority to issue a military protective order (MPO). An MPO is a
written lawful order that remain in effect until terminated by a military commander, or by a replacement order. For
more on MPOs, see 32 C.F.R. §635.19(a); DOD Instruction 6400.06, Domestic Abuse Involving DoD Military and
Certain Affiliated Personnel, updated May 26, 2017, https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/
dodi/640006p.pdf; and DD Form 2873, Military Protective Order, https://www.esd.whs.mil/Portals/54/Documents/DD/
forms/dd/dd2873.pdf. 32 C.F.R. §635.19(c). Before an MPO is issued, a commander can immediately issue as a first
step a No Contact Order, which is analogous to a temporary restraining order (see Army Regulation 608-18, Family
Advocacy Program, September 13, 2011).
108 10 U.S.C. §1567a.
109 10 U.S.C. §1561a.
Congressional Research Service
29
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
556 would require DOD to establish policies and procedures for registering CPOs with military
installation authorities. Section 550A of the enacted bill adopts this provision.
House Section 550F would codify an existing DOD policy to report to the National Instant
Criminal Background Check System (NICS) servicemembers who are prohibited from purchasing
firearms due to a domestic violence conviction in a military court.110 This section would also
require DOD to study the feasibility of creating a database of military protective orders issued in
response to domestic violence and the feasibility for reporting such MPOs to NICS. Section 550E
of the enacted bill adopts the House provision, but removes the section that would amend the
National Instant Criminal Background Check System Improvement Amendments Act of 2007 (34
U.S.C. §40911(b)) with respect to DOD reporting. It also expands the matters to be explored in
the feasibility report.
References: For information on Special Victims’ Counsel and Military Protective Orders, see
CRS Report R44944, Military Sexual Assault: A Framework for Congressional Oversight, by
Kristy N. Kamarck and Barbara Salazar Torreon.111
CRS Point of Contact: Kristy N. Kamarck and Alan Ott.
*Medal of Honor
Background: The Medal of Honor (MoH) is the highest award for valor "above and beyond the
call of duty" that may be bestowed on a U.S. servicemember.112 In recent years, the MoH review
process has been criticized by some as being lengthy and bureaucratic, which may have led to
some records being lost and conclusions drawn based on competing eyewitness and forensic
evidence.113 Reluctance on the part of reviewing officials to award the MoH retroactively or to
upgrade other awards is generally based on concern for maintaining the integrity of the award and
the awards process. This reluctance has led many observers to believe that the system of awarding
the MoH is overly restrictive and that certain individuals are denied earned medals. As a result,
DOD periodically reviews inquiries by Members of Congress and reevaluates its historical
records. Systematic reviews began in the 1990s for World War II records when African-American
units remained segregated and whose valorous unit and individuals’ actions, along with others,
may have been overlooked. That effort resulted in more than 100 soldiers receiving the MoH, the
majority of which were posthumously awarded. On January 6, 2016, DOD announced the results
of its year-long review of military awards and decorations.114 This included review of the
110 DOD Instruction 5505.11, Fingerprint Card and Final Disposition Report Submission Requirements, updated
March 29, 2017, https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/550511p.pdf. 18 U.S.C. §922
prohibits firearm or ammunition transfer to or receipt by a person convicted of a misdemeanor crime of domestic
violence or subject to a domestic violence protection order. A misdemeanor crime of domestic violence as an offense
that is a misdemeanor under federal, state, or tribal law with a domestic violence element (18 U.S.C. §921). Punishment
by special court-martial in the military is considered a misdemeanor because the court cannot impose confinement that
exceeds one year (10 U.S.C. §819).
111 For background on military reporting to federal databases, see Inspector General of the U.S. Department of Defense,
Report of Investigation into the United States Air Force’s Failure to Submit Devin Kelley’s Criminal History
Information to the Federal Bureau of Investigation, December 6, 2018, https://media.defense.gov/2018/Dec/07/
2002070069/-1/-1/1/DODIG-2019-030_REDACTED.PDF.
112 10 U.S.C. §§7271, 8291, and 9271.
113 See “Medal of Honor (MoH) Process,” in CRS Report R43647, FY2015 National Defense Authorization Act:
Selected Military Personnel Issues, coordinated by Barbara Salazar Torreon.
114 DOD, “Defense Department Announces Results of Military Decorations and Awards Review,” press release,
January 7, 2016, https://www.defense.gov/Newsroom/Releases/Release/Article/641775/defense-department-
Congressional Research Service
30
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
timeliness of the MoH process and review by all the military departments of the Distinguished
Service Cross, Navy Cross, Air Force Cross, and Silver Star Medal recommendations since
September 11, 2001, for actions in Iraq and Afghanistan. Subsequently, the MoH was awarded to
the first living recipient from the Iraq War, Army Staff Sgt. David Bellavia, on June 25, 2019.115
House-Passed H.R. 2500
Senate-Passed S. 1790
Enacted Bill P.L. 116-92
Sec. 583 would require a review of
World War I valor medals.
No similar provision.
Sec. 584 adopts House Sec. 583.
Sec. 584 would authorize the
President of the United States to
award the Medal of Honor (MoH)
to Alwyn Cashe for acts of valor
during Operation Iraqi Freedom.
No similar provision
Not adopted.
Sec. 1099L would authorize the
last surviving MoH recipient of
Second World War, upon their
death, to lay in state in the U.S.
Capitol rotunda.
No similar provision.
Not adopted.
No similar provision.
Sec. 585 would authorize the
President of the United States to
award the MoH to John J. Duffy for
acts of valor in Vietnam.
Sec. 583 adopts Senate Sec. 585.
Discussion: Section 583 of the House-passed bill would require DOD to review the service
records of certain servicemembers who fought in World War I (WWI) to determine whether they
should be posthumously awarded the MoH. Specifically, the provision would require record
reviews of certain African-American, Asian-American, Hispanic-American, Jewish-American,
and Native-American veterans who were recommended for the MoH or who were the recipients
of the Distinguished Service Cross, Navy Cross, or French Croix de Guerre with Palm. Four
soldiers, one Hispanic-American (Private David Barkley Cantu) and three Jewish-American
veterans (First Sergeant Sydney Gumpertz, First Sergeant Benjamin Kaufman, and Sergeant
William Sawelson), were awarded Medals of Honor at the conclusion of WWI.
In 1991, President George H.W. Bush awarded the MoH posthumously to Corporal Freddie
Stowers, who became the first African-American recipient from WWI after the Army’s review of
his military records. Later, the FY2015 NDAA (P.L. 113-291) authorized posthumous award of
the MoH to Private Henry Johnson, an African-American veteran, and Sgt. William Shemin, a
Jewish-American veteran, for valor during WWI.116 Proponents of the Pentagon review in Section
583 point to similar reviews for minority groups who served in other conflicts from World War II
to the present. Some were later awarded the MoH, the majority of which were posthumously
awarded. According to the Congressional Budget Office (CBO), “a remote possibility exists” that
one of the veterans honored under Section 583 could have a surviving widow who could
potentially receive expanded health benefits or increased survivor benefits.117 Section 584 of the
enacted bill adopts this section. If a Secretary concerned determines, based upon the review under
announces-results-of-military-decorations-and-awards-review/.
115 Meghan Myers, “President Donald Trump bestows Medal of Honor on David Bellavia, the first living Iraq War
recipient,” Army Times, June 25, 2019, at https://www.armytimes.com/news/your-army/2019/06/25/president-donaldtrump-bestows-medal-of-honor-on-david-bellavia-the-first-living-iraq-war-recipient/.
116 P.L. 113-291 §572.
117 CBO, Cost Estimates for H.R. 2500, National Defense Authorization Act for Fiscal Year 2020, June 19, 2019, p. 14,
https://www.cbo.gov/system/files/2019-06/H.R. 2500.pdf.
Congressional Research Service
31
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
that the award of the MoH to a certain World War I veteran is warranted, such Secretary shall
submit to the President a recommendation that the President award the MoH to that veteran. This
review shall terminate not later than five years after the date of the enactment of this Act.
Section 584 of the House-passed bill would have waived the time limitation and authorize the
posthumous award of the MoH to Army Sergeant First Class (SFC) Alwyn Cashe for acts of valor
in Samarra, Iraq, during Operation Iraqi Freedom. SFC Cashe led recovery efforts and refused
medical treatment until his men were evacuated to safety after an improvised explosive device
struck their vehicle and caught fire. Cashe’s actions saved the lives of six of his soldiers. He later
succumbed to his wounds. This provision was not adopted in the enacted bill.
Section 1099L of the House-passed bill would have allowed the nation to honor the last surviving
MoH recipient of WWII by permitting the individual to lie in honor in the Capitol rotunda upon
death. This provision was not adopted in the enacted bill.
Section 585 of the Senate-passed bill would have waived the time limitation in section 7274 of
title 10, United States Code, and authorize the award of the MoH to Army Major John J. Duffy
for acts of valor in Vietnam on April 14 and 15, 1972, for which he was previously awarded the
Distinguished Service Cross. Section 583 in the enacted bill adopts this section waiving the time
limitation so that the President may award the Medal of Honor under section 7271 of title 10 U.S.
Code to John J. Duffy for the acts of valor in Vietnam.
References: Previously discussed in the “Medal of Honor” section of CRS Report R44577,
FY2017 National Defense Authorization Act: Selected Military Personnel Issues, by Kristy N.
Kamarck et al. and similar reports from earlier years; CRS Report 95-519, Medal of Honor:
History and Issues, by Barbara Salazar Torreon; and the Congressional Budget Office, Cost
Estimates for H.R. 2500, National Defense Authorization Act for Fiscal Year 2020, June 19, 2019.
CRS Point of Contact: Barbara Salazar Torreon.
Military Family Issues
Background: Approximately 2.1 million members of the Armed Forces across the active and
reserve components have an additional 2.7 million “dependent” family members (spouses and/or
children).118 Slightly over 40% of servicemembers have children and approximately 50% are
married.119 The military provides a number of quality of life programs and services for military
families as part of a servicemember’s total compensation and benefit package. These include
family life, career, and financial counseling, childcare services and support, and other MWR
activities. The general motivation for providing these benefits is to improve the recruitment,
retention, and readiness of military servicemembers.
House-Passed H.R. 2500
Senate-Passed S. 1790
Enacted Bill P.L. 116-92
Spouse Employment and
Education
Sec. 628 would increase the
maximum reimbursement to
spouses for relicensing costs
associated with a relocation.
Spouse Employment and
Education
Sec. 576 would extend the
authority to reimburse some
relicensing costs associated with a
military relocation.
Spouse Employment and Education
Sec. 577 adopts House Sec. 628.
118 Department of Defense, Demographics: Profile of the Military Community, 2016, pp. 120, 123, & 145,
http://download.militaryonesource.mil/12038/MOS/Reports/2016-Demographics-Report.pdf.
119 Ibid. These figures have not changed substantially over the past two decades.
Congressional Research Service
32
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
House-Passed H.R. 2500
Senate-Passed S. 1790
Enacted Bill P.L. 116-92
Sec. 624 would seek to improve
portability of licenses for military
spouses by allowing DOD to
provide support for development of
interstate compacts.
Sec. 577 would require the
Secretary of Defense to enter into
a cooperative agreement with the
Council of State Governments to
assist with the funding and
development of interstate compacts
on licensed occupations.
Sec. 575 adopts House Sec. 624 and
includes the Senate requirements for
the Secretary of Defense with respect
to cooperative agreements with the
Council of State Governments.
Sec. 623 would allow continued
eligibility for the My Career
Advancement Account Scholarship
Program (MyCAA) program
following the promotion of the
sponsor.
No similar provision.
Sec. 576 adopts House Sec. 623 and
includes report language encouraging
DOD to improve the data collection
for military spouse education and
employment programs, to establish a
better understanding of utilization and
completion of the programs.
Sec. 580B would expand the types
of associate degrees and
certifications covered by MyCAA.
No similar provision.
Sec. 580F adopts House Sec. 580B
and allows eligible spouses to receive
financial assistance for the pursuit of a
license, certification, or associate's
degree in any career field or
occupation.
Sec. 580C would expand MyCAA
eligibility to Coast Guard spouses
and spouses of enlisted
servicemembers of all grades.
No similar provision.
Sec. 580G adopts House Sec. 580C
and requires the Coast Guard to
reimburse DOD.
Parents and Children
Sec. 625 would amend 10 U.S.C.
§1798 to authorize fee assistance
for civilian childcare providers for
survivors of members of the Armed
Forces who die on active duty.
Parents and Children
No similar provision.
Parents and Children
Sec. 624 adopts House Sec. 625 with
an amendment to authorize the benefit
for members of the Armed Forces
who die in combat-related incidents in
the line of duty.
Sec. 629 would require an
assessment of childcare costs,
capacity, and website accessibility,
enhance portability of provider
background investigations, and
expand direct hiring authority for
childcare providers.
Sec. 579 would clarify direct hiring Sec. 580 adopts House Sec. 629 with
authority for DOD child
clarifying language with respect to the
development centers.
direct hire authority for DOD
childcare development centers.
Discussion: Spouse Employment and Education. Section 1784 of Title 10, U.S. Code, requires
the President to order such measures as necessary to increase employment opportunities for
military spouses. Active duty servicemembers conduct frequent moves to military installations
across the globe. For working spouses, this sometimes requires them to establish employment in a
new state that has different occupational licensing requirements than their previous state. The
FY2018 NDAA (P.L. 115-91 §556) authorized the reimbursement of certain relicensing costs up
to $500 for military spouses following a permanent change of station from one state to another
with an end date of December 31, 2022.120 Section 628 of the House bill would have raised the
maximum reimbursement to $1,000 and would require the Secretary of Defense to perform an
analysis of whether that amount is sufficient to cover average costs. Section 576 of the Senate bill
would not have raised the maximum reimbursement amount; however, it would extend the
120 37 U.S.C. §476.
Congressional Research Service
33
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
authority to December 31, 2024. Section 577 of the enacted bill adopts the House provision and
extends the authorization for this benefit to December 31, 2024.
Both bills also had similar provisions (House Section 524 and Senate Section 577) that sought to
improve interstate license portability through DOD funding support for the development of
interstate compacts. Both bills would have capped funding support for each compact at $1
million, while the Senate bill would have capped the total program funding at $4 million. Section
575 of the enacted bill adopts the House provision with an amendment that would require the
Secretary of Defense to enter into a cooperative agreement with the Council of State
Governments to assist with the funding and development.121
DOD’s My Career Advancement Account Scholarship Program (MyCAA), launched in 2007,
currently provides eligible military spouses up to $4,000 in financial assistance to pursue a
license, certification, or associate’s degree in a portable career field.122 Eligible spouses are those
married to military servicemembers on active duty in pay grades E-1 to E-5, W-1 to W-2 and O-1
to O-2. During the pilot phase of the program, the benefit was offered to all spouses and funds
were also available for a broader range of degrees and certifications, including bachelor’s and
advanced degrees. However, due to concerns about rising costs and enrollment requests, DOD
has since reduced the maximum benefit amount (from $6,000 to $4000), limited eligibility to
spouses of junior servicemembers, and restricted the types of degrees and career fields that were
eligible for funding.
Section 623 of the House bill would have allowed continued eligibility for spouses when the
member is promoted above those pay grades after the spouse has begun a course of instruction.
Section 580B of the House bill would have expanded the qualifying degrees and certifications to
include non-portable career fields and occupations. Finally, Section 580C would have expanded
the eligible population to all enlisted spouses and would also have provided eligibility for Coast
Guard spouses to participate in the DOD program.123 The enacted bill adopts all three of these
House provisions, expanding eligibility for more military spouses and a broader range of
certifications.
Parents and Children. DOD operates the largest employer-sponsored childcare program in the
United States, serving approximately 200,000 children of uniformed servicemembers and DOD
civilians, and employing over 23,000 childcare workers.124 DOD offers subsidized programs on
and off military installations for children from birth through 12 years, including care on a fullday, part-day, short-term, or intermittent basis. Title 10 U.S.C. §1798 authorizes fee assistance for
civilian childcare services. Section 625 of the House bill would have specifically authorized fee
assistance for survivors of members of the Armed Forces who die “in line of duty while on active
duty, active duty for training, or inactive duty for training.’’ DOD policy currently authorizes
childcare for “surviving spouses of military members who died from a combat related
121 The Council of State Governments was formed in 1933 as a forum for states to exchange policy ideas and practice.
See https://www.csg.org/.
122 See for on the My Career Advancement Account Scholarship Program (MyCAA), see
https://mycaa.militaryonesource.mil/mycaa. DOD relies on the Department of Labor’s database of in-demand
occupations to identify portable careers eligible for MyCAA tuition assistance.
123 U.S. Government Accountability Office (GAO), Military Spouse Employment Programs; DOD can Improve
Guidance and Performance Monitoring, GAO-13-60, December 2012, pp. 7-8,
https://www.gao.gov/assets/660/650867.pdf.
124 CRS Report R45288, Military Child Development Program: Background and Issues, by Kristy N. Kamarck.
Congressional Research Service
34
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
incident.”125 Section 624 of the enacted bill amends the House provision to only authorize fee
assistance for survivors of those who die “in combat-related incidents in the line of duty.”
Section 629 of the House bill and Section 578 of the Senate bill would have expanded and
attempted to clarify hiring authorities for military childcare workers. The House provision would
also have required an assessment and report from DOD on the adequacy of the maximum fee
assistance subsidy, the accessibility of childcare and spouse employment websites, and the
capacity needs of installation-based childcare facilities. Finally, the same section sought to
improve portability of background checks for childcare workers. It is common for military
spouses to be employed as childcare workers, and frequent moves may require them to reapply
and resubmit background check material at a new facility. Section 580 of the enacted bill adopts
the House provision and includes language clarifying the direct hire authority for DOD childcare
development centers to include family childcare coordinator services and school age childcare
coordinator services.
References: CRS Report R45288, Military Child Development Program: Background and Issues,
by Kristy N. Kamarck.
CRS Points of Contact: Kristy N. Kamarck.
Military Medical Malpractice
Background: DOD employs physicians and other medical personnel to deliver health care
services to servicemembers in military treatment facilities (MTFs). Occasionally, however,
patient safety events do occur and providers commit medical malpractice by rendering health care
in a negligent fashion, resulting in the servicemember’s injury or death.126 In the civilian health
care market, a victim of medical malpractice may potentially obtain recourse by pursuing
litigation against the negligent provider and/or his employer. A servicemember injured as a result
of malpractice committed by an MTF health care provider, however, may encounter significant
obstacles if attempting to sue the United States.
In general, the Federal Tort Claims Act (FTCA) permits private parties to pursue certain tort
claims (e.g., medical malpractice) against the United States.127 However, in 1950, the U.S.
Supreme Court in the case of Feres v. United States recognized an implicit exception to the
FTCA–that the federal government is immunized from liability “for injuries to servicemen where
the injuries arise out of or are in the course of activity incident to service.”128 This exception to
tort liability is known as the Feres doctrine. Many lower federal courts have concluded that Feres
generally prohibits military servicemembers from asserting malpractice claims against the United
States based on the negligent actions of health care providers employed by the military.
Over the past decade, Congress has held multiple hearings to assess whether to modify the Feres
doctrine to allow servicemembers to pursue medical malpractice litigation against the United
125 DOD Instruction 6060.02, Child Development Programs (CDPs), August 5, 2014,
https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/606002p.pdf.
126 A patient safety event is “an event, incident, or condition that could have resulted or did result in harm to a patient.”
The Joint Commission, Comprehensive Accreditation Manual for Health, updated January 2, 2016, p. SE-4,
https://www.jointcommission.org/assets/1/6/CAMH_24_SE_all_CURRENT.pdf.
127 28 U.S.C. §§1346(b)(1), 2401(b), and 2671-2680. For more on the Federal Tort Claims Act, see CRS Report
R45732, The Federal Tort Claims Act (FTCA): A Legal Overview, by Kevin M. Lewis.
128 Feres v. United States, 340 U.S. 146 (1950). For more information, see CRS In Focus IF11102, Military Medical
Malpractice and the Feres Doctrine, by Bryce H. P. Mendez and Kevin M. Lewis.
Congressional Research Service
35
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
States.129 Congress has also considered several proposals to amend the FTCA to allow these tort
claims.130
House-Passed H.R. 2500
Senate-Passed S. 1790
Enacted Bill P.L. 116-92
Sec. 729 would amend the Federal
Tort Claims Act (28 U.S.C. §2681)
to allow certain claims against the
United States for negligent,
wrongful, or omitted health care
services at a military treatment
facility (MTF) that resulted in
personal injury or death of a
servicemember.
No similar provision.
Sec. 731 adopts House Sec. 729
with an amendment that establishes
a statutory authority for the
Secretary of Defense to consider,
settle, and pay claims against the
United States for negligent,
wrongful, or omitted health care
services at an MTF that resulted in
personal injury or death of a
servicemember. The provision does
not amend the Federal Tort Claims
Act, nor allow servicemembers to
pursue medical malpractice
litigation against the United States.
Sec. 744 would require the
Secretary of Defense to report to
Congress the number of medical
providers who “lost medical
malpractice insurance coverage”
prior to their employment with
DOD.
No similar provision.
Sec. 747 adopts House Sec. 744
with an amendment that directs
GAO to: (1) assess the
effectiveness of DOD’s quality
assurance program and monitoring
of the National Practitioner Data
Bank, and (2) analyze clinical and
compensation outcomes of patients
who may be eligible or ineligible to
file claims against the United States
for “negligence or malpractice.”
The provision also requires GAO
to provide its findings in a report to
the House and Senate armed
services committees by January 1,
2021.
Discussion: The enacted bill does not abrogate the Feres doctrine, nor does it amend the FTCA to
provide servicemembers the ability to litigate certain medical malpractice claims against the
United States. Instead, enacted provisions focus on establishing an administrative claims process
to compensate injured servicemembers and on conducting oversight of the Defense Department’s
clinical quality assurance program.
Section 731 of the enacted bill authorizes the Secretary of Defense to “allow, settle, and pay a
claim against the United States for personal injury or death incident to the service of a member of
the uniformed services that was caused by the medical malpractice of the Department of Defense
health care provider.”131 Under the provision, the Defense Secretary may establish an
129 See U.S. Congress, House Committee on the Judiciary, Subcommittee on Commercial and Administrative Law,
Carmelo Rodriguez Military Medical Accountability Act of 2009, hearing on H.R. 1478, 111th Cong., 1st sess., March
24, 2009 (Washington: GPO, 2009); and U.S. Congress, House Committee on Armed Services, Subcommittee on
Military Personnel, Feres Doctrine - A Policy in Need of Reform?, 116th Cong., 1st sess., April 30, 2019.
130 See the Carmelo Rodriguez Military Medical Accountability Act as introduced in the 110th and 111th Congress (H.R.
6093, H.R. 1478, S. 1347) or the SFC Richard Stayskal Military Medical Accountability Act of 2019 as introduced in
the 116th Congress (H.R. 2422 and S. 2451).
131 P.L. 116-92 §731 is codified in 10 U.S.C. §2733a.
Congressional Research Service
36
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
administrative claims process for servicemembers who have been injured or died as a result of
medical malpractice committed by an MTF provider.
Only an injured servicemember, or an authorized representative of a deceased or incapacitated
servicemember, may file a claim within two years after a malpractice incident (three years if filed
in calendar year 2020). For a substantiated claim, DOD may issue financial compensation, up to
$100,000. If referred by the Defense Secretary, the Secretary of the Treasury may issue additional
compensation in excess of $100,000. Within 180 days after enactment, the Defense Secretary is
required to brief the House and Senate armed services committees on the status of developing and
implementing the regulations for this authority.
Typically, DOD conducts prospective, ongoing, and retrospective monitoring and assessment of
its health care services through its Medical Quality Assurance (MQA) programs and clinical
quality management activities. The Defense Health Agency and the Service medical departments
administer these programs and activities, which are intended to “ensure quality in healthcare
throughout the MHS.”132 Section 747 of the enacted bill directs GAO to assess the effectiveness
of DOD’s quality assurance program, including the use and monitoring of the National
Practitioner Data Bank when hiring, retaining, and documenting adverse actions taken against
DOD health care providers.133 GAO is to report their findings to the House and Senate armed
services committees no later than January 1, 2021.
References: CRS In Focus IF11102, Military Medical Malpractice and the Feres Doctrine, by
Bryce H. P. Mendez and Kevin M. Lewis; and CRS Legal Sidebar LSB10305, The Feres
Doctrine: Congress, the Courts, and Military Servicemember Lawsuits Against the United States,
by Kevin M. Lewis.
CRS Point of Contact: Bryce H.P. Mendez.
*Military Pay Raise
Background: Congress has a long-standing congressional interest in military pay raises, as they
relate to the overall cost of military personnel and to recruitment and retention of high-quality
personnel to serve in the all-volunteer military. Section 1009 of Title 37, U.S. Code, codifies the
formula for an automatic annual increase in basic pay that is indexed to the annual increase in the
Employment Cost Index (ECI). The statutory formula stipulates that the increase in basic pay for
2020 will be 3.1% unless either (1) Congress passes a law to provide otherwise; or (2) the
President specifies an alternative pay adjustment under subsection (e) of 37 U.S.C. §1009.
Increases in basic pay are typically effective at the start of the calendar year, rather than the fiscal
year.
The FY2020 President’s Budget requested a 3.1% military pay raise, equal to the statutory
formula.
132 DOD Instruction 3025.13, Medical Quality Assurance (MQA) and Clinical Quality Management in the Military
Health System (MHS), updated October 2, 2013, p. 2,
https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/602513p.pdf. For more on DOD’s quality
assurance programs and clinical quality management activities, see https://www.health.mil/Military-HealthTopics/Access-Cost-Quality-and-Safety/Quality-And-Safety-of-Healthcare/Clinical-Quality-Management.
133 The National Practitioner Data Bank (NPDB) is a web-based “repository of reports containing information on
medical malpractice payments and certain adverse actions related to health care practitioners, providers, and supplies.”
For more on the NPDB, see https://www.npdb.hrsa.gov/topNavigation/aboutUs.jsp.
Congressional Research Service
37
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
House-Passed H.R. 2500
Senate-Passed S. 1790
Enacted Bill P.L. 116-92
Sec. 606 specifies that basic pay
will increase by 3.1% on January 1,
2020.
No similar provision (leaving in
place the automatic adjustment).
Sec. 609 adopts House Sec. 606.
Sec. 607 specifies that the
automatic increase in basic pay
under the statutory formula of 37
U.S.C. §1009 shall take effect,
"notwithstanding any determination
made by the President under
subsection (e) of such section with
respect to an alternative pay
adjustment ... "
No similar provision (leaving in
place the automatic adjustment).
Not adopted.
Discussion: The House bill would have included two provisions that would address the military
pay raise. Section 606 would have directed a 3.1% increase in basic pay. Section 607 would have
directed that the statutory formula of 37 U.S.C. §1009 go into effect, also resulting in a 3.1%
increase in basic pay, even if the President were to specify an alternate adjustment. The Senate
bill did not contain a provision specifying an increase in basic pay; it would have left the 3.1%
automatic adjustment provided by 37 U.S.C. §1009 in place. Section 609 of P.L. 116-92 specified
a 3.1% increase in basic pay.
References: For an explanation of the pay raise process and historical increases, see CRS In
Focus IF10260, Defense Primer: Military Pay Raise, by Lawrence Kapp. Previously discussed in
CRS Report R45343, FY2019 National Defense Authorization Act: Selected Military Personnel
Issues, by Bryce H. P. Mendez et al. and similar reports from earlier years.
CRS Point of Contact: Lawrence Kapp.
Military Retirement and Survivor Benefits
Background: The military retirement system is a funded, noncontributory system that provides a
monthly annuity after 20 qualifying years of service, or upon qualifying for a disability
retirement. As of January 1, 2018, those joining the military and those who opted into the
Blended Retirement System also receive a defined contribution from the federal government into
the Thrift Savings Plan (TSP).134 Military retirees and their dependents are also eligible for other
DOD benefits, including commissary and exchange shopping privileges, medical benefits, and
space-available travel on military aircraft. Surviving spouses and other eligible beneficiaries may
be eligible to receive a portion of the servicemember’s retired pay after the member’s death in
retirement (if enrolled) or while on active duty (automatic eligibility). This benefit is called the
Survivor Benefit Plan (SBP). In addition, military retirees and their dependents may be eligible
for benefits from the VA, including Dependency and Indemnity Compensation (DIC), a monthly
payment to beneficiaries whose spouse’s death was related to a service-connected injury or
condition.
134 For more on the Thrift Savings Plan, see CRS Report RL30387, Federal Employees’ Retirement System: The Role
of the Thrift Savings Plan, by Katelin P. Isaacs.
Congressional Research Service
38
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
House-Passed H.R. 2500
Senate-Passed S. 1790
Enacted Bill P.L. 116-92
No similar provision.
Sec. 631 would modify how
Sec. 655 does not adopt the change,
payments to the military retirement but instead requires DOD to report
fund are calculated.
how the Senate provision would be
implemented.
Sec. 630A would repeal the
Survivor Benefit Plan–Dependency
Indemnity Compensation offset.
No similar provision.
Sec. 622 adopts House Sec. 630A
with an amendment requiring a 3-year
phase-out of the offset.
Discussion: Military retirees are paid from the Military Retirement Fund (MRF). Under the
accrual accounting system, the DOD budget for each fiscal year includes a contribution to the
MRF as a percentage of basic pay in the amount needed to cover future retirement costs.135 This
percentage–called the normal cost percentage (NCP)–is determined by an independent,
presidentially appointed, DOD Retirement Board of Actuaries. Estimated future retirement costs
are modeled based on the past rates at which active duty military personnel stayed in the service
until retirement and on assumptions regarding the overall U.S. economy, including interest rates,
inflation rates, and military pay levels.
Currently, the DOD Actuary calculates separate NCPs for the active and reserve components;
however, by law the Actuary applies a single NCP across all of the military services.136 The
conference report (H.Rept. 115-404) accompanying FY2018 NDAA (P.L. 115-91) contained a
provision asking the GAO to evaluate whether the current method used to calculate DOD
retirement contributions reflects estimated service retirement costs, and what effects, if any may
result from calculating a separate NCP for each of the Services. The GAO’s December 2018
report found that, due to differing continuation rates among the Services, “the mandated single,
aggregate contribution rate does not reflect service specific retirement costs.”137 In particular, the
analysis found that the probability of reaching 20 years of service was more than 3 times higher
for the Air Force than the Marine Corps.
Section 631 of the Senate bill would have changed how military retirement contributions are
calculated, by requiring separate NCPs for each of the Services and components.138 Some analysts
who have studied the issue have argued that this change would improve resource allocation
efficiency, manpower decision-making, and accuracy in budget estimates at the service level.139
On the other hand, the GAO report notes that military service officials stated that their
“workforce decision making processes would not change.”140 Section 655 of the enacted bill does
not change the funding process, but requires the Secretary of Defense to deliver an
implementation plan to the House and Senate armed services committees by April 1, 2020.
DOD’s plan would assume that the change in funding process would commence in FY2025.
135 Other sources of fund income are U.S. Treasury payments, to make up for the unfunded liability when the
accounting system was changed in 1984, and interest income.
136 10 U.S.C. §1465.
137 GAO, Military Retirement: Service Contributions Do Not Reflect Service Specific Estimated, GAO-19-195R, 2018,
p. 6, https://www.gao.gov/assets/700/695789.pdf.
138 A similar provision was included in the Senate-passed version of the FY2018 NDAA (S. 1519 §1002); however the
provision was not adopted.
139 DOD’s Office of Cost Assessment and Program Evaluation (CAPE) led an assessment of the current retirement
contribution method as part of a larger effort. See also, Hosek, James, Beth J. Asch, and Michael Mattock, Toward
Efficient Military Retirement Accrual Charges, RAND Corporation, Santa Monica, CA, 2017.
140 Ibid., p. 9.
Congressional Research Service
39
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
Following the death of a servicemember, certain beneficiaries may be eligible for survivor
benefits from both DOD (SBP) and the VA (DIC). However, by law, surviving spouses who
receive both annuities must have their SBP payments reduced by the amount of DIC they
receive.141 This offset has sometimes been referred to as a widows' tax. The FY2018 NDAA (P.L.
115-91) permanently authorized a payment called the called the Special Survivor Indemnity
Allowance (SSIA) to such surviving spouses, to offset that reduction. The SSIA payment is
adjusted annually to account for cost-of-living increases. In the past, to avoid the offset, some
survivors have used the authority under 10 U.S.C. §1448(d)(2) to transfer the SBP benefit to
dependent children. Section 630A of the House bill would have repealed the offset as well as the
authority to provide the annuity to dependent children. Surviving spouses who had transferred the
benefit would not have been able to have their eligibility for the benefit restored. Retroactive
payments would not be authorized under this provision. SBP is also paid from the MRF. CBO
estimates that the repeal would increase federal spending by $5.7 billion over a period of 10
years.142 Approximately 65,000 surviving beneficiaries are eligible to receive both SBP and
DIC.143 Section 622 of the enacted bill phases out the requirement for an SBP-DIC offset over a
period of three years, and repeals the optional SBP annuity for dependent children.
References: CRS Report RL34751, Military Retirement: Background and Recent Developments,
by Kristy N. Kamarck. CRS Report R45325, Military Survivor Benefit Plan: Background and
Issues for Congress, by Kristy N. Kamarck and Barbara Salazar Torreon, CRS Insight IN11112,
The Kiddie Tax and Military Survivors’ Benefits, by Sean Lowry and Kristy N. Kamarck, CRS
Report R40757, Veterans’ Benefits: Dependency and Indemnity Compensation (DIC) for
Survivors, by Scott D. Szymendera. CRS Legal Sidebar LSB10316, FY2020 NDAA Analysis:
Elimination of Benefits Offset for Surviving Spouses and Related Legal Issues, by Mainon A.
Schwartz.
CRS Point of Contact: Kristy N. Kamarck.
*Military Sexual Assault and Sexual Harassment
Background: Over the past decade, the issues of sexual assault and sexual harassment in the
military have generated sustained congressional and media attention. Congress has required
additional study, data collection, and reporting to determine the scope of the issue, expand
protections and support services for victims, make substantial changes to the military justice
system, and take other actions to enhance sexual assault prevention and response. Sexual assault
and related sex offenses are crimes under the Uniform Code of Military Justice (UCMJ) and are
prosecutable by court-martial.144 DOD’s Sexual Assault Prevention and Response Office
(SAPRO) oversees sexual assault policy and produces an annual report on sexual assault
estimated prevalence rates and actual reporting. In FY2018, estimated sexual assault prevalence
rates across DOD’s active duty population were 6.2% for women and 0.7% for men.145 These
141 10 U.S.C. §1450(c).
142 CBO, Cost Estimate for H.R. 553, Military Surviving Spouses Equity Act, As introduced in the House of
Representatives on January 15, 2019, June 25, 2019, https://www.cbo.gov/system/files/2019-06/hr553.pdf.
143 DOD Office of the Actuary, Military Retirees and Survivors by Congressional District, December 31, 2018,
https://actuary.defense.gov/Portals/15/Documents/CONGDIST%202018.pdf?ver=2019-02-22-003419-477.
144 The Uniform Code of Military Justice (UCMJ; Chapter 47 of Title 10, U.S. Code) is the code of military criminal
laws applicable to all U.S. military members worldwide.
145 DOD SAPRO, Department of Defense Annual Report on Sexual Assault in the Military, Fiscal Year 2018, April 26,
2019, p. 3, https://www.sapr.mil/sites/default/files/DoD_Annual_Report_on_Sexual_Assault_in_the_Military.pdf.
Congressional Research Service
40
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
estimated prevalence rates were higher for active duty women than the FY2016 of 4.3% while the
rate for men remained close to the FY2016 rate of 0.6%.146
House-Passed H.R. 2500
Senate-Passed S. 1790
Enacted Bill P.L. 116-92
Reporting and Accountability
Sec. 548 would expand the scope
of study and extend the authority of
the Defense Advisory Committee
on Investigation, Prosecution, and
Defense of Sexual Assault in the
Armed Forces (DAC-IPAD) for 5
years.
Reporting and Accountability
Reporting and Accountability
Sec. 533 would extend the term of Sec. 535 adopts Senate Sec. 533,
the DAC-IPAD.
extending the term of DAC-IPAD for
5 years and requests an expanded
scope of review.
Sec. 540A would require DOD to
review racial, ethnic, and gender
disparities in the military justice
system.
Sec. 535 would require a DACIPAD review and assessment of the
relationship between race and
ethnicity and the investigation,
prosecution, and defense of sexual
assault.
Sec. 540I adopts House Sec. 540A.
Sec. 549 would require the
Secretary of Defense to establish a
“Defense Advisory Committee for
the Prevention of Sexual
Misconduct.”
Sec. 534 is a similar provision to
House Sec. 549.
Sec. 550B adopts House Sec. 549.
Sec. 592 would modify
requirements for gender relations
surveys.
No similar provision.
Sec. 591 adopts the House Sec. 592
with an amendment clarifying that the
term “assault” should include
“unwanted sexual contact.”
No similar provision.
Sec. 537 would require a GAO
report on implementation of
statutory requirements for sexual
assault for FY2004–FY2019.
Sec. 540M adopts Senate Sec. 537.
Prevention and Response
No similar provision.
Prevention and Response
Sec. 521 would require enhanced
policies and programs to prevent
sexual assault.
Prevention and Response
Sec. 540D adopts the Senate
provision.
Sec. 550O would ensure that
Catch a Serial Offender program
information is not subject to
Freedom of Information Act (FOIA)
requests.
Sec. 530 is a similar provision to
House Sec. 550O.
Sec. 530 adopts Senate Sec. 530.
Victim Services and Support
Sec. 542 would expand special
victim counsel (SVC) services for
victims of domestic violence,
establish minimum SVC staffing
levels, create a position for SVC
paralegals, and require a report to
Congress on SVC staffing.
Victim Services and Support
Sec. 541 would allow the service
secretaries to extend SVC services
to certain military and militaryaffiliated civilian personnel who are
alleged victims of domestic violence
or a sex-related offense.
Victim Services and Support
Sec. 548 adopts Senate Sec. 541and
includes an amendment requiring
specialized training in domestic
violence for specified legal counsel and
a report to Congress on resources
needed to carry out the program.
146 These estimates are based on biennial survey data for respondents who experienced behaviors consistent with the
definition of sexual assault in the previous year. For additional data, see DOD SAPRO annual reports at
https://www.sapr.mil/reports.
Congressional Research Service
41
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
House-Passed H.R. 2500
Senate-Passed S. 1790
Enacted Bill P.L. 116-92
Sec. 542 includes similar language
to Senate Sec. 542.
Sec. 542 would expand SVC
services to include assistance with
retaliation claims, codify duty to
determine victim preference for
prosecution venue, and require a
report on the expansion of
eligibility for SVC services.
Sec. 541 adopts Senate Sec. 542 with
an amendment that removes the
responsibility for the SVC to solicit
victim preference for prosecution
venue and removes reporting
requirements. (These requirements
are adopted in other provisions.)
No similar provision.
Sec. 536 would require a report
on the integration and
synchronization of activities of
Special Victim Investigation and
Prosecution personnel with
activities of military criminal
investigation organizations.
Not adopted; however the conference
report directs a briefing from DOD on
proposals to enhance the integration
and synchronization of Special Victim
Investigation and Prosecution
personnel with the activities of military
criminal investigative organizations in
investigations.
Sec. 550A would ensure an SVC
or Special Victim Prosecutor is
available within 48 hours of request
by victim and a report on
establishing new civilian positions to
support SVCs.
Sec. 543 would require availability Sec. 542 adopts Senate Sec. 543.
of an SVC within 72 hours of
request by victim, and a report on
establishing new civilian positions to
support SVCs.
Sec. 550C would require statespecific training for SVCs on civilian
criminal justice matters.
Sec. 544 would require stateSec. 550C adopts House Sec. 550C
specific training for SVCs on civilian and adds “protective orders” to the
criminal justice matters.
list of topics for training.
Sec. 535 would increase
investigative personnel and Victim
Witness Assistance Program
liaisons.
No similar provision.
Sec. 550 would require DOD to
develop a safe to report policy for
minor collateral misconduct
uncovered in the course of a sexual
assault investigation.
Sec. 527 would require a safe to
Not adopted.
report policy for minor collateral
misconduct associated uncovered in
the course of a sexual assault
investigation.
No similar provision.
Sec. 528 would require a report to Sec. 540H adopts Senate Sec. 528.
Congress on expansion of the Air
Force’s safe to report initiative.
Sec. 558 would require
consideration for transfer of a
military service academy student
who is the victim of a sex-related
offense to another service academy.
No similar provision.
Sec. 555 adopts House Sec. 558 and
includes an amendment expanding
options available to include enrolment
in a Senior Reserve Officer Training
Corps (SROTC) program.
Sec. 550P would preserve a
victim’s recourse to a restricted
report in the event a sexual assault
allegation was inadvertently
disclosed or reported.
Sec. 531 would require a report
on whether sexual assault reports
to certain third parties can remain
restricted.
Sec. 540K adopts Senate Sec. 531.
Military Justice and
Investigations
Sec. 540 would require training on
the withholding of sexual assault
disposition authorities.
Military Justice and
Investigations
Sec. 523 is a similar provision to
House Sec. 540
Military Justice and Investigations
Sec. 540A adopts House Sec. 540.
Congressional Research Service
Sec. 540 adopts House Sec. 535 and
establishes a goal of 6 months for
completion of sex assault
investigations.
42
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
House-Passed H.R. 2500
Senate-Passed S. 1790
Enacted Bill P.L. 116-92
Sec. 540C would require
enhanced training for commanders
on their roles in the military justice
process.
Sec. 525 would require enhanced Sec. 540B adopts Senate Sec. 525.
training for commanders on their
roles in the military justice process.
Sec. 539 would require timely
disposition of non-prosecutable
sex-related offenses.
No similar provision.
Sec. 540C adopts House Sec. 539
with an amendment.
No similar provision.
Sec. 529 would require a report
on recommended actions with
respect to adding a punitive
Uniform Code of Military Justice
(UCMJ) article for sexual
harassment.
Sec. 540E adopts Senate Sec. 529.
Sec. 538 would require a pilot
program on prosecution of sexrelated offenses committed against
cadets or midshipmen at the service
academies.
Sec. 522 would require the
disposition authority for certain
covered offenses to be withheld to
an officer in the grade of O-6 or
above; review of decision by a Staff
Judge Advocate and advice to next
senior commander, and training on
the exercise of this authority.
Not adopted.
Sec. 550B would require
commanders to notify victims on a
monthly basis on any further
actions taken with respect to a case
that is not referred to court-martial.
Sec. 526 is an identical provision
to House Sec. 550B.
Sec. 549 adopts this provision.
Sec. 534 would require
commanders to provide notification
to victims regarding key military
justice events and documentation of
victim preference for prosecution
venue (civilian or military court).
Sec. 524 is a similar provision to
House Sec. 534 and 547.
Sec. 538 adopts House Sec. 534 and
Sec. 547 requiring implementation no
later than 180 days after enactment.
Sec. 547 would require
documentation of consultation with
a victim on preference for
prosecution venue (civilian or
military court).
Discussion: The following discussion is split into four topic areas:
Reporting and Accountability;
Prevention and Response;
Victim Services and Support; and
Military Justice and Investigations.147
147 Included in this discussion are selected military justice provisions that have the most direct relationship with
military sexual assault. As such, some military justice provisions under Subtitle D in the House bill and Senate bills are
excluded from this report.
Congressional Research Service
43
FY2020 National Defense Authorization Act: Selected Military Personnel Issues
In March 2019, following a Senate Armed Services Committee hearing, the Acting Secretary of
Defense established the Sexual Assault Accountability and Investigation Task Force (SAAITF).148
This task force made several recommendations for legislative action, some of which are reflected
in sections of the House and Senate bills.
Reporting and Accountability. Several provisions in the House and Senate bills would have
offered support to congressional oversight. In the FY2015 NDAA, Congress called for the
establishment of a 20-member Defense Advisory Committee on Investigation, Prosecution, and
Defense of Sexual Assault in the Armed Forces (DAC-IPAD).149 The committee was established
in 2016 and has since produced several studies.150 Section 548 of the House bill and Section 533
of the Senate bill would have extended the term of the DAC-IPAD for an additional five years.
The House provision would have also expanded the scope of the committee’s research to include
exploring the feasibility of incorporating restorative justice models into the UCMJ.151 Section 535
of the enacted bill adopts the Senate provision and expands the scope of research as proposed in
the House bill.
Section 535 of the Senate bill would have required the committee to review and assess the
relationship between race and ethnicity and the investigation, prosecution, and defense of sexual
assault. In May 2019, the GAO reported that “Blacks, Hispanics, and male servicemembers were
more likely than Whites and female servicemembers to be the subjects of recorded investigations
in all of the military services, and were more likely to be tried in general and special courtsmartial.”152 GAO also reported that differences in how the Services record information on race
and ethnicity make it difficult to identify disparities.153 Section 540A of the House bill would
have required DOD to conduct a review of racial, ethnic, and gender disparities across the entire
military justice system (see also the “Diversity and Inclusion” section of this report). Section 540I
of the enacted bill adopts the House provision and requires the DAC-IPAD to conduct the review
for each fiscal year in which the committee assesses completed court-martial cases.
Both bills (House Section 549 and Senate Section 534) would have required the Secretary of
Defense to establish a 20-member “Defense Advisory Committee for the Prevention of Sexual
Misconduct” with expertise in areas such as organizational culture, suicide prevention,
implementation science,
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.