FY2021 National Defense Authorization Act: Selected Personnel and Health Care Issues

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FY2021 National Defense Authorization Act:

Selected Personnel and Health Care Issues

Updated June 4, 2021

Congressional Research Service

https://crsreports.congress.gov

R46810

SUMMARY

FY2021 National Defense Authorization Act:

Selected Personnel and Health Care Issues

The National Defense Authorization Act (NDAA) authorizes appropriations for a wide range of

national security programs and activities within the Department of Defense (DOD) and other

executive agencies. Congress typically includes organizational reform, new or modified defense

policies, and directed reports or studies among the legislation’s provisions.

For FY2021, the House-passed (H.R. 6395) and Senate-passed (S. 4049) bills sought to

implement or supplement various categories of personnel and health care matters related to

servicemembers, maritime personnel, servicemember families, and DOD civilian employees.

Certain provisions address annual authorizations of military personnel end-strengths, others

affect existing program authorities, and some are novel personnel and healthcare programs. The

legislative process for these two bills culminated on January 1, 2021, when the FY2021 NDAA

became P.L. 116-283 after Congress voted to override a Presidential veto.

The active duty military personnel end-strengths authorized in the FY2021 NDAA are 485,900

for the Army, 347,800 for the Navy, 181,200 for the Marine Corps, and 333,475 for the Air Force

(inclusive of the Space Force). The FY2021 NDAA authorizes a 3.0% increase in military basic

pay, consistent with the Administration’s FY2021 budget request and the House and Senatepassed NDAA bills.

The FY2021 NDAA included several provisions that seek to enhance oversight of diversity and

inclusion issues in DOD and establish various initiatives meant to improve diversity and

inclusion in DOD. Military justice and criminal investigations matters in the FY2021 NDAA

focus on sex-related offenses and protecting military family members.

R46810

June 4, 2021

Alan Ott, Coordinator

Analyst in Defense and

Intelligence Personnel

Policy

Kristy N. Kamarck

Specialist in Military

Manpower

Lawrence Kapp

Specialist in Military

Personnel Policy

Bryce H. P. Mendez

Analyst in Defense Health

Care Policy

Barbara Salazar Torreon

Senior Research Librarian

Hibbah Kaileh

Research Assistant

Several provisions in the FY2021 NDAA address military family matters, such as family

readiness, military spouse education and employment, military childcare programs, and military

parental leave.

The FY2021 NDAA includes a number of provisions that delay or clarify certain congressionally directed or DOD-initiated

reform efforts for military health system administration. There are also provisions meant to enhance Congress’s

understanding of DOD’s health care billing practices and provide authority to waive certain billing requirements. Other

provisions in the FY2021 NDAA address mental health issues affecting servicemembers, veterans, and family members.

There are eight general mental health assessment, funding, and reporting provisions, two substance abuse-related provisions,

three suicide-related provisions, and nine reserve component-related provisions.

A significant difference in both NDAA bills from prior versions is the inclusion of COVID-19 specific provisions. These

address personnel, health care, and public health issues that arose during DOD operations supporting the national response to

the COVID-19 pandemic. The various provisions are intended to:

 Authorize hazardous duty pay for military personnel responding to the pandemic.

 Grant constructive retirement credit for certain reservists unable to complete required annual training.

 Require a report to Congress on how full-time National Guard pandemic response duty is determined.

 Require quarantine housing for National Guard members upon completion of pandemic response duty.

 Direct a study on financial hardships among servicemembers during the COVID-19 pandemic.

 Establish a military health systems review panel to examine the system’s response to COVID-19.

 Require a strategy for DOD pandemic response and preparedness and a related health system study.

 Require a registry of TRICARE beneficiaries diagnosed with COVID-19 and a related report to Congress.

 Require DOD to print information for distributed pandemic materials in languages other than English.

 Extend health care eligibility for certain National Guard members after full-time pandemic response duty.

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FY2021 National Defense Authorization Act: Selected Personnel Issues

Contents

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

Military Personnel ........................................................................................................................... 2

Active Duty Authorized Strength .............................................................................................. 2

Selected Reserve Authorized Strength ...................................................................................... 5

Military Pay Raise ..................................................................................................................... 6

Diversity and Inclusion (D&I) .................................................................................................. 7

Sexual Assault and Harassment in the Military ....................................................................... 11

Military Justice and Criminal Investigations .......................................................................... 16

Military Personnel Programs ......................................................................................................... 20

Military Awards, Honors, and Decorations ............................................................................. 20

Military Family Matters .......................................................................................................... 24

COVID-19 Personnel Program Provisions ............................................................................. 30

Maritime and Civilian Personnel ................................................................................................... 33

Merchant Mariners .................................................................................................................. 33

Defense Civilians .................................................................................................................... 37

Defense Health Care and Public Health ........................................................................................ 40

Military Health System Administration .................................................................................. 41

Military Treatment Facility Billing ......................................................................................... 45

Mental Health .......................................................................................................................... 47

Environmental and Occupational Health Concerns ................................................................ 53

COVID-19 Healthcare and Public Health Provisions ............................................................. 59

Defense Activities and Installations .............................................................................................. 62

Defense Exchange and Commissary Stores ............................................................................ 62

Names and Symbols Linked to Confederate States................................................................. 65

Tables

Table 1. House and Senate Passed FY2021 NDAA Bills ................................................................ 1

Table 2. Active Duty End Strength .................................................................................................. 3

Table 3. Selected Reserve End-Strength.......................................................................................... 5

Table 4. Post-Secondary Maritime Institutions ............................................................................. 34

Table 5. FY2020 and FY2021 MARAD Funding Authorizations ................................................. 35

Table 6. Career and Training Backgrounds of USMMA Superintendents .................................... 37

Table 7. Defense Civilian FTE and OBP Units ............................................................................. 38

Contacts

Author Information........................................................................................................................ 67

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FY2021 National Defense Authorization Act: Selected Issues

Introduction

The United States Constitution grants authority to Congress and the President to provide for the

common defense of the nation. All Department of Defense (DOD) policy, activities, and

operations originate from this shared authority. DOD implements legislative and presidential

delegated authority through orders, directives, regulations, and instructions, or similar

administrative acts.

Congress exercises its national defense authority through DOD primarily, but also through the

intelligence community and other executive agencies with national security functions.1 Congress

gives the Secretary of Defense military authority through statutes that prescribe specific duties

and responsibilities or authorize the general authority needed to conduct national defense affairs.

The House and Senate armed services committees (HASC and SASC) traditionally consider fiscal

year (FY) national defense authorization act (NDAA) bills annually. Table 1 lists certain

legislative actions for the FY2021 House-passed (H.R. 6395) and Senate-passed (S. 4049) bills.

Specific provisions in the NDAA bills are often similar or identical in both versions of the

authorization bills. Alternatively, provisions can be included in one version, but not the other, or

be in both in substantively dissimilar forms.

At some point after passage of each chamber’s authorization bill, the House and Senate usually

form a conference committee to resolve the differences between the two chambers. Should the

conference committee resolve differences, the committee would issue a conference report for

each chamber to consider.

Table 1. House and Senate Passed FY2021 NDAA Bills

Selected Legislative Actions

H.R. 6395

Date of Action

S. 4049

Date of Action

P.L. 116-283

01/01/2021

Received in the House

08/07/2020

Senate passed over veto

01/01/2021

Passed in the Senate

07/23/2020

House passed over veto

12/28/2020

Reported by the SASC

06/24/2020

Vetoed by President

12/23/2020

Presented to President

12/11/2020

Passed in the Senate

11/16/2020

Received in the Senate

08/04/2020

Passed in the House

07/21/2020

Reported by the HASC

07/09/2020

Source: H.R. 6395 actions at https://www.congress.gov/bill/116th-congress/house-bill/6395/actions; S. 4049

actions at https://www.congress.gov/bill/116th-congress/senate-bill/4049/actions.

1 The Constitution provides that Congress shall have power to: provide for the common defense; declare war; raise and

support armies; provide and maintain a navy; make rules for the government and regulation of the land and naval

forces; provide for calling forth the militia; provide for organizing, arming, and disciplining the militia, and for

governing such part of them as may be employed in the service of the United States; and make all laws which shall be

necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution

in the government of the United States, or in any department or officer thereof (Article I). See also CRS In Focus

IF11566, Congress, Civilian Control of the Military, and Nonpartisanship, by Kathleen J. McInnis.

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An NDAA contains provisions that affect individuals who are serving in the Armed Forces, and

their families, as well as those who are retired from military service and those who are employed

in DOD. This CRS report considers selected personnel and health care provisions that were

proposed in the authorization bills and examines those selected provisions that Congress enacted

into law (P.L. 116-283). The report’s analysis and information is presented in five general topic

sections that contain specific subsections with selected personnel or health care issues. A

subsection’s author and CRS point of contact are identified and, if available, CRS products that

are relevant to these specific issues are noted.

Military Personnel

The HASC and SASC have jurisdiction over DOD policy and programs addressed in the FY2021

NDAA that are related to military personnel, retirement, and compensation, including Coast

Guard personnel.2 They also oversee military justice matters that are part of the Act’s Uniform

Code of Military Justice (UCMJ) provisions.

Active Duty Authorized Strength

Background. The term "authorized strength" means the largest number of servicemembers

authorized to be in an armed force, a component, a branch, a grade, or any other category of the

armed forces.3 The armed forces are the Army, Navy, Air Force, Marine Corps, Space Force, and

Coast Guard.4 Congress authorizes such numbers each fiscal year for the end-strength of the

armed forces, except the Coast Guard (See “Coast Guard Active Duty Authorized Strength”

below).5 The term “end strength” means the active duty personnel to be paid from funds

appropriated for active-duty personnel, to include certain members of the Selected Reserve and

National Guard serving on active duty. Such authorizations generally do not include the number

of servicemembers in the Selected Reserve or National Guard that may be mobilized or

federalized for active duty. Authorized active component end-strengths for the FY2020 NDAA,

FY2021 President's Budget, and FY2021 NDAA are shown in Table 2.

After the withdrawal of U.S. forces from Iraq in 2011 and drawdown of forces from Afghanistan

beginning in 2012, Congress began to reverse the trend of increasing end-strength levels that

began in 2001. However, Congress halted further reductions in Army and Marine Corps endstrength 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. Though 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 its recruiting goals for enlisted personnel. 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.

2 U.S. Senate, Document 113-18, Standing Rules of the Senate, January 24, 2013, p. 20; U.S. House of Representatives,

Rules of the House of Representatives, January 11, 2019, p. 6; RCP 116-25, Rules Adopted by the Committees of the

House of Representatives of the United States, 116th Congress, 2019-2020, p. 37.

3 10 U.S.C. §101(b)(11).

4 10 U.S.C. §101(a)(4).

5 10 U.S.C. §115.

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Coast Guard Active Duty Authorized Strength6

Military personnel authorizations for the Coast Guard reserve are included in the selected reserve end-strength

provisions of the NDAA each fiscal year, but the authorizations for the Coast Guard’s active duty personnel

typically are not included. The FY2021 NDAA does however contain a separate Coast Guard authorization act

that approves an active duty end-strength of 44,500 in the Coast Guard (Elijah E. Cummings Coast Guard

Authorization Act of 2020 (P.L. 116-283, §8102)).

Table 2. Active Duty End Strength

FY2020 NDAA, FY2021 Budget Request, and FY2021 NDAA

Service

FY2020

NDAA

FY2021

Budget Request

FY2021

NDAA

NDAA

Difference

Army

480,000

485,900

485,900

5,900

Navy

340,500

347,800

347,800

7,300

Marine Corps

186,200

184,100

181,200

-5,000

Air Force

332,800

333,700

333,475

675

Total

1,339,500

1,351,500

1,348,375

8,875

Source: CRS Analysis.

Active Duty Authorized Strength Sectional Analysis

House-Passed H.R. 6395

Senate-Passed S. 4049

P.L. 116-283

Sec. 401 would authorize a total

FY2021 active duty end-strength of

1,351,500 including

485,900 for the Army

347,800 for the Navy

184,100 for the Marine Corps

327,266 for the Air Force

6,434 for the Space Force

Sec. 401 would authorize a total

FY2021 active duty end-strength of

1,345,205 including

485,000 for the Army

346,730 for the Navy

180,000 for the Marine Corps

333,475 for the Air Force

Sec. 401 authorizes a total FY2021

active duty end-strength of

1,348,375 including

485,900 for the Army

347,800 for the Navy

181,200 for the Marine Corps

333,475 for the Air Force

Discussion. The Administration’s FY2021 budget requested end-strengths of 485,900 for the

Army, 347,800 for the Navy, and 184,100 for the Marine Corps. In comparison to FY2020

authorized end-strengths, these requests represented increases for the Army (+5,900) and Navy

(+7,300), and a decrease for the Marine Corps (-2,100).

The House-passed bill sought end-strengths that are identical to the Administration request for the

Army, Navy, and Marine Corps. The Senate-passed bill sought end-strengths that are lower than

the Administration request for the Army (-900 compared to the Administration request), Navy (1,070), and Marine Corps (-4,100).

In the FY2020 NDAA, Congress authorized the establishment of the United States Space Force, a

new armed force within the Department of the Air Force.7 The Department of the Air Force

6 Established in 1915, the Coast Guard is a military service in the Department of Homeland Security (DHS) and a

branch of the armed forces of the United States. If directed by the President, or by Congress through a declaration of

war, the Coast Guard transfers from DHS to the Department of Defense (DOD) and operates as a service in the Navy.

7 P.L. 116-92, §§951-961.

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currently assigns personnel to the Space Force, but in the future it will “will finalize the process

by which personnel will be formally and permanently ‘transferred’ into the U.S. Space Force.

Transfer describes the process whereby a military member is ‘sworn into’ a different branch of

Service. Enlisted members take a new Oath of Enlistment, and Officers are provided a new

Commission.

The Administration’s budget request proposed a total end-strength of 333,700 for the Air Force,

of which 6,434 was allocated for the Space Force:

The Fiscal Year 2021 President’s Budget supports an increase of 900 Airmen to the allvolunteer force, increasing the total from 332,800 authorized in the FY 2020 National

Defense Authorization Act to 333,700 requested in FY 2021 … Inclusive of the 333,700

end strength, 6,434 military personnel are assigned and/or transferred to the operational

United States Space Force.8

The House-passed version would have required separate end-strength authorizations for the Air

Force (327,266) and Space Force (6,434), which together equal the Administration’s request for

the Air Force (333,700). The Senate-passed provision would have authorized an Air Force endstrength (333,475) which is slightly lower than the Administration request (-225).

The Senate-passed version would have provided lower total end-strengths than the Administration

request. The committee report that accompanied the bill described these reductions in the context

of how the COVID-19 pandemic affected military recruiting and retention. It then noted:

Many of the assumptions utilized in determining the military’s fiscal year 2021 end

strength request are no longer accurate…. Therefore, the committee has taken a cautious

approach to the end strength authorization for active forces. This provision would authorize

end strength levels within existing variance authority for the Army, Navy, and Air Force.

Based on detailed modelling conducted by the Marine Corps, the committee would further

reduce Marine Corps end strength by 4,100 compared to the budget request. The committee

emphasizes that this provision does not signal a lack of support for the military’s end

strength goals. If conditions improve throughout the summer and fall of 2020, the

committee would support restoring end strength to the requested level. 9

The FY2021 NDAA authorizes end-strengths of 485,900 for the Army, 347,800 for the Navy,

181,200 for the Marine Corps, and 333,475 for the Air Force (inclusive of the Space Force). The

FY2021 NDAA conference report noted “The conferees expect the Department of the Air Force

to submit a formal request and justification for [U.S. Space Force] end strength to the

congressional defense committees as part of the President’s Department of Defense budget

request for fiscal year 2022.”

References: See CRS Report R46107, FY2020 National Defense Authorization Act: Selected

Military Personnel Issues, coordinated by Bryce H. P. Mendez and similar reports from earlier

years. Enacted figures for FY2020 found in P.L. 116-92.

CRS Points of Contact: Lawrence Kapp and Alan Ott (Coast Guard).

8 Department of the Air Force, Fiscal Year (FY) 2021 Budget Estimate, Military Personnel Appropriation, 2020, p. 6,

at

https://www.saffm.hq.af.mil/Portals/84/documents/FY21/MILPER_/FY21%20Air%20Force%20Military%20Personnel

_1.pdf?ver=2020-02-10-091310-847.

9 S.Rept. 116-236, pp. 189-90.

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Selected Reserve Authorized Strength10

Background. The overall authorized end-strength of the Selected Reserves has declined by 7.6%

since 2001 (874,664 in FY2001 versus 807,800 in FY2020). Authorized Selected Reserve endstrengths for the FY2020 NDAA, FY2021 President's Budget, and FY2021 NDAA are shown in

Table 3. During this period, changes in authorized strength by reserve component were as

follows: Navy Reserve (-29,900), Army Reserve (-15,800), Army National Guard (-14,526), Air

Force Reserve (-4,258), Marine Corps Reserve (-1,058), Coast Guard Reserve (-1,000) and Air

National Guard (-322).

Table 3. Selected Reserve End-Strength

FY2020 NDAA, FY2021 Budget Request, and FY2021 NDAA

Reserve Component

FY2020

NDAA

FY2021

Budget Request

FY2021

NDAA

NDAA

Difference

Army National Guard

336,000

336,500

336,500

500

Army Reserve

189,500

189,800

189,800

300

Navy Reserve

59,000

58,800

58,800

-200

Marine Corps Reserve

38,500

38,500

38,500

0

Air National Guard

107,700

108,100

108,100

400

Air Force Reserve

70,100

70,300

70,300

200

Coast Guard Reserve

7,000

7,000

7,000

0

Total

807,800

809,000

809,000

1,200

Source: CRS Analysis.

Selected Reserve Authorized Strength Sectional Analysis

House-Passed H.R. 6395

Senate-Passed S. 4049

Sec. 411 would authorize a total

FY2020 Selected Reserve endstrength of 809,000 including:

Army National Guard: 336,500

Army Reserve: 189,800

Navy Reserve: 58,800

Marine Corps Reserve: 38,500

Air National Guard: 108,100

Air Force Reserve: 70,300

Coast Guard Reserve: 7,000

Sec. 411 would authorize a total

FY2020 Selected Reserve endstrength of 809,000 including:

Army National Guard: 336,500

Army Reserve: 189,800

Navy Reserve: 58,800

Marine Corps Reserve: 38,500

Air National Guard: 108,100

Air Force Reserve: 70,300

Coast Guard Reserve: 7,000

P.L. 116-283

Sec. 411 authorizes a total FY2020

Selected Reserve end- strength of

809,000 including:

Army National Guard: 336,500

Army Reserve: 189,800

Navy Reserve: 58,800

Marine Corps Reserve: 38,500

Air National Guard: 108,100

Air Force Reserve: 70,300

Coast Guard Reserve: 7,000

Discussion. The Administration’s FY2021 budget requested end-strengths of 336,500 for the

Army National Guard, 189,800 for the Army Reserve, 58,800 for the Navy Reserve, 38,500 for

10 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.

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the Marine Corps Reserve, 108,100 for the Air National Guard, 70,300 for the Air Force Reserve,

and 7,000 for the Coast Guard Reserve.

In comparison to FY2020 authorized end-strengths, these requests represented increases for the

Army National Guard (+500), Air National Guard (+400), Army Reserve (+300), and Air Force

Reserve (+200), a decrease for the Navy Reserve (-200), and no change for the Marine Corps

Reserve and Coast Guard Reserve.

The Administration request and the House-passed and Senate-passed bills for Selected Reserve

end-strengths were identical. The FY2021 NDAA authorizes these end-strength levels.

References: See CRS Report R46107, FY2020 National Defense Authorization Act: Selected

Military Personnel Issues, coordinated by Bryce H. P. Mendez and similar reports from earlier

years. Enacted figures for FY2020 found in P.L. 116-92. 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 Points of Contact: Lawrence Kapp and Alan Ott (Coast Guard).

Military Pay Raise

Background. Congress has a long-standing interest in military pay raises, as they impact the

overall cost of military personnel and recruitment and retention of high-quality personnel serving

in the all-volunteer military. Section 1009 of Title 37, U.S. Code, codifies the formula for an

automatic annual increase in basic pay indexed to the annual increase in the Employment Cost

Index (ECI). The statutory formula stipulates that the increase in basic pay for 2021 will be 3.0%

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 FY2021 President’s Budget requested a 3.0% military pay raise, equal to the amount from

the statutory formula.

Military Pay Raise Sectional Analysis

House-Passed H.R. 6395

Senate-Passed S. 4049

Sec. 601 specifies that basic pay

will increase by 3.0% on January 1,

2021.

No similar provision

P.L. 116-283

Sec. 601 increases basic pay by

3.0% on January 1, 2021.

Discussion. Section 601 of the House-passed bill directs a 3.0% increase in basic pay. The

Senate-passed bill does not contain a provision specifying an increase in basic pay, leaving in

place the 3.0% automatic adjustment provided by 37 U.S.C. §1009. The FY2021 NDAA adopts

the House provision’s 3.0% increase in basic pay.

References: See in CRS Report R46107, FY2020 National Defense Authorization Act: Selected

Military Personnel Issues, coordinated by Bryce H. P. Mendez and similar reports from earlier

years. For an explanation of the pay raise process and historical increases, see CRS In Focus

IF10260, Defense Primer: Military Pay Raise, by Lawrence Kapp. For additional information on

military pay, see CRS Report RL33446, Military Pay: Key Questions and Answers, by Lawrence

Kapp and Barbara Salazar Torreon.

CRS Points of Contact: Lawrence Kapp and Alan Ott (Coast Guard).

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Diversity and Inclusion (D&I)

Background. In the FY2009 NDAA, Congress authorized the creation of the Military Leadership

Diversity Commission (MLDC).11 Following that effort, in 2012, DOD developed and issued a

five-year Diversity and Inclusion Strategic Plan for 2012-2017.12 In the FY2020 NDAA,

Congress required DOD to update and implement its strategic plan.13 Since 2009, several DOD

policy shifts have expanded career opportunities for women in submarine and ground combat

roles, and have altered conditions for service of transgender servicemembers. The implementation

of these policies and the DOD’s integration of demographically diverse groups remains an area of

congressional interest and oversight.

D&I Sectional Analysis

House-Passed H.R. 6395

Senate Passed S. 4049

P.L. 116-283

Sec. 571 would amend diversity

and inclusion reporting

requirements under 10 U.S.C. §113

to include strategic

metrics/benchmarks.

Sec. 572 would establish a

statutory requirement for a DOD

Diversity and Inclusion Advisory

Council under 10 U.S.C. §186.

Sec. 575 would require an annual

report on demographics of officers

appointed to certain grades.

Sec. 1785 would require the

military departments to share best

practices and lessons learned in the

integration of minority groups.

Sec. 1786 would require DOD

policy to define and eliminate

conscious and unconscious gender

bias.

Sec. 551 adopts elements of several

House provisions and Senate Section

520 under a consolidated D&I

initiative. It requires DOD to produce

Sec. 520 would require DOD to

annual, publicly available D&I reports

report to Congress on the findings

that include certain standardized

of a recently created defense board

reporting criteria and metrics. It also

and advisory committee for

requires coordination across the

diversity issues.

military department. It also requires

annual meetings between the

Secretaries of the military departments

to assess progress toward D&I goals.

Sec. 502 would require DOD to

ensure diversity in the membership

of selection boards.

No similar provision

Sec. 503 adopts the House provision,

amending 10 U.S.C. §612(a)(1), 10

U.S.C. §573(b), and 10 U.S.C.

§14102(b).

No similar provision

Sec 524 adopts the House provision

and requires DOD to submit a report

to Congress with recommendations

on further redactions that could

eliminate bias in the selection process.

No similar provision

Sec. 913 adopts the House provision

for a DOD Chief Diversity Officer and

includes certain qualifications for the

position. It requires the military

departments and the commandant of

Sec. 503 would require DOD to

redact personally identifiable

information in promotion boards.

Sec. 912 would establish the

positions of Chief Diversity Officer

for DOD and each military

department under 10 U.S.C. §146.

11 P.L. 110-417.

12 DOD, Diversity and Inclusion Strategic Plan, 2012-2017, at

https://diversity.defense.gov/Portals/51/Documents/DoD_Diversity_Strategic_Plan_%20final_as%20of%2019%20Apr

%2012%5B1%5D.pdf

13 P.L. 116-92 §555.

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House-Passed H.R. 6395

Senate Passed S. 4049

P.L. 116-283

the Coast Guard to appoint senior

advisors for D&I.

No similar provision

Sec. 554 creates the position of

Deputy Inspector General for

oversight of D&I programs and policies

in the Armed Forces and requires

tracking and reporting of supremacist,

extremist, and criminal gang activity.

Sec. 518 would authorize a 5-year

pilot program in connection with

Senior Reserve Officers’ Training

Corps (SROTC) units at

Historically Black Colleges and

Universities and Minority Serving

Institutions including financial

assistance for flight training.

Sec. 546 is a similar provision to

House Sec. 518.

Sec. 519 adopts the House provision

and includes an authority for the

Secretary of Homeland Security to

oversee financial assistance for flight

training for members of the Coast

Guard College Student PreCommissioning Initiative Program.

Sec. 577 would require a report

evaluating barriers to minority

participation in certain units of the

Armed Forces.

Sec. 519 is a similar provision to

House Sec. 577.

Sec. 557 adopts the Senate provision

and requires a report by a federally

funded research division by July 1,

2022.

No similar provision

Sec. 571 adopts the House provision

under 10 U.S.C. §626 with a goal of

having diversity in the officer corps

reflect the diversity of each armed

force as a whole. This provision also

includes the Coast Guard.

No similar provision

Sec. 555 adopts the House provision

with an amendment requiring a policy

to be developed and briefed to the

Armed Services Committees within

180 days of enactment.

Sec. 573 would establish an office

of the Special Inspector General for

Racial and Ethnic Disparities in the

Armed Forces.

Sec. 554 would require DOD to

establish a mentoring and career

counseling program for officers.

Sec. 579 would require a DOD

plan to prevent discrimination and

reduce negative career impacts for

pregnant servicemembers and

DOD civilians.

No similar provision

Sec. 541 would require certain

training on religious

accommodations.

Sec. 556 adopts the Senate provision.

Sec. 576 would require DOD to

develop and report on plans to

increase female and minority

representation in the Armed

Forces.

Sec. 5516 would require DOD to

submit and implementation plan for

Not adopted (elements adopted in

Government Accountability Office

other provisions).

(GAO) recommendations on female

recruitment and retention.

Sec. 574 would require DOD to

include workplace survey questions

about racist, xenophobic, antiSemitic, supremacist, or extremist

activity.

Sec. 5586 is a similar provision to

House Section 574 and would

require DOD to include workplace

survey questions about racist, antiSemitic, or supremacist, activity.

Sec. 553 adopts the Senate provision.

Sec. 520 would require a study on

SROTC and JROTC recruitment

and advancement and correlations

with race/ethnicity.

No similar provision

Sec. 519D adopts the House

provision with an amendment to study

also whether JROTC participants are

more likely to join the military than

non-participants.

Sec. 1710G would require a

report from each service academy

No similar provision

Sec. 558 requires a GAO report that

examines equal opportunity claims and

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FY2021 National Defense Authorization Act: Selected Issues

House-Passed H.R. 6395

on command climate, equal

opportunity claims and minority

inclusion in education and

extracurricular activities.

Senate Passed S. 4049

P.L. 116-283

command climate surveys at the

service academies over a 2-year

period.

Discussion. The House and Senate bills included several provisions that sought to enhance

oversight of diversity and inclusion issues in DOD. In June and July 2020, then-Secretary of

Defense Mark Esper announced several initiatives aiming to improve diversity and inclusion in

DOD.14 One of these initiatives was to establish a medium-term Defense Board on Diversity and

Inclusion, and a long-term Defense Advisory Committee on Diversity and Inclusion in the Armed

Services “to provide an independent and enduring review and assessment.” Section 551 of the

FY2021 NDAA consolidates several provisions from the House and Senate bills to create

reporting requirements on the advisory committee’s structure and findings and to prohibit the

dissolution of the committee without congressional notification. Section 551 also seeks to

standardize D&I metrics, data collection, methodology, and reporting across the armed forces and

Coast Guard and requires certain reports to be publicly available after delivery to Congress.

Metrics constructed under this authority are prohibited from being used to establish diversitybased quotas or undermining merit-based processes. In addition, the provision requires DOD

policies to “define conscious and unconscious bias and provide guidance to eliminate such bias.”

The provision requires plans and policies to address D&I barriers across the military lifecycle

starting with recruitment and accession and requires annual meetings of senior leadership across

the departments to provide a forum to assess progress towards D&I goals and share advice.

Secretary Esper’s July memo ordered a review of policies with respect to promotion boards and

selection processes including provisions for diversity in promotion and selection board panels15

and removal of pictures and references to race, ethnicity, and gender in promotion packets. The

final enacted bill adopts two provisions of the House bill that affect how DOD conducts

promotion and selection boards. Section 503 amends promotion statutes to ensure that boards

“represent the diversity of the armed forces to the extent practicable.” Section 524 requires the

redaction of official photos from selection board materials. Part of the justification behind the

removal of pictures and, perhaps, other personally identifiable information is the belief that it will

reduce the impact of unconscious bias that can affect promotion board decisions.16

14 Memorandum from Mark Esper, Secretary of Defense, Actions for Improving Diversity and Inclusion in the

Department of Defense, June 19, 2020, at https://media.defense.gov/2020/Jun/22/2002319394/-1/-1/1/ACTIONS-FORIMPROVING-DIVERSITY-AND-INCLUSION-IN-THE-DOD.PDF. Memorandum from Mark Esper, Secretary of

Defense, Immediate Actions to Address Diversity, Inclusion, and Equal Opportunity in the Military Services, July 14,

2020, at https://media.defense.gov/2020/Jul/15/2002457268/-1/1/1/Immediate_Actions_to_Address_Diversity_Inclusion_Equal_Opportunity_in_Military_Services.pdf

15 Covered promotion boards are those for active and reserve officers. The legislation also defines selection boards as

any board “used with respect to the promotion, education, or command assignments of members of the Armed Forces

that is not covered by the amendments made by this section.”

16 Unconscious bias, implicit bias, or implicit social cognition refers to the assumptions or social stereotypes that

individuals form about certain groups of people that are shaped by experience and culture, but held outside the

individual’s conscious awareness. Implicit bias has been associated with unintentional discriminatory behavior towards

individuals based on race, sex, or other physical attributes. Anthony G. Greenwald and Linda Hamilton Kriegert,

“Implicit Bias: Scientific Foundations (Section VIII),” California Law Review, vol. 94, no. 4 (July 2006). Jeff Schogol,

“Army removes indicators of race and gender in soldier promotions in an effort to fight bias,” Task and Purpose, June

26, 2020.

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The final enacted bill could raise the prominence of diversity and inclusion issues in the Armed

Forces by its establishment of several new positions. Section 913 establishes the position of Chief

Diversity Officer for DOD, reporting directly to the Secretary of Defense and fourth in the DOD

order of precedence, which makes this office senior to the Secretaries of the military departments.

It also establishes Chief Diversity Officers for each of the military departments and the Coast

Guard. Section 554 of the final enacted bill also establishes a Deputy Inspector General position

for oversight and audit of D&I programs and supremacist, extremist, and criminal gang activity of

a member of the Armed Forces. Previously the DOD Office for Diversity, Equity, and Inclusion

(ODEI), under the Office of the Secretary of Defense for Personnel and Readiness, was the

primary office responsible for developing and implementing diversity and equal opportunity

policies and programs.17

The final enacted bill (Section 519) adopts similar provisions from the House and Senate bills

(Sections 518 and 546) to authorize five-year pilot programs with Historically Black Colleges and

Universities (HBCUs) and Minority Serving Institutions.18 The purpose of these pilot programs

would be to (1) reduce barriers to participation in Senior Reserve Officer Training Corps

(SROTC) activities for covered institutions and (2) provide financial assistance for flight training

for participants in SROTC and the Coast Guard Student Pre-Commissioning Initiative (CSPI). A

2014 RAND Corporation report on diversity in the Air Force found that “There is a lack of

racial/ethnic minorities and women in rated career fields—including pilot, navigator, air battle

manager, combat systems officer, and flight surgeon—which have the highest promotion and

retention rates.”19 Financial assistance or increased emphasis on flight training programs at

HBCUs and MSIs might be one way to encourage minority selection of aviation occupations.

Other data and studies have shown that minorities are underrepresented in certain career fields

(like combat and special operations occupations).20

Section 577 of the House bill and Section 519 of the Senate bill are similar provisions to require

further study of racial and gender barriers to selection and participation in designated career

fields. The final enacted bill (Section 557) adopts the Senate provision requiring a report titled

‘‘Study on Reducing Barriers to Minority Participation in Elite Units in the Armed Services.’’21

Section 571 of the final enacted bill requires DOD to establish mentoring and career counseling

programs with the explicit goal of having the officer corps in each branch of the service reflect

the diversity of the service as a whole. This provision also includes the Coast Guard.

17 See https://diversity.defense.gov/ODMEO-Leadership/.

18 These covered institutions are, as per P.L. 116-92, §292, “a part B institution (as that term is defined in section

322(2) of the Higher Education Act of 1965 (20 U.S.C. §1061(2)); or any other institution of higher education (as that

term is defined in section 101 of such Act (20 U.S.C. §1001)) at which not less than 50 percent of the total student

enrollment consists of students from ethnic groups that are underrepresented in the fields of science and engineering.”

19 Nelson Lim, Improving Demographic Diversity in the U.S. Air Force Officer Corps, RAND Corporation, p. xviii, at

https://www.rand.org/content/dam/rand/pubs/research_reports/RR400/RR495/RAND_RR495.pdf.

20 CNA for the Office of the Under Secretary of Defense for Personnel and Readiness, Population Representation in

the Military Services, Table B-20. Active Component Enlisted Members, FY18: by Occupational Area, Service, Race,

and Gender, 2018, at https://www.cna.org/pop-rep/2018/appendixb/b_20.html. Margaret Harrell et al., Barriers to

Minority Participation in Special Operations Forces, RAND Corporation, 1999, at

https://www.rand.org/pubs/monograph_reports/MR1042.html.

21 The bill requires a review of recommendations 1999 RAND Corporation report entitled “Barriers to Minority

Participation in Special Operations Forces.” The Senate version of the bill also included a 2018 RAND report entitled

“Understanding Demographic Differences in Undergraduate Pilot Training Attrition.” While the final enacted bill does

not include a reference to this report, it does require the review to include pilot and navigator occupational specialties.

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FY2021 National Defense Authorization Act: Selected Issues

Department of Defense policies prohibit unlawful employment discrimination based on sex (to

include pregnancy) for DOD civilian employees, but do not explicitly list pregnancy as a

condition subject to sex-based discrimination against servicemembers.22 In July 2020, Secretary

of Defense Mark Esper announced that DOD would be releasing a new policy to prohibit

pregnancy-based discrimination against servicemembers. Section 579 of the House bill requires

DOD to develop a plan to safeguard pregnant servicemembers and DOD civilians from

discrimination and to provide mechanisms to ensure that their careers are not harmed by

pregnancy and childbirth. The final enacted bill adopts this provision (Section 555) and requires

DOD to brief the Armed Services Committees on the policy.

Section 541 of the Senate bill requires training for commanders, chaplains, judge advocates, and

others as recognized by the Secretary on religious accommodations for servicemembers. This

follows a recommendation in the Senate Report to accompany the FY2018 NDAA.23 The final

enacted bill adopts this provision.

Other provisions adopted in the final enacted bill require DOD to conduct specific surveys or

studies. Section 553 requires workplace equal opportunity surveys to include questions about

“racist, anti-Semitic, or supremacist conduct.” Section 519D requires a study on recruitment and

career outcomes for Junior Reserve Officer Training Corps (JROTC) and SROTC participants.

Finally, Section 558 requires a GAO study that examines equal opportunity and command climate

surveys at the service academies.

References: See CRS Report R44321, Diversity, Inclusion, and Equal Opportunity in the Armed

Services: Background and Issues for Congress, by Kristy N. Kamarck; CRS In Focus IF11235,

Defense Primer: Senior Reserve Officer Training Corps, by Kristy N. Kamarck; CRS In Focus

IF11313, Defense Primer: Junior Reserve Officers’ Training Corps (JROTC), by Kristy N.

Kamarck; and CRS Report R46107, FY2020 National Defense Authorization Act: Selected

Military Personnel Issues, coordinated by Bryce H. P. Mendez.

Point of Contact: Kristy N. Kamarck.

Sexual Assault and Harassment in the Military

Background: Over the past decade, sex-related misconduct in the military, such as sexual assault

and sexual harassment, has generated persistent congressional and media attention. Congress has

(1) required additional study, data collection, and reporting to determine the scope of the issue;

(2) expanded protections and support services for victims; (3) made substantial changes to the

military justice system; and (4) taken other actions to enhance sexual assault prevention and

response (SAPR). Specified sex-related offenses are crimes under the Uniform Code of Military

Justice (UCMJ) and subject to prosecution by court-martial.24

22 DoD Directive 1020.02E; Cyrus Salazar, Updates on DoD Directives and DoD Instructions: Pregnancy

Discrimination, Diversity and Inclusion, and Equal Opportunity, DOD Office of Diversity, Equity, and Inclusion,

Presentation to the Defense Advisory Committee on Women in the Services, September 2020, at

https://dacowits.defense.gov/Portals/48/Documents/General%20Documents/RFI%20Docs/Sept2020/ODEI%20RFI%2

06.pdf?ver=2020-08-31-123612-570.

23 S.Rept. 115-125 states “The committee urges the Department, in consultation with commanders, chaplains, and judge

advocates, to ensure that appropriate training on religious liberty is conducted at all levels of command on the

requirements of the law, and to that end the committee directs the Secretary, in consultation with the Chief of Chaplains

for the Army, Navy, and Air Force, to develop curriculum and implement training concerning religious liberty in

accordance with the law. Recipients of this training should include commanders, chaplains, and judge advocates.

24 10 U.S.C. §1044e(h). A sex-related offense means any violation of article 120, 120b, 120c, or 130 of the UCMJ; or

an attempt to commit such offense, as punishable under article 80.

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FY2021 National Defense Authorization Act: Selected Issues

Sexual Assault and Harassment in the Military Sectional Analysis

House-Passed H.R. 6395

Senate-Passed S. 4049

P.L. 116-283

Reporting and Accountability

Sec. 543 would add additional

areas of review for the Defense

Advisory Committee for the

Prevention of Sexual Misconduct

(DAC-PSM).

Sec. 527 is an identical provision

to House Sec. 543.

Sec. 533 adopts this provision.

No similar provision

Sec. 528 would require the DACPSM to include additional matters in Sec. 534 adopts the Senate provision.

its report to Congress.

No similar provision

Sec. 522 would extend DAC-PSM

oversight to the Coast Guard

Academy.

Sec. 535 adopts the Senate provision.

No similar provision

Sec. 525 would require a DOD

strategy for holding leadership

accountable for discharging the

sexual harassment policies and

programs.

Sec. 539B adopts the Senate

provision.

Sec. 544 would modify datareporting requirements on victims

of sexual assault for the Defense

Advisory Committee on

Investigation, Prosecution, and

Defense of Sexual Assault in the

Armed Forces (DAC-IPAD).

No similar provision

Sec. 536 adopts the House provision.

Sec. 549 would add a question

regarding prosecutions of sexual

assault to current workplace and

gender relations surveys.

No similar provision

Not adopted

Sec. 550A would require an

annual report to defense

committees on the status of sexrelated offense investigations.

No similar provision

Sec. 594 would require a report

on the feasibility of placing

servicemembers into a non-rated

period when they are in an

academic status and are victims of

sexual assault.

Sec. 530 would require briefing

the defense committees on

placement of members of the

Armed Forces into a non-rated

period when they are in an

academic status and are victims of

sexual assault.

Sec. 539F adopts the Senate

provision and requires a briefing within

270 days of enactment.

Sec. 550B would require a report

on sexual abuse and harassment of

recruits during medical

examinations prior to entry into

the Armed Force.

No similar provision

Not adopted

Sec. 539C adopts the House

provision.

Victim Services and Support

Sec. 548 would require a safe-toreport policy applicable across the

Armed Forces.

Congressional Research Service

Sec. 526 is an identical provision

to House Sec. 548.

Sec. 539A adopts this provision.

12

FY2021 National Defense Authorization Act: Selected Issues

House-Passed H.R. 6395

No similar provision

Senate-Passed S. 4049

P.L. 116-283

Sec. 521 would extend the time

required for expedited decisions in

connection with applications for

Sec. 531 adopts the Senate provision.

change of station or unit transfer of

members who are victims of sexual

assault or related offenses.

Sec. 546 would require the

Secretaries of Defense and

Veterans Affairs to develop and

implement a standard of

coordinated care for survivors of

sexual trauma.

No similar provision

Sec. 538 adopts the House provision.

Sec. 547 would require a policy on

separation of victim and accused at

military service academies.

Sec. 529 is a similar provision to

House Sec. 547.

Sec. 539 adopts the House provision

with amendments to minimize

prejudicial impact, and to also apply to

the U.S. Coast Guard Academy.

No similar provision

Sec. 524 would require a

congressional briefing on Special

Victims’ Counsel program

Sec. 539E adopts the Senate

provision.

No similar provision

Sec. 523 would require a survey

and report on ability of Sexual

Assault Response Coordinators and Sec. 539D adopts the Senate

Sexual Assault Prevention and

provision.

Response Victim Advocates to

perform duties.

Sec. 550C would require the

Secretary of Defense to prescribe

regulations establishing a process by

which a member of the Armed

Forces may confidentially allege a

complaint of sexual harassment to

an individual outside the immediate

chain of command.

No similar provision

Sec. 532 allows for confidential

reporting of sexual harassment,

requires DOD to develop a plan for

access to confidential reports to

identify serial harassers, and requires

DOD to report sexual harassment

complaints to Congressional

committees every two years.

Discussion: The following discussion comprises two topic areas, (1) Reporting and

Accountability, and (2) Victim Services and Support. Other provisions that affect military judicial

processes as they relate to sexual assault are discussed in the following section, “Military Justice

and Criminal Investigations.”

Reporting and Accountability. Congress, in the FY2020 NDAA, required the establishment of a

Defense Advisory Committee for the Prevention of Sexual Misconduct (DAC-PSM) with

expertise in areas such as organizational culture, suicide prevention, implementation science, and

the continuum of harm.25 Identical provisions in the House and Senate bills (Sections 543 and

527) require expanding the committee’s scope for assessment by including the contractor work

force and adding the authority to commission formal research. The final enacted bill adopts this

change. The final enacted bill also adopts in Section 535, language from Senate Sections 522, and

25 DOD defines continuum of harm as a range of interconnected, inappropriate behaviors that are connected to the

occurrence of sexual assault and that support an environment that tolerates these behaviors. For more information, see,

GAO, Sexual Violence: Actions Needed to Improve DOD's Efforts to Address the Continuum of Unwanted Sexual

Behaviors, GAO-18-33, December 18, 2017, at https://www.gao.gov/products/GAO-18-33.

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FY2021 National Defense Authorization Act: Selected Issues

528 that amend the committee’s specified oversight of “each military service academy” to clarify

that its oversight includes the U.S. Coast Guard Academy (USCGA).26 Additional areas of DACPSM study and reporting under Sections 533, 534, and 535 include a review of evidence-based

sexual assault prevention assessments in workplaces and institutions of higher education, an

assessment of SAPR training in professional military education (PME), and feasibility studies for

preventing sexual assault focused on recruit screening and end-of-service interviews. Section 534

of the final enacted bill specifically requires an examination of reporting databases to ascertain

whether the level of anonymization is sufficient to both protect victim privacy and provide

military leaders with adequate information.

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).27 In the FY2019 NDAA, Congress required the DAC-IPAD to collect data on

accusations of collateral misconduct against victims of sexual assault.28 Section 536 of the final

enacted bill adopts a House provision that amends this provision to require data collection on

victims of a sexual offense (vice assault) who are suspected (vice accused) of a collateral offense.

It also requires standardized data collection by the military services to support this requirement.

DOD’s Sexual Assault Prevention and Response Office (SAPRO) oversees sexual assault

prevention policy and produces congressionally mandated surveys and annual reports on sexual

assault prevalence, incidents, response actions, and administrative or judicial outcomes.29 Section

549 of the House bill would have added a question to the DOD workplace gender relations

surveys and focus groups to ascertain whether servicemembers would be more willing to report a

sexual assault if prosecution decisions were made by lawyers instead of military commanders.30

This provision was not adopted in the final enacted bill. Section 550B of the House bill, which

would have required a DOD report on sexual assaults that happened during military recruit

medical examinations, also was not adopted; however, the committee report directed DOD to

brief the Armed Services Committees on information related to this population. Section 539C

adopts Section 550A of the House bill, which adds an annual reporting requirement for the status

of sexual assault investigations to include reasons for investigations that are longer than 180 days

in duration. DOD currently collects and reports data on the number of investigations pending and

completed, and the time interval from report of investigation to judge advocate general

recommendations.31

Victim Support and Services. Both the House and Senate bills included the requirement for

development of a safe-to-report policy (House Section 548 and Senate Section 526). This policy,

which has been implemented in various forms at the military service academies, is intended to

remove disincentives for alleged victims to report sexual assault incidents by protecting cadets

26 There are five service academies. The remaining institution, the U.S. Merchant Marine Academy (USMMA), is not

subject to the specified oversight of DAC-PSM. See

https://www.oig.dot.gov/sites/default/files/USMMA%20SAPR%20Final%20Report.pdf

27 P.L. 113-291, §546. See https://dacipad.whs.mil/.

28 P.L. 115-232, §547; 10 U.S.C. §1561 note.

29 Congress required annual reports in P.L. 111-383, §1631; 10 U.S.C. §1561 note. Workplace and gender relations

surveys are required by 10 U.S.C. §481. DOD SAPRO surveys and reports can be found at

https://www.sapr.mil/reports.

30 For more on prosecution decisions in military sexual assault cases, see CRS Report R44944, Military Sexual Assault:

A Framework for Congressional Oversight, by Kristy N. Kamarck and Barbara Salazar Torreon.

31 DOD, Department of Defense Fiscal Year 2019 Annual Report on Sexual Assault in the Military, April 28, 2020, p.

1, and Appendix C: Metrics and Non-Metrics, p. 33.

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FY2021 National Defense Authorization Act: Selected Issues

and midshipmen from punishment for minor collateral misconduct violations that might be

uncovered during an investigation.32 A similar provision was proposed in the FY2020 NDAA, but

was not adopted.33 Survey data suggest that collateral misconduct (e.g., underage drinking) by the

victim may reduce reporting of sexual assault. According to active duty survey data for 2018,

34% of women and 26% of men who experienced a sexual assault did not report the assault

because they “thought they might get in trouble for something they had done or would get labeled

a troublemaker.”34 The final enacted bill adopted the Senate provision under Section 539A.

In the FY2011 NDAA, Congress added a provision that required the Secretary concerned to

provide timely consideration of an application for permanent change of station or change of duty

assignment by a victim of sexual assault or related offense.35 Under this superseded expedited

transfer policy, the commanding officer was required to make a decision within 72 hours of the

submission of an application. Section 531 of the final enacted bill adopts a Senate provision that

extends this decision making timeline to five calendar days.

The FY2020 NDAA provided for the ability of a military service academy cadet or midshipmen

who is the victim of an alleged sexual assault to request a transfer to a different service academy

or Senior Reserve Officer Training Corps (SROTC) unit.36 Provisions in the House (§547) and

Senate (§529) bills would require the Secretary of Defense to prescribe policies to minimize

contact between the alleged victim and any offenders during academic and professional activities

at the service academies. The Senate bill would expand this requirement to all DOD degreegranting institutions and the Coast Guard Academy.37 Section 539 of the final enacted bill adopts

the House provision with amendments to include the Coast Guard Academy and to minimize

“prejudicial impact.”

In recent years, Congress has made several reforms to the Special Victim Counsel (SVC)

program. An SVC is a judge advocate or civilian attorney who meets special training

requirements and provides legal assistance to victims of sexual assault throughout the military

justice process.38 Section 524 of the Senate bill requires a congressional briefing on SVC staffing

and caseloads under additional responsibilities imposed by the FY2020 NDAA.39 Another

provision in the Senate bill (Section 523) requires a survey and report on the ability of Sexual

Assault Response Coordinators (SARCs) and Sexual Assault Prevention and Response Victim

Advocates (SAPR-VAs) to perform duties.40 Areas of assessment include access for these support

32 Minor collateral offenses are defined in Section 527 of the Senate bill as, “(1) Improper use and possession of

alcohol; (2) Consensual intimate behavior, including adultery or fraternization; (3) Presence in off-limits areas; and (4)

Other misconduct specified in the regulations promulgated.” The U.S. Air Force Academy began implementing a safeto-report policy in Academic Program Year (APY) 2017-18 and modeled it after a similar Naval Academy policy.

Annual Report on Sexual Harassment and Violence at the Military Service Academies (MSAs) for Academic Program

Year (APY) 2017-2018, Appendix C: United States Air Force Academy, January 25, 2019, p. 4.

33 See discussion in CRS Report R46107, FY2020 National Defense Authorization Act: Selected Military Personnel

Issues, coordinated by Bryce H. P. Mendez.

34 DOD Office of People Analytics, 2018 Workplace and Gender Relations Survey of Active Duty Members, Overview

Report, May 2019, pp. 35-36, at

https://www.sapr.mil/sites/default/files/Annex_1_2018_WGRA_Overview_Report.pdf. CRS has not been able to find

DOD data on the number of reports of sexual assault that occur following a misconduct offense.

35 P.L. 112-81, §582, codified in 10 U.S.C §673.

36 P.L. 116-92, §555.

37 Other degree granting institutions would include, for example, the War Colleges, and Navy Postgraduate School.

38 10 U.S.C. §§1044, 1044e, and 1565b.

39 P.L. 116-92, §548.

40 SARCs are servicemembers or civilian DOD employees appointed by an installation commander or other appropriate

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FY2021 National Defense Authorization Act: Selected Issues

staff to resources and other assistance, perceptions of retaliation, and responsiveness of

commanders. Both of these provisions were adopted in the final enacted bill.

In 2005, DOD instituted a restricted reporting option for sexual assault victims. This option is

intended to help victims receive needed support services while maintaining a certain level of

privacy. When a victim chooses to make a restricted report, he or she discloses the incident to

specified officials and may then gain confidential access to medical health, mental health, and

victim advocacy services. Incident data is then reported by the official to SAPRO for inclusion in

DOD sexual assault statistics. Section 550C of the House bill requires DOD to provide a similar

confidential reporting process for those who experience sexual harassment. This provision also

requires DOD to develop mechanisms for tracking and reporting confidential complaints in

annual reports to Congress. Section 532 of the final enacted bill adopts this provision with some

amendments to make reports to Congress a biennial requirement and for DOD to develop a plan

for using confidential reports to identify serial harassers.

References: See CRS Report R44944, Military Sexual Assault: A Framework for Congressional

Oversight, by Kristy N. Kamarck and Barbara Salazar Torreon and CRS Report R46097, Military

Families and Intimate Partner Violence: Background and Issues for Congress, by Kristy N.

Kamarck, Alan Ott, and Lisa N. Sacco.

Point of Contact: Kristy N. Kamarck.

Military Justice and Criminal Investigations

Background. The UCMJ Act of 1950 established a unitary military justice system for the armed

forces.41 Among other matters, it standardized servicemember rights and protections at courtsmartial that are similar to rights provided in civilian criminal courts. The Act also made

significant changes in trial procedure and appellate review. Under the Act, as amended, there is a

Court of Criminal Appeals (CCA) in each military service and a Court of Appeals for the Armed

Forces (CAAF).42 The CCA is composed of military and civilian judges appointed by the Judge

Advocate General of the military service, and the CAAF is composed of five civilian judges

appointed by the President for a specific term.43

Certain judgments by a court-martial are automatically appealed to the CCA, while other appeals

are mandated by a service’s Judge Advocate General. An accused may appeal judgments not

subject to automatic or mandated reviews.44 If the CCA affirms the findings of a court-martial,

appeals to the CAAF are at the discretion of the accused, except an affirmed conviction that

imposes a death sentence, which is automatically appealed.45 In lieu of a CAAF review, or after

CAAF review, the accused may also seek review by the U.S. Supreme Court.46

appointment authority. The SARC serves as a single point of contact for coordinating and documenting sexual assault

response and victim care and reports directly to the installation commander. A SAPR-VA is a volunteer servicemember

or DOD civilian employee who reports directly to the SARC. The SAPR-VA facilitates care and provides referrals and

non-clinical support to adult victims of sexual assault.

41 P.L. 81-506.

42 10 U.S.C. §§866 (Art. 66), 941 (Art. 41).

43 10 U.S.C. §942 (Art. 42).

44 10 U.S.C. §866 (Art. 66).

45 10 U.S.C. §867 (Art. 67).

46 10 U.S.C. §867a (Art. 67a).

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Criminal investigations in the armed forces must be expressly authorized in law. Military

commanders may investigate UCMJ offenses within their command, but a service’s military

criminal investigation organization (MCIO) typically investigates serious offenses under the

UCMJ and Title 18 of the U.S. Code.47 The MCIOs in DOD are the Naval Criminal Investigative

Service (NCIS), Army Criminal Investigation Command (CID), and Air Force Office of Special

Investigations (OSI).48 The Coast Guard Investigative Service (CGIS) is also a MCIO, and its

jurisdiction extends to enforcement of certain maritime laws and coastwise trade laws.49

Military Justice and Criminal Investigations Sectional Analysis

House-Passed H.R. 6395

Senate-Passed S. 4049

P.L. 116-283

Military Justice

Sec. 531 would create a derivative

offense of violent extremism if

other UCMJ offenses are

committed against a government or

protected group of persons.

No similar provision

Not adopted

Sec. 532 would require the

preservation of all general and

special court-martial records for 15

years, regardless of outcome.

Sec. 533 is similar to House Sec.

532.

Sec. 543 adopts both provisions by

adding the 15 year rule as a new

subsection to UCMJ Art. 140a.

Sec. 540K would provide notice to

victims of post-trial filings that

could unseal their private or

privileged private information, or

cause release of the accused.

Sec. 531 is similar to House Sec.

540K.

Sec. 541 adopts both provisions by

adding the victim notice

requirement to UCMJ Art. 6b.

Sec. 540J would modify current

CCA weight of evidence factual

sufficiency review that applies to

the accused and the government, by

limiting its application to whether

the government’s evidence was

factually sufficient. It would also

require the court’s judges to have

12 or more years of experience

practicing law.

Sec. 532 is similar to House Sec.

540J, but it would require the

court’s judges to have 12 or more

years of experience of military or

civilian criminal trial experience, but

this requirement could be waived

under certain conditions.

Sec. 542 adopts the House

provision by adding the factual

sufficiency review and judge

qualification requirement to UCMJ

Art. 66, but a Senate amendment

adds a CAAF review to UCMJ Art.

67 of any CCA findings of factual

insufficiency.

Sec. 540G would prohibit anyone

who may serve as a court-martial

member from receiving any briefing

on the same court-martial.

No similar provision

Not adopted

No similar provision

Sec. 534 would require a GAO

report on status of assessments and

recommendations related to racial,

ethnic, and gender disparities in the

military justice system.

Sec 547 adopts the Senate

provision with initial briefing due to

HASC and SASC by May 1, 2021.

47 Department of Defense, Instruction 5505.03, Initiation of Investigations by Defense Criminal Investigative

Organizations, March 24, 2011. A serious offense is an offense punishable by more than one year in prison or a

punitive discharge.

48 14 U.S.C. §§522-525; 10 U.S.C. §§7377, 8750, 9377; Department of Defense, Instruction 5505.16, Investigations by

DoD Components, June 23, 2017.

49 Ibid. Officers and members of the Coast Guard are authorized to enforce Chapter 551 of Title 46.

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House-Passed H.R. 6395

Senate-Passed S. 4049

P.L. 116-283

Sec. 541 would create an

attorney-client evidentiary privilege

for a special victim counsel and

client.

No similar provision

Not adopted

Sec. 550 would establish a pilot

program on prosecution of special

victim offenses committed by

attendees of military service

academies.

No similar provision

Not adopted

Criminal Investigations

Sec. 537 would require DOD to

collect and maintain data on all

types of dissident and protest

investigations that are referred for

disposition.

No similar provision

Sec. 554 adopts the House

provision by amalgamating it with

House Section 573 (See D&I

section above).

Sec. 540F would require DOD to

enter judicial proceeding data into

the National Instant Criminal

Background Check System within

three days of the proceeding’s

completion.

No similar provision

Sec. 544 adopts the House

provision with a Senate amendment

that defines the term judicial

proceeding.

Sec. 542 would provide a

mechanism for military judges and

magistrates to issue military court

protective orders that could be

enforced by civilian authorities.

No similar provision

Not adopted

No similar provision

Sec. 586 would make the standard

of review for expunging or

correcting personally identifying

information in the Department of

Defense Central Index of

Investigations (DCII) less restrictive.

Sec. 545 adopts the Senate

provision with establishment and

implementation, and an

accompanying report, required by

October 1, 2021.

Discussion. Successive NDAAs have required a wide range of reforms for administrative and

military justice matters. These reforms tend to focus on sex-related offenses and protecting

military family members, but targeting violent extremism is an additional area of congressional

interest.

Military Justice. The House bill (Section 531) would have created a UCMJ punitive article that

criminalizes violent extremism, but Congress did not adopt it. However, the committee conferees

commented that they believed a UCMJ punitive article to prohibit such conduct may be

appropriate to deter and prosecute such servicemembers.

The House (Section 532) and Senate (Section 533) bills amend Article 940a of the UCMJ to

require the preservation of court-martial records. Section 543 of the final enacted bill amends 10

U.S.C. §940a to require the Secretary of Defense to establish agency-wide uniform standards and

criteria for preserving special and general court-martial records, regardless of outcome, for not

less than 15 years.

The House (Section 540K) and Senate (Section 531) bills amends Article 6 of the UCMJ to

provide victims notice of certain court-martial matters. Section 541 of the final enacted bill

amends 10 U.S.C. §806b to require victims to receive reasonable, accurate, and timely notice of a

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post-trial motion, filing, or hearing that may address the finding or sentence of a court-martial

with respect to the accused, unseal privileged or private information of the victim, or result in the

release of the accused.

The House (Section 540J) bill amends Article 66 of the UCMJ to require certain qualifications for

appellate judges and to limit when a CCA may determine that a court-martial judgment is

incorrect in fact. The Senate bill would have amended the provision to require a CAAF review of

any CCA decision that a judgment is incorrect in fact. Section 542 of the final enacted bill

amended 10 U.S.C. §866 to limit CCA review to matters of law, unless the accused meets the

requirements for requesting a factual sufficiency review. Additionally, under the amendment any

commissioned officer or civilian assigned as an appellate military judge to a CCA shall have not

fewer than 12 years of experience in the practice of law before such assignment. Section 542 also

amended 10 U.S.C. §867 to require the CAAF to review any decision by a CCA finding that a

court-martial judgment is incorrect in fact, and it must annually provide a report that includes an

analysis of such decisions.

The House bill (Section 541) would have amended 10 U.S.C. §1044e to define providing legal

advice by a Special Victims’ Counsel (SVC) to the victim as the relationship between an attorney

and a client, but the final enacted bill did not adopt this provision. The committee conferees noted

their view that the relationship between a Special Victims’ Counsel and an alleged victim in the

provision of legal advice and assistance is that of an attorney and a client and is afforded the same

privilege as every other attorney-client relationship.

Criminal Investigations. The House bill (Section 537) requires the Secretary of Defense to

develop and implement a process to track criminal and administrative investigations, and their

findings and disposition, with respect to servicemember conduct that is prohibited under DOD

Instruction 1325.06 (Handling Dissident and Protest Activities Among Members of the Armed

Forces). This section also requires the Secretary to submit a report on the implemented process to

the HASC and SASC not later than December 1 of each year, beginning after the date of the

enactment of the provision. Congress amalgamated this requirement with a similar provision

related to diversity and inclusion and adopted it as part of Section 554 of the FY2021 NDAA.

This section also establishes a new deputy inspector general position in the DOD Office of the

Inspector General with responsibility for these two areas of oversight (Inspector General

Oversight of Diversity and Inclusion in Department of Defense; Supremacist, Extremist, or

Criminal Gang Activity in the Armed Forces). Section 554 also establishes specific reporting

requirements for diversity and inclusion in DOD and supremacist, extremist, or criminal gang

activity in the armed forces.

The House bill (Section 540F) requires DOD to submit to the National Instant Criminal

Background Check System information that would disqualify the accused in a UCMJ judicial

proceeding related to domestic violence from possessing or receiving a firearm. The final enacted

bill adopts this requirement and adds a provision that defines the term ‘judicial proceeding’ as a

hearing (1) of which the person received actual notice and (2) at which the person had an

opportunity to participate with counsel.

The House bill (Section 542) would have authorized military magistrates and military judges to

issue a Military Court Protective Order. The order would have been enforceable by civilian courts

and law enforcement officers. Such orders are meant to protect a victim of an alleged sex or

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FY2021 National Defense Authorization Act: Selected Issues

domestic violence offense, or a family member or associate of the victim, from a person subject

to the UCMJ. Congress did not adopt this provision.50

The Senate bill (Section 586) addresses the Defense Central Index of Investigations (DCII) title

and index correction or expungement process.51 Section 585 of the final enacted bill adopts this

provision which changes the current standard of review to allow greater probability that a titled

and indexed servicemember who was never criminally prosecuted or administratively disciplined

for the titled offense could have personally identifying information in the DCII expunged or

corrected. The provision also requires that not later than October 1, 2021, the Secretary of

Defense shall submit to the HASC and SASC a report on the actions taken under Section 545,

including a comprehensive description of the policy and process developed and implemented to

carry out the section’s requirements.

References: See CRS Insight IN11484, Analysis of Military Court Protective Order Provision in

H.R. 6395, by Alan Ott; CRS Report R46503, Military Courts-Martial Under the Military Justice

Act of 2016, by Jennifer K. Elsea and Jonathan M. Gaffney; and CRS Report R45970, Gun

Control: National Instant Criminal Background Check System (NICS) Operations and Related

Legislation, by William J. Krouse.

Points of Contact: Alan Ott and Kristy N. Kamarck (Sex-Related Offenses).

Military Personnel Programs

The HASC and SASC have jurisdiction over the broad area of DOD policy and programs related

to military personnel that are addressed in the FY2021 NDAA. This area includes matters

associated with military families, such as DOD schools and DOD assistance programs that focus

on military family members.52

Military Awards, Honors, and Decorations

Background. The DOD awards and decorations program recognizes with personal military

decorations servicemembers who perform qualifying acts of valor, non-combat heroism, or

meritorious service or achievement. The program also recognizes with related DOD-wide service

medals qualifying participation in a military campaign or expedition, or other significant military

operation. No such award or decoration may be presented to an individual whose subsequent

service was not honorable.

Military Awards, Honors, and Decorations Sectional Analysis

House-Passed H.R. 6395

Senate-Passed S. 4049

P.L. 116-283

Medal of Honor (MOH)

50 For more analysis, see CRS Insight IN11484, Analysis of Military Court Protective Order Provision in H.R. 6395, by

Alan Ott.

51 Department of Defense, Instruction 5505.07, Titling and Indexing In Criminal Investigations, February 28, 2018.

52 U.S. Senate, Document 113-18, Standing Rules of the Senate, January 24, 2013, p. 20; U.S. House of

Representatives, Rules of the House of Representatives, January 11, 2019, p. 6; RCP 116-25, Rules Adopted by the

Committees of the House of Representatives of the United States, 116th Congress, 2019-2020, p. 37.

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House-Passed H.R. 6395

Sec. 1778 would extend the time

from five to seven years to review

World War I valor awards for

certain veterans for a possible

upgrade to the MOH.

Senate-Passed S. 4049

No similar provision

P.L. 116-283

Sec. 561 extends the time from

five to six years to review World

War I valor awards for certain

veterans for a possible upgrade to

the MOH.

Service Medals

No similar provision

Sec. 562 authorizes the President

to award certain medals: (a) DSC

to Ramiro F. Olivo; (b) the MOH to

Ralph Puckett, Jr.; (c) MOH to

Dwight M. Birdwell; (d) MOH to

Alwyn C. Cashe; (e) MOH to Earl

D. Plumlee.

Sec. 581 would require the

Secretary of Defense to establish

the Atomic Veterans Service Medal.

No similar provision

Sec. 563 requires a feasibility study

on the establishment of service

medal for radiation-exposed

veterans.

Sec. 583 would allow for eligible

veterans of Operation End Sweep

to be awarded the Vietnam Service

Medal.

No similar provision

Not adopted

Honors

No similar provision

Sec. 552 would authorize the

Secretary of Defense to make

honorary promotions including

posthumous promotion of a former

member or retired member of the

Armed Forces.

Sec. 523 authorizes the honorary

promotion whether or not

posthumous, of a former member

or retired member of the Armed

Forces.

Eligibility and Presentation

No similar provision

Sec. 551 would require the award

or presentation of decorations

favorably recommended following

determination on the merits of

proposals for decorations not

previously submitted in a timely

fashion.

Not adopted

Sec. 525 would require the

Secretaries of Defense and

Veterans Affairs to prepare

guidelines with respect to veterans’

benefits under Title 38, U.S. Code,

No similar provision

Not adopted

Discussion.

Medal of Honor. 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. 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 MOH 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

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1990s for World War II records. During World War II, Black units remained segregated and their

units’ and individuals' valorous actions, along with others, may be unacknowledged or

insufficiently acknowledged. Subsequent record reviews of Jewish, Hispanic, Asian, and Pacific

Islander servicemembers’ records from World War II, Korea and Vietnam53 resulted in the award

of 24 MOHs in 2014.54

Section 584 of the FY2020 NDAA (P.L. 116-92) requires the review of military records of certain

Asian, Jewish, Hispanic, Native American, and African American war veterans from World War I

who were recommended for the MOH or were the recipients of the Distinguished Service Cross,

Navy Cross, or French Croix de Guerre with Palm. Only four soldiers from any of the above

groups, one Hispanic (Private David Barkley Cantu) and three Jewish veterans (First Sergeant

Sydney Gumpertz, First Sergeant Benjamin Kaufman, and Sergeant William Sawelson), were

awarded Medals of Honor at the conclusion of World War I. In April 1991, President George

H.W. Bush awarded the MOH posthumously to Corporal Freddie Stowers, the first Black

recipient from World War I, after the Army's review of his military records. Some critics maintain

that other acts of heroism worthy of the highest military honor may have been overlooked or

downgraded due to racism.

Section 561 of the FY2021 NDAA extends the period of review for certain medals from World

War I by one year amending section 584(f) of the FY2020 NDAA. Section 1778 of the Housepassed version would have amended Section 584(f) of the NDAA for FY2020 (P.L. 116-92) by

extending by two years the period of review for valor medals from World War I that may be

upgraded to the MOH. This would have expanded the time available for veterans to seek review

and allowed more time to collect evidence for a review. The Senate-version has no similar

provision.

Section 562 of the FY2021 NDAA authorizes the President to make certain awards,

notwithstanding the time limitations specified in Section 7274 of Title 10, United States Code.

Section 562 bestows: (a) the Army Distinguished Service Cross (DSC) to Ramiro F. Olivo for

acts of valor during the Vietnam War; (b) the MOH to Ralph Puckett, Jr. for acts of valor during

the Korean War; (c) the MOH to Dwight M. Birdwell for acts of valor during the Vietnam War;

(d) the MOH to Alwyn C. Cashe for acts of valor during Operation Iraqi Freedom; and (e) MOH

to Earl D. Plumlee for acts for valor during Operation Enduring Freedom.

Service Medals. Section 581 of the House-passed version would have required the Secretary to

Defense to design and produce a new military service medal known as the ‘‘Atomic Veterans

Service Medal’’ to honor retired and former servicemembers who are radiation-exposed veterans

as defined in Section 1112(c)(3) of Title 38, U.S. Code. This provision would have recognized the

veterans who witnessed the Trinity detonation in New Mexico55 and the more than 225,000 who

participated in later nuclear development and testing.56 The Senate-passed version had no similar

provision. The FY2021 NDAA, in Section 563, requires the Secretary of Defense to conduct a

feasibility study on establishing a service medal for award to radiation-exposed veterans as

53 The NDAA for FY2002 (P.L. 107-107, §552) called for a review of Jewish and Hispanic veteran war records from

WWII, the Korean War, and the Vietnam War to ensure those deserving the Medal of Honor were not denied because

of prejudice. During the review, records of several soldiers of neither Jewish faith nor Hispanic descent were also found

to meet criteria worthy of the Medal of Honor. The 2002 act was amended to allow these soldiers to be honored with

the upgrade. As a result of the review, 24 recipients were honored in 2014.

54 Army, “Valor 24 Recipients,” March 18, 2014, at https://www.army.mil/medalofhonor/valor24/.

55 The White House, “Presidential Message on the 75th Anniversary of the Trinity Nuclear Test,” July 16, 2020.

56 Patricia Kime, “Lawmakers Want Medals, Not Certificates, to Honor Veterans Involved in Nuclear Testing,”

Militray.com, July 16, 2020, at https://www.military.com/daily-news/2020/07/16/lawmakers-want-medals-notcertificates-honor-veterans-involved-nuclear-testing.html.

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defined in Section 1112 of Title 38, 24 United States Code. This provision requires the Secretary

of Defense to hold at least one meeting with representatives of organizations that advocate for

radiation-exposed veterans (including leadership of the National Association of Atomic Veterans,

Inc.) to discuss the study and to work on steps towards a mutually agreeable and timely

recognition of these radiation-exposed veterans.

Section 583 of the House-passed version would have allowed veterans who participated in

Operation End Sweep to apply for and receive the Vietnam Service Medal. Operation End Sweep

was the mine sweep of Haiphong Harbor, Vietnam, during the conflict’s ceasefire. On January 27,

1973, U.S. and North Vietnamese officials signed a protocol to the Paris agreement that called for

the United States to neutralize the mines that the Navy had dropped in North Vietnam's coastal

and inland waterways.57 The operation to retrieve or destroy the mines found in the harbor began

on February 6, 1973. It ended on June 17, 1973.58 The Senate-passed version had no similar

provision and the FY2021 NDAA did not adopt the House provision.

Section 551 of the Senate-passed version would have required the Secretary of Defense to submit

a report on the regulations and procedures for awarding medals or other commendations to

handlers of military working dogs (MWDs) as required by Section 582 of the FY2019 NDAA

(P.L. 115-232). The report would have been due no later than 90 days after enactment of this Act.

The House-passed version had no similar provision and the Senate receded during conference.

The FY2021 NDAA instead directs the Secretary of Defense to provide a briefing, not later than

90 days after the date of the enactment of this Act, to the Committees on Armed Services of the

House and Senate on the regulations and procedures to award medals or other commendations to

handlers of MWDs.

Honors. Section 552 of the Senate-passed version would have amended Chapter 80 of Title 10,

U.S. Code, by authorizing the Secretary of Defense to make honorary promotions, including

posthumous promotion of a former member or retired member of the Armed Forces, to any grade

not exceeding the grade of major general or rear admiral (upper half). The Secretary of Defense

would have been required to notify the Armed Services Committees of the House and Senate at

least 60 days prior to making an honorary promotion. This section would also have amended

Section 1563 of Title 10, U.S. Code, requiring that all promotions made using this authority

would be honorary with no effect on pay, retired pay, or other benefits. The House-passed version

had no similar provision. The FY2021 NDAA includes a similar provision in Section 523 that

amends Section 1563 of Title 10, United States Code, to require that all promotions made using

this authority be honorary, whether or not posthumous, with no effect on pay, retired pay, or other

benefits. The Secretary of Defense is required to notify the Armed Services Committees of the

House and Senate and the requesting Member of Congress, if applicable, of such a decision at

least 60 days prior to making an honorary promotion, including a detailed rationale for the

determination.

Eligibility and Presentation. Section 525 of the House-passed version would have amended

Section 528 of the FY2020 NDAA to require the Secretary of Defense to consult with the

Secretary of Veterans Affairs in preparing guidelines with respect to veterans’ benefits under Title

57 Edward J. Marolda, “U.S. Mining and Mine Clearance in North Vietnam,” U.S. Naval History and Heritage

Command, June 15, 2020, at https://www.history.navy.mil/research/library/online-reading-room/title-listalphabetically/u/u-s-mining-and-mine-clearance-in-north-vietnam.html.

58 U.S. Naval Institute Archives, “February 6, 1973: Navy Task Force 78 Begins Operation End Sweep,” Naval History

Blog, posted on February 7, 2013, at https://www.navalhistory.org/2013/02/07/february-6-1973-navy-task-force-78begins-operation-end-sweep,

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38, U.S. Code, for which eligibility determination depends on the use of DOD service records.

The Senate-passed version had no similar provision. The House-passed version was not adopted.

Section 551 of the Senate-passed version would have authorized a Secretary of a military

department to present an award or decoration, following the favorable review of a request by a

Member of Congress, after a 60-day period for congressional review. This provision would have

amended Section 1130 of Title 10, U.S. Code, and eliminated the current requirement for

legislation to waive the statute of limitation for award of a medal or decoration. According to the

Congressional Budget Office (CBO), enacting Section 551 would have resulted in provision of

awards that would not occur under current law, like the MOH that requires legislation for awards

more than five years after the date of the act of valor.59 CBO estimates that an additional five

living individuals would have received the Medal of Honor over the 2021-2030 period under

Section 551. CBO estimates that associated payments for these five monthly pensions would have

increased direct spending by less than $500,000 in each year, and by $3 million over the 20212030 period.60 The House-passed version had no similar provision. The FY2021 NDAA did not

adopt the Senate provision. Instead the conferees noted in their Joint Explanatory Statement the

importance of congressional oversight of the process of authorizing time limitation waivers; and

especially any waiver for potential Medals of Honor be addressed by Congress in the NDAA.61

The conferees also directed the Secretary of Defense to brief the Armed Services Committees no

later than March 31, 2021, on mechanisms by which the process could be made more effective.62

References: See 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; and CRS Report 95-519, Medal of Honor: History and Issues,

by Barbara Salazar Torreon.

CRS Point of Contact: Barbara Salazar Torreon.

Military Family Matters

Background. There are approximately 2.1 million members of the Armed Forces across the

active and reserve components with an additional 2.6 million dependents (i.e., family members,

typically spouses and/or children).63 The military provides a number of quality of life programs

and services for military families as part of a servicemember's total compensation and benefits

package. Programs include family-life, career, and financial counseling; childcare services and

support; and other Morale, Welfare, and Recreation (MWR) activities. The general motivation for

providing these benefits is to improve the recruitment, retention, and readiness of military

servicemembers.

Military Family Matters Sectional Analysis

House-Passed H.R. 6395

Senate-Passed S. 4049

P.L. 116-283

Family Readiness

59 CBO, “S. 4049, the National Defense Authorization Act for Fiscal Year 2021,” as reported by the Senate Committee

on Armed Services on June 23, 2020, updated July 1, 2020, p. 6 at https://www.cbo.gov/system/files/2020-07/56462S4049.pdf.

60 Ibid.

61 Joint Explanatory Statement of the Committee of Conference, PDF p. 152, December 12, 2020, at

https://docs.house.gov/billsthisweek/20201207/116hrpt617-JointExplanatoryStatement.pdf.

62 Ibid.

63 DOD, Demographics: Profile of the Military Community, 2018, pp. 127 and 149.

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House-Passed H.R. 6395

Senate-Passed S. 4049

Sec. 561 would require DOD to

develop family readiness:

definitions, a communication

strategy, and report to Congress.

No similar provision

P.L. 116-283

Sec. 581 adopts the House provision

and requires DOD to act on

recommendations from the National

Academies of Science, Engineering and

Medicine.

Military Spouse Education and Employment

Sec. 564 would expand eligibility

for financial assistance under the My

Career Advancement Account

(MyCAA) program to continuing

education courses and national

testing (including College Level

Examination Program tests)

Sec. 577 is a similar provision to

House Section 564 that also

includes financial assistance for the

Subject Standardized Tests of the

Defense Activity for NonTraditional Education Support

Division of the Department of

Defense).’’

Sec. 615 would expand

reimbursable State licensure and

certification costs for a military

spouse arising from relocation

under 37 U.S.C. §476.

Sec. 574 would clarify eligibility

requirements for reimbursement of

military spouse licensing costs

Sec. 622 adopts the Senate provision.

pursuant to a permanent change of

station and would shift the

authority to 37 U.S.C. §453.

Sec. 570D would require DOD to

evaluate partner criteria for the

Military Spouse Employment

Program (MSEP).

Sec. 625 would require a DOD

study on the feasibility of thrift

savings plan (TSP) contributions by

military spouses.

Sec. 586 adopts the Senate provision.

No similar provision

Sec 587 adopts the House provision

and requires an additional report

within one year of implementation of

any program changes.

No similar provision

Sec. 628 requires a DOD study on

the feasibility of thrift savings plan

(TSP) contributions by military spouses

to the account of the servicemember.

Military Childcare

Sec. 563 would expand the

authority for DOD to provide

financial assistance to certain inhome childcare providers.

Sec. 621 would expand the fee

assistance authority to provide for

survivors of servicemembers who

die in the line of duty.

Sec. 623 would require DOD to

review the amount of the fee

assistance subsidy for childcare

services.

Sec. 624 would provide priority

for certain military family housing to

servicemembers whose spouse

agrees to provide family home day

care services.

Congressional Research Service

No similar provision

Sec. 589 requires DOD to establish a

pilot program for providing financial

assistance to certain in-home childcare

providers.

No similar provision

Sec. 629 requires a GAO report on

the implications of expanding the fee

assistance program to survivors of

servicemembers who die in the line of

duty or active duty for training.

No similar provision

Sec. 626 requires the Secretary of

Defense to develop and implement a

method to calculate fee assistance for

childcare and youth program service

providers, based on local variations in

cost for childcare services.

Sec. 576 would require several

initiatives with respect to military

childcare programs to include,

center fee matters;

fee assistance program;

Sec. 627 provides priority for certain

military family housing to

servicemembers whose spouse agrees

to provide family home day care

services for at least one year.

25

FY2021 National Defense Authorization Act: Selected Issues

House-Passed H.R. 6395

Sec. 565 would require a feasibility

determination for providing 24hour childcare to DOD

servicemembers and employees

who work on rotating shifts.

No similar provision

Division H, Title II, Subtitle C,

§§9301 - 9309—Access to

Childcare for Coast Guard Families

Senate-Passed S. 4049

P.L. 116-283

increasing childcare workforce;

and

assessment of capacity at highdemand installations

Sec. 585 adopts the Senate provision

with some amendments to allow for

child development center discounts for

families with 2 or more children and to

require reports on high-demand

installations.

Sec. 1067 is a similar provision to

House Sec. 565.

Sec. 588 requires the Secretary of

Defense to provide childcare to

servicemembers or DOD civilian

employees while working a rotating

shift at a military installation, if

determined feasible after completing a

study and reporting to Armed Services

committees.

Sec. 571 would delineate

responsibility for allocation of

certain funds for military child

development programs.

Sec. 584 adopts the Senate provision.

No similar provision

Secs. 8231 – 8239 adopts these

provisions with some amendments.

Parental Leave

Sec. 566 would allow for

continuation of paid parental leave

upon death of a child.

No similar provision

Sec. 606 would provide

compensation and credit for retired

pay purposes for maternity leave

taken by members of the reserve

components.

Sec. 603 is an identical provision

to House Sec. 606.

Not adopted

Sec. 602 adopts this provision.

Discussion. The following discussion comprises four topic areas.

Family readiness.

Military spouse education and employment.

Military childcare programs.

Military parental leave.

Family Readiness. In 2019, two reports were published that issued recommendations for

improving the welfare of military families; the DOD Inspector General report, Fiscal Year 2020

Top DOD Management Challenges; and the National Academies of Science, Engineering and

Medicine (NASEM) report, Strengthening the Military Family Readiness System for a Changing

American Society.64 Section 561 of the House bill requires DOD to develop a concept of family

64 DODIG, Fiscal Year 2020 Top DOD Management Challenges, Challenge 3: Ensuring the Welfare and Well-Being

of Military Servicemembers, October 15, 2019, at https://media.defense.gov/2019/Nov/04/2002205654/-1/1/1/DEPARTMENT%20OF%20DEFENSE%20OFFICE%20OF%20INSPECTOR%20GENERAL%20FISCAL%20Y

EAR%202020%20TOP%20MANAGEMENT%20CHALLENGES.PDF. National Academies of Sciences,

Engineering, and Medicine, Strengthening the Military Family Readiness System for a Changing American Society,

2019, at https://www.nap.edu/catalog/25380/strengthening-the-military-family-readiness-system-for-a-changingamerican-society.

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readiness including definitions, a communication strategy, and a report to Congress on the

feasibility of implementing other recommendations made by the published reports. Section 581 of

the final enacted bill adopts the House provision and also requires DOD to act on the NASEM’s

recommendations.

Military Spouse Education and Employment. Recognizing that the transient and unpredictable

nature of a career in military service can impose unique burdens on military spouses, Congress

has authorized several initiatives to provide support for military spouses’ education, employment,

and career development. One of these programs is DOD's My Career Advancement Account

(MyCAA) Scholarship Program. MyCAA provides up to $4,000 in non-taxable scholarship funds

to eligible military spouses for licensure and certification programs.65 The House and Senate bills

for the FY2021 NDAA have similar provisions (Sections 564 and 577 respectively) that allow

military spouses to use these funds for continuing education courses or certain national tests for

credit towards an eligible degree program. Section 586 of the final enacted bill adopts the Senate

provision.

Varied interstate licensing requirements may impose additional financial burdens on working

spouses of military servicemembers who are typically faced with military permanent change of

station (PCS) moves every two to three years. The FY2018 NDAA first authorized the

reimbursement of qualified relicensing costs for military spouses as part of travel and

transportation allowances associated with a PCS move from one state to another.66 In the FY2020

NDAA, Congress raised the maximum reimbursement to $1,000, required the Secretary of

Defense to analyze whether that amount is sufficient to cover average relicensing costs, and

extended the sunset date for the authorization from December 31, 2021, to December 31, 2024.67

Section 615 of the House bill would have expanded qualified relicensing costs to include the

costs of continuing education courses. Section 574 of the Senate bill expands the FY2018

authority to allow for reimbursement in additional cases where a PCS move or permanent change

of assignment occurs “between duty stations located in separate jurisdictions with unique

licensing or certification requirements and authorities.” Section 622 of the final enacted bill

adopts the Senate provision.

In the FY2002 NDAA, Congress directed DOD to partner with the United States Chamber of

Commerce and with private-sector employers to enhance private employment opportunities for

military spouses.68 The Military Spouse Employment Partnership (MSEP) is one such DOD effort

to build these partnerships.69 The centerpiece of MSEP is a web-based job search and recruitment

platform. Participating employers are subject to a screening process and must commit to certain

actions to support military spouses. Section 570D of the House bill would require DOD to review

the criteria for participation with an eye on expanding the number of participating local small

businesses, companies that employ telework, software and coding companies, and educational

institutions. This provision would also require a report to Congress on certain metrics following

the implementation of program changes. Section 587 of the final enacted bill adopts the House

65 Funds are distributed to the qualified institution providing the education or training. Eligible military spouses are

those whose servicemember spouse is a junior officer (O-1 and O-2), warrant officer (W-1 and W-2), or enlisted

servicemember (E-1 through E-9).

66 P.L. 115-91, §556.

67 P.L. 116-92, §577.

68 P.L. 107-107, §571.

69 For more on MSEP, see https://msepjobs.militaryonesource.mil/msep/.

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provision and requires an additional report to Congress within one year of implementation of any

program changes.

Finally, due to frequent PCS moves, military spouses may not spend enough time with a single

employer to qualify for vesting in employer contributions to retirement savings plans (e.g., 401k).

Section 625 of the House bill would have required a study to determine the feasibility of allowing

military spouse contributions or transfers to the Thrift Savings Plan (TSP). Military

servicemembers and federal employees are authorized to contribute to the TSP, and the

government provides matching contributions for those who are eligible.70 A provision in the final

enacted bill (Section 628) requires a DOD study on the feasibility of TSP contributions by

military spouses to the account of the servicemember.

Military Childcare. 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, at an annual cost of over $1 billion.

Subsidized care is provided at child development centers (CDCs) and family homes on military

installations. Eligible families receive financial assistance for qualified care centers offinstallation under the fee assistance program.71

Section 563 of the House bill would have expanded the fee assistance authority and allow DOD

to provide financial assistance to military families for certain in-home childcare providers

including nannies, babysitters, and au pairs. The final enacted bill (Section 589) requires DOD to

establish a pilot program for providing financial assistance to certain in-home childcare providers.

In the FY2020 NDAA, Congress extended eligibility for fee assistance to survivors of

servicemembers who die in combat-related incidents in the line of duty.72 Section 621 of the

House bill would have removed the requirement that the servicemember’s line-of-duty death was

combat-related. The final enacted bill (Section 629) does not authorize this change, but rather

requires a GAO report to examine the issue.

Section 623 of the House bill would have required DOD to review the amount of the fee

assistance subsidy for childcare services, taking into account local cost of living and childcare

costs, waitlists at installation CDCs, and the availability of childcare providers on the base and in

the civilian community. Section 626 of the final enacted bill requires the Secretary of Defense to

develop and implement a method to calculate fee assistance for childcare and youth program

service providers, based on local variations in cost for childcare services.

DOD also subsidizes certified home-based childcare services, called Family Care Centers

(FCCs), for children between the ages of 4 weeks through 12 years on military installations.

Section 624 of the House bill would have given priority for installation family housing to a

servicemember whose spouse is willing to establish an FCC. Section 576 of the Senate bill would

also have required DOD to explore incentives for military spouses to establish FCCs in their

homes. Section 627 of the final enacted bill adopts the House provision allowing Service

Secretaries to give priority for military family housing to spouses who agree to provide family

home day care services for at least one year.

70 See CRS Report RL34751, Military Retirement: Background and Recent Developments, by Kristy N. Kamarck and

CRS Report RL30387, Federal Employees’ Retirement System: The Role of the Thrift Savings Plan, by Katelin P.

Isaacs.

71 The fee assistance program is authorized under 10 U.S.C. §1798.

72 P.L. 116-92, §624.

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In February 2020, DOD announced changes to the priority and waitlist system for installationbased childcare services to provide a higher priority for military families over DOD civilians.73

Section 576 of the Senate bill would have also required liberal use of hardship waivers for CDC

fees and family discounts for additional children. It would have sought to standardize fee

assistance programs across the military departments and expressed a preference for the Army fee

assistance program model.74 In terms of childcare employees, Senate Section 576 would have

authorized the Service Secretaries to provide certain incentives to encourage recruitment and

retention of the childcare workforce (e.g., education benefits and wellness/fitness programs).

Finally, this provision would have required an assessment of installations that exhibit an “extreme

imbalance between demand for and availability of childcare” with recommendations to Congress

on ways to address these imbalances. Section 585 of the final enacted bill adopts some elements

of Section 576 of the Senate bill by amending 10 U.S.C. §1793 to authorize DOD to provide

discounts to families with two or more children in CDC care. It also requires reports to Congress

on installations with an “extreme imbalance” between demand for childcare and availability.

While the conference did not adopt other elements of Senate Section 576, the report to

accompany the bill noted,

The conferees note that existing authorities allow for the liberal issuance of hardship

waivers regarding childcare fees and encourage the Department of Defense to continue

offering flexible childcare options for servicemembers and their families. Additionally, the

conferees strongly encourage the Department to utilize enhanced marketing and

recruitment techniques to hire qualified childcare employees, and provide competitive

benefits in order to retain them. 75

Some military positions require frequent shiftwork. At times this creates challenges for military

families in finding childcare services for irregular hours. Similar provisions in the House and

Senate bills require DOD to determine the feasibility of making 24-hour childcare available to

DOD servicemembers and employees who work on rotating shifts. The final enacted bill adopted

this provision under Section 588 and requires DOD to implement the policy if feasible.

Section 1791 of Title 10, United States Code, is the authority for using appropriated funds for

military childcare programs. Section 584 of the final enacted bill adopts Section 571 of the Senate

bill and amends this statute to give the Secretary of Defense the responsibility for allocating funds

and to prohibit delegation of this responsibility to the military services. The Senate Committee

report to accompany the bill states,

The committee remains concerned about the Department of Defense’s plans to transfer

funds to the military services to provide childcare fee assistance as part of the DefenseWide Review.76 The committee believes that military family childcare should remain

among the Department’s highest priorities and transferring resources to the military

services would degrade standardization of the program and hinder oversight capabilities of

the Office of the Secretary of Defense. 77

73 Secretary of Defense Memorandum, Policy Change Concerning Priorities for Department of Defense Child Care,

February 21, 2020, at https://media.defense.gov/2020/Mar/09/2002261354/-1/1/1/POLICY_CHANGE_CONCERNING_PRIORITIES_FOR_DEPARTMENT_OF_DEFENSE_CHILD_CARE_PR

OGRAMS.PDF.

74 See https://www.childcareaware.org/fee-assistancerespite/military-families/army/.

75 H.Rept. 116-617, pdf. p. 130.

76 DOD, FY2021 Defense Wide Review, January 2020.

77 S.Rept. 116-236, p. 207.

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FY2021 National Defense Authorization Act: Selected Issues

The final enacted bill adopts Division H, Title II, Subtitle C of the House Bill, which addresses

childcare issues for U.S. Coast Guard personnel and their families. Several provisions under this

section seek to provide parity with DOD childcare programs, through surveys, studies, and pilot

programs.

Military Parental Leave. The FY2017 NDAA authorized up to 12 weeks of parental leave

(including up to six weeks convalescent leave) for the primary caregiver in connection with the

birth of a child.78 It also authorized six weeks of leave for a primary caregiver in the case of an

adoption of a child. Under this legislation, secondary caregivers can take up to 21 days of leave in

connection with a birth or adoption. Section 566 of the House bill would have allowed the

member to take the full parental leave even if the child dies prior to the end of the previously

approved leave period. This provision was not adopted; however, the committee report noted that,

Commanders are entrusted with the responsibility of taking care of their troops, which

would include ensuring they have the ability to take leave to deal with the pain caused by

the death of a child. If it becomes clear that commanders are not performing as expected,

the conferees remain open to considering future legislation in this area.

Sections 606 of the House bill and 603 of the Senate bill are identical provisions that allow

military reservists on maternity leave to continue to receive credit towards military retirement.

This provision was adopted in the final enacted bill.

References: See CRS Report R46498, Military Spouse Employment, by Kristy N. Kamarck,

Barbara L. Schwemle, and Sofia Plagakis; CRS Report R45288, Military Child Development

Program: Background and Issues, by Kristy N. Kamarck; and CRS Report RL34751, Military

Retirement: Background and Recent Developments, by Kristy N. Kamarck.

Point of Contact: Kristy N. Kamarck.

COVID-19 Personnel Program Provisions

Background. Throughout 2020, DOD responded to many requests for Defense Support of

Civilian Authorities (DSCA) as part of its role in the federal response to COVID-19. Several

requirements for new or modified personnel programs or authorities arose in relation to the

military units and personnel providing this support. Soldier and family personnel programs and

benefits requirements were also affected by COVID-19 support activities, to include COVID-19

testing and treatment, education services for military dependents, requirements for special pays,

and delayed entitlements or other benefits.79

COVID-19 Personnel Program Provisions Sectional Analysis

House-Passed H.R. 6395

Senate-Passed S. 4049

P.L. 116-283

Military Pay and Retirement

78 P.L. 114-328, §521; 10 U.S.C. §701. Convalescent leave is a type of medical leave that is typically approved by a

physician.

79 See Amy Bushatz, “Will Troops Continue to Receive Special Pays Amid the Pandemic? It Depends,” Military.com,

April 9, 2020, at https://www.military.com/daily-news/2020/04/09/will-troops-continue-receive-special-pays-amidpandemic-it-depends.html; and DOD, “Fact Sheet: COVID-19 Military Personnel, Pay, and Benefits Policy –

Supplement 1,” April 9, 2020, at

https://www.whs.mil/Portals/75/Coronavirus/DoD%20Military%20Pay%20%20Personnel%20Benefits%20FAQ_SUP

%201.pdf?ver=2020-04-09-134841-657.

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FY2021 National Defense Authorization Act: Selected Issues

House-Passed H.R. 6395

Senate-Passed S. 4049

No similar provision

Sec. 602 would direct the Service

Secretaries to issue hazardous duty

pay for members of the Armed

Forces performing in response to

the COVID-19 pandemic.

Not adopted

Sec. 621 is similar to House Sec.

514.

Sec. 516 adopts Senate Sec. 621

with an amendment that amends

Sections 12732 and 12733 of Title

10, United States Code, to

authorize the Secretary of Defense,

or the Secretary of Homeland

Security with respect to the Coast

Guard, to provide points for

reserve retirement purposes if a

reserve servicemember is

prevented from participating in

required drills or training during the

emergency period beginning on

March 1, 2020, which coincides

with the COVID-19 pandemic. The

provision also requires the

Secretary of Defense to provide a

report to the Committees on

Armed Services of the Senate and

the House of Representatives on

the use of this authority.

Sec. 514 would grant constructive

credit towards retirements for a

member of the Reserve

Components who cannot complete

minimum annual training

requirements due to the COVID-19

pandemic.

P.L. 116-283

Other Personnel-Related Provisions

Sec. 519 would require the DOD

to submit a report to Congress on

how the Secretary of Defense

determined the authorization of

full-time National Guard duty in

response to the COVID-19

pandemic.

No similar provision

Sec. 519A adopts House Sec. 519

with a technical amendment.

Sec. 520B would require DOD to

provide quarantine housing for

National Guard members upon

completion of active service in

response to the COVID-19

pandemic.

No similar provision

Sec. 517 adopts House Sec. 520B

with an amendment that authorizes

the Secretary of Defense to provide

at least 14 days of housing for

members of the Reserve

Component ordered to active

service in response to the COVID19 national emergency.

Sec. 596 would direct the

Secretary of Defense to conduct a

study on financial hardships among

servicemembers during the

COVID-19 pandemic.

No similar provision

Sec. 597 adopts House Sec. 596

with a technical amendment.

Discussion. The selected provisions discussed below relate to COVID-19 specific military

personnel issues and programs. Selected provisions related to COVID-19 specific Defense Health

Care and Public Health issues and programs are discussed separately.

Military Pay and Retirement. Section 602 of the Senate bill would have directed Service

Secretaries to issue hazardous duty pay to certain servicemembers performing duty in response to

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FY2021 National Defense Authorization Act: Selected Issues

the COVID-19 pandemic between January 1, 2020, and December 31, 2020. The provision would

have required DOD to issue regulations specifying the eligibility criteria for hazardous duty pay,

which would have been no less than $150 per month. In addition, the Senate would have

expressed its sense that DOD should provide hazardous duty pay to certain health care providers

and support staff who treat COVID-19 patients. The provision was not adopted.

House Section 514 would have authorized the Secretary of Defense to approve constructive credit

for certain Reserve servicemembers who were not able to complete minimum annual training

requirements due to cancellation or other extenuating circumstance resulting from the COVID-19

pandemic. The provision would have required DOD to submit a report to Congress, no later than

one year after the COVID-19 national emergency ends, that includes the number of

servicemembers granted constructive credit and recommendations on whether such authority

should be made permanent.80 Senate Section 621 would have amended 10 U.S.C. §§12732 and

12733 to authorize retirement points to reserve servicemembers if they were prevented from

performing inactive duty training (i.e., drill periods) due to certain travel or duty restrictions

during a “covered emergency period.”81 The final enacted bill contains Section 516, which

requires the military services to credit the following to eligible servicemembers, not to exceed 35

points in a one-year period:

one point for each day of active service; or

one point for each drill or period of equivalent instruction.

Other Personnel-Related Provisions. Section 519 of the House bill requires DOD to submit a

report to the congressional defense committees, no later than 90 days after enactment, on how the

Secretary of Defense determined to authorize full-time National Guard duty to respond to the

COVID-19 pandemic. The report is to include: how many requests were received from states and

the outcomes (i.e., approved or denied), the length of time to adjudicate each request, a

description of cost considerations (if any), reasoning for denied requests, a description of any

process differences (compared with pre-COVID-19 requests), and recommendations to improve

the request process. Section 519A of the final enacted bill adopts this provision with a technical

amendment.

House Section 520B requires the Secretary of Defense to provide at least 14 days of quarantine

housing for National Guard personnel completing active service in response to the COVID-19

pandemic. The final enacted bill’s provision expands this eligibility to all members of the Reserve

Component.

House Section 596 was incorporated into the final enacted bill with a technical amendment as

Section 597. It directs DOD to conduct a study and submit a report to Congress, no later than 120

days after enactment, on financial hardships among servicemembers during the COVID-19

pandemic. The study is to review the financial impact to servicemembers relating to stop

movement orders; loss of spousal income, hazardous duty incentive pay, educational benefits, and

drill and exercise pay; cancelled deployments; and other financial stressors. In conducting the

study, the provision also requires DOD to consult with the Consumer Financial Protection Bureau

and Department of Homeland Security (with regard to the members of the Coast Guard).

References: See CRS Insight IN11273, COVID-19: The Basics of Domestic Defense Response,

coordinated by Michael J. Vassalotti; CRS In Focus IF10335, DOD Domestic School System:

80 The “COVID-19 national emergency” refers to the period in the President’s Proclamation on Declaring a National

Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, March 13, 2020.

81 The “covered emergency period” would begin on March 1, 2020, and end 60 days after the applicable travel or duty

restriction is lifted.

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Background and Issues, by Kristy N. Kamarck; and CRS Report RL33446, Military Pay: Key

Questions and Answers, by Lawrence Kapp and Barbara Salazar Torreon.

Points of Contact: Hibbah Kaileh, Kristy N. Kamarck, and Lawrence Kapp.

Maritime and Civilian Personnel

Besides its military personnel portfolio, HASC and SASC jurisdiction includes the policy and

programs for DOD civilian personnel and related authorities that are addressed in the FY2021

NDAA.82 Such jurisdiction also covers the national security aspects of maritime policy and

merchant marine personnel.83 Among other areas, the committees’ maritime oversight includes

the FY2021 NDAA provisions for the funding and operations of the U.S. Merchant Marine

Academy (USMMA) (a component of the Maritime Administration (MARAD), which is in the

Department of Transportation (DOT)).84 Such oversight extends to the Act’s provisions for the six

federally supported state maritime academies (SMAs) (See Table 4).

Merchant Mariners

Background. The USMMA at Kings Point, New York, is a federal service academy with an

approximate enrollment of 1,000 cadets and 40 preparatory school students.85 The cadets are also

midshipmen in the Navy Reserve.86 The Academy prepares students to be merchant marine

officers (licensed mariners) for maritime service and strategic sealift officers for military

service.87 Admission to USMMA is through a competitive process and congressional nomination

is required.88 Tuition and many other expenses are paid by the federal government, but unlike at

all other service academies, USMMA students are responsible for some attendance expenses.89

82 U.S. Senate, Document 113-18, Standing Rules of the Senate, January 24, 2013, p. 20.

83 U.S. House of Representatives, Rules of the House of Representatives, January 11, 2019, p. 6; RCP 116-25, Rules

Adopted by the Committees of the House of Representatives of the United States, 116th Congress, 2019-2020, p. 37.

Specific national security areas of maritime policy under HASC jurisdiction include cabotage, cargo preference,

financial assistance for the construction and operation of vessels, and maintenance of the U.S. shipbuilding and ship

repair industrial base.

84 The Merchant Marine Act of 1936 created the United States Maritime Commission (MARCOM) and among other

matters, required the establishment of a federal merchant marine officer training program. USMMA began operations

in January 1942 and was formally established in September 1943. The shore based officer training program at USMMA

evolved from the ship based U.S. Merchant Marine Cadet Corps program established in 1938. The United States

Maritime Service (USMS) administered both programs. MARCOM created USMS in 1938 as a uniformed service

responsible for federal merchant marine training programs. USMS continues in this role today, but now under the

control and direction of MARAD. Although USMS members still wear a nautical military uniform and have a

commissioned officer rank structure identical to Coast Guard officer rank, it is now part of the federal civil service and

is no longer defined as a uniformed service (See 46 U.S.C. §51701; 10 U.S.C. §101(a)(5)).

85 46 U.S.C. §§51301, 51303; Department of Transportation, Maritime Administration CFO Directive – 16, Version 4,

March 30, 2020, p. 5. The Academy is a four year college accredited by the Middle States Commission on Higher

Education and confers the degree of Bachelor of Science, see

https://nces.ed.gov/collegenavigator/?q=merchant+marine&s=all&id=197027#enrolmt.

86 46 U.S.C. §51311. USMMA cadets are required by law to apply for midshipman status in the Navy Reserve.

87 46 C.F.R. §310.52; U.S. Navy, Program Authorization 221, Reserve Component (RC) Designator 1665 (Strategic

Sealift Officer (SSO)) direct commission officer (DCO) program, June 2019.

88 46 U.S.C. §51302. Nomination and competitive appointment of cadets.

89 46 U.S.C. §51314. Limitation on charges and fees for attendance.

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USMMA cadets must meet certain requirements to graduate. These requirements include

successfully completing the school’s academic program, accumulating at least 360 days of seatime serving aboard sealift or merchant vessels, and passing the U.S. Coast Guard examination

for a merchant marine deck or engineer officer’s license.90 Academy graduates incur a federal

service obligation that is fulfilled by concurrent military reserve service for eight years and

merchant mariner licensure for six years. Alternatively, they can fulfill it by spending five years

serving on active duty in any uniformed service or working for the federal government in a

civilian maritime role.91

FY2020 NDAA Independent Study of USMMA92

The FY2020 NDAA requires the National Academy of Public Administration (NAPA) to conduct a comprehensive

assessment of USMMA systems, training, facilities, infrastructure, information technology, and stakeholder

engagement (the COVID-19 Pandemic has delayed the assessment). NAPA’s study is meant to identify needs and

opportunities for modernization to help USMMA keep pace with more modern campuses. NAPA is also required

to develop an action plan for USMMA with specific recommendations for systemic changes and improvements.

Admission to SMAs is governed by state and institutional policy. Students at SMAs are

responsible for all tuition and expenses, but if eligible, they can receive federal student aid or

scholarships that may be available at their institution. ROTC scholarships are not offered at

SMAs, but MARAD’s competitive Student Incentive Payment (SIP) program is an alternative

source of federal funding that may be available to eligible students. SIP participants at SMAs can

receive $8,000 of tuition assistance per year for a total of $32,000 over four years.93 Upon

graduation, SIP recipients incur the same service obligation as USMMA graduates, concurrent

military reserve service for eight years and merchant mariner licensure for six years.

The Strategic Sealift Midshipman Program (SSMP) is a Navy education and training program

conducted by the Department of Naval Science at USMMA and the SMAs.94 The SSMP’s

principal purpose is to qualify participants for service in the Navy’s Strategic Sealift Officer

Program (SSOP).95 All USMMA cadets participate in SSMP and participation in SSMP at SMAs

is mandatory for SIP recipients and elective for other students. Successful program participants

may receive a U.S. Navy Reserve officer commission as a strategic sealift officer (SSO) with the

rank of ensign. The Navy Reserve assigns SSOs to the Strategic Sealift Readiness Group (SSRG),

which is part of the Navy’s Individual Ready Reserve (IRR).

Table 4. Post-Secondary Maritime Institutions

Federal and State Academies

Institution

Location

Established

U.S. Merchant Marine Academy

Kings Point, New York

1942

State University of New York Maritime College

New York City (The Bronx), New York

1874

Massachusetts Maritime Academy

Buzzards Bay, Massachusetts

1891

90 U.S. Merchant Marine Academy, Course Catalog, 2019-2020, pp. 37-38.

91 46 U.S.C. §51306.

92 P.L. 116-92, §3513.

93 46 U.S.C. §51509.

94 U.S. Navy, NSTC M-1533.2C, United States Naval Reserve, Administration and Management Annex, Appendix R,

Strategic Sealift Midshipmen Program, CH-2, January 2019.

95 Department of the Navy, OPNAV Instruction 1534.lE, Strategic Sealift Officer Program, 1 Dec 2017.

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Institution

Location

Established

California State University Maritime Academy

Vallejo, California

1929

Maine Maritime Academy

Castine, Maine

1941

Texas A&M Maritime Academy

Galveston, Texas

1962

Great Lakes Maritime Academy

Traverse City, Michigan

1969

Source: See https://www.usmma.edu/; https://www.sunymaritime.edu/; https://www.maritime.edu/;

https://www.csum.edu/; https://mainemaritime.edu/; https://www.tamug.edu/corps/;

https://www.nmc.edu/maritime/.

The NDAA generally includes DOT funding authorizations for USMMA and SMAs. The FY2021

authorization amounts are compared to the FY2020 amounts in Table 5. For USMMA, the

FY2021 NDAA authorized $85,441,000. Approximately 93.5% of this authorization is for

operations and maintenance and 6.5% is available until expended for capital asset management.

The FY2021 NDAA authorized $50,780,000 for the six SMAs and their training ships.

Approximately 80% of this authorization is for several types of training ship expenses and the

remaining 20% is for SMAs operations and student programs.

Table 5. FY2020 and FY2021 MARAD Funding Authorizations

Education and Training Programs

FY 2020

NDAA

Program

FY 2021

NDAA

NDAA

Difference

U.S. Merchant Marine Academy

Academy Operations

77,944,000

79,941,000

1,997,000

Capital Asset Management

18,000,000

5,500,000

(12,500,000)

Subtotal

95,944,000

85,441,000

(10,503,000)

State Maritime Academies

SMAs Training Vessels Maintenance

30,080,000

30,500,000

420,000

SMAs Training Ship Sharing Offset

8,000,000

8,080,000

80,000

Academy Operations

6,000,000

6,000,000

0

Training Ship Fuel Assistance

3,800,000

3,800,000

0

Student Incentive Payment Program

2,400,000

2,400,000

0

Subtotal

50,280,000

50,780,000

500,000

Total

146,224,000

136,221,000

(10,003,000)

Source: P.L. 116-92, §3501; P.L. 116-283, §3501.

Maritime Personnel Sectional Analysis

House-Passed H.R. 6395

Sec. 3507 would establish the

Elijah E. Cummings Merchant

Mariner Career Training Loan

Program and authorize the

designation of certain training

establishments as a Maritime

Training Institution.

Congressional Research Service

Senate-Passed S. 4049

No similar provision

P.L. 116-283

Sec. 3508 adopts parts of the

House provision, but in lieu of a

program, requires a program study

and report.

35

FY2021 National Defense Authorization Act: Selected Issues

House-Passed H.R. 6395

Senate-Passed S. 4049

P.L. 116-283

Sec. 3510 would require vessel

operator beneficiaries of certain

national security programs to take

on at least two USMMA cadets per

vessel for their sea-time duty.

No similar provision

Sec. 3506 adopts the House

provision.

Sec. 3510A expresses a sense of

Congress that the USMMA

superintendent should be a

graduate of the Academy who

possesses certain qualifications.

No similar provision

Sec. 3503 adopts the sense of

Congress and adds the term

merchant marine and certain

merchant marine positions to the

qualifications for superintendent.

Sec. 3510B would require the

MARAD Administrator to publish

information online regarding the

status or employment of USMMA

graduates, as well as SIP program

participation and federal service

obligation information for graduates

of SMAs.

No similar provision

Sec. 3509 adopts the House

provision.

Discussion. It is the policy of the United States that its Navy and merchant marine work closely

together to promote the maximum integration of its sea power forces.96 The Secretary of

Transportation is required to provide education and training for the operation of the merchant

marine as a naval and military auxiliary in time of war or national emergency.97 The Secretary of

the Navy is required to ensure that naval officer training and naval science education programs

for the operation of merchant vessels as a naval and military auxiliary are available at the

USMMA and SMAs.98

The House bill (Section 3507) would have amended Title 46 of the U.S. Code by adding a new

section establishing the Elijah E. Cummings Merchant Mariner Career Training Loan Program in

DOT, but the final enacted bill did not adopt this provision. Instead, it directed MARAD to

develop a merchant mariner recruitment, training, and retention strategic plan and to produce a

study and report on financial assistance for training merchant mariners.

The House bill (Section 3510) was adopted by Section 3506 of the final enacted bill and amends

Title 46 of the U.S. Code to require certain vessel operators to carry USMMA cadets for their sea

duty. Pursuant to 46 U.S.C. §51307(b), as amended in the final enacted bill, operators of a vessel

participating in the maritime programs specified in Chapters 531, 532, and 534 of Title 46 of the

U.S. Code are required to carry two USMMA cadets, if available, on each program vessel.

Since its establishment in 1942, USMMA has had 13 superintendents. Less than half served in the

merchant marine and less than a third graduated from the Academy (See Table 6). Section 3503

of the FY2021 NDAA expresses a sense of Congress that due to the unique mission of USMMA,

it is highly desirable that its superintendent be a USMMA graduate in good standing who has

attained certain merchant marine licensure.99 The House bill (Section 3510A) was adopted by

Section 3503 of the final enacted bill and amends Title 46 of the U.S. Code by adding this sense

of Congress to the qualifications for superintendent. Under 46 USC §51301(c), as amended in the

96 46 U.S.C. §51101.

97 46 U.S.C. §51103.

98 46 U.S.C. §51104.

99 46 U.S.C. §7101.

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FY2021 National Defense Authorization Act: Selected Issues

final enacted bill, USMAA graduation and captain, chief mate, or chief engineer licensure in the

merchant marine are now among the express superintendent qualifications.

Table 6. Career and Training Backgrounds of USMMA Superintendents

Maritime, Military, and Education Information

13 USMMA Superintendents Appointed from 1942 to 2021

Armed Forces Service

Merchant

Mariner

Navy

Coast Guard

Marine Corps

Army

6 out of 13

9

2

1

1

Post-Secondary Education

USMMA

USNA

USCGA

USMA

Other Schools

4

3

2

1

3

Source: Jeffery L. Cruikshank, Chloe G. Kline, In Peace and War: A History of the U.S. Merchant Marine Academy at

Kings Point (New Jersey: John Wiley & Sons, Inc., 2008); Email to CRS from Office of the Superintendent, U.S.

Merchant Marine Academy, Kings Point, New York, December 2, 2020.

Notes: USNA denotes U.S. Naval Academy; USCGA, U.S. Coast Guard Academy; and USMA, U.S. Military

Academy.

Section 3509 of the FY2021 NDAA requires the MARAD Administrator to make available on a

public website, not later than January 1, 2022, information regarding the number of USMMA and

SMAs graduates for the preceding five years, who are employed in, or whose status qualifies

under, the following categories: unknown, non-maritime, maritime afloat, maritime ashore,

graduate studies, and the armed forces of the United States.

This section also requires information on the public website regarding the number of students at

SMAs who are receiving SIP program funds, or have received such funds in the preceding five

years. Likewise, the number of SMAs students who graduated with a federal service obligation,

and the number who did not, is required on the website, to include the number of SMAs students

who received partial SIP program payments and graduated without a federal service obligation.

References: See CRS Insight IN11416, Maritime Administration’s Ready Reserve Sealift Fleet,

by John Frittelli.

Point of Contact: Alan Ott.

Defense Civilians

Background. The civil service consists of three categories: competitive service, excepted service,

and senior executive service (SES). The competitive service is the primary and largest civil

service category. The other categories are excluded from it by statute, the President, or the Office

of Personnel Management (OPM). The excepted service is the next largest category, and its

selection procedures differ from the ones used in the competitive service. The smallest category is

the SES—less than one percent of the civil service. Selection for the SES is based on an OPMregulated merit staffing procedure and qualifications review board (QRB). The stated purpose of

the QRB is to verify and certify an SES aspirant’s executive core qualifications (ECQs).

DOD may employ defense civilians consistent with its yearly appropriation for direct hire

employees. They fill positions that do not require military personnel. The majority of defense

civilians is in the competitive service (82%). Most civil service appointments in DOD are made

under Title 5 of the U.S. Code. The remaining appointments typically are made for specialized

Congressional Research Service

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FY2021 National Defense Authorization Act: Selected Issues

workforces, such as cyber, acquisition, and intelligence, under Title 10 of the U.S. Code. Defense

civilians perform federal functions under the supervision of a servicemember or another defense

civilian. Defense civilians may exercise management or supervisory authority over

servicemembers when authorized, but they do not have command or military justice authority

over them.

There are two common methods for enumerating civil servants: full-time equivalent (FTE) and

on-board personnel (OBP). The executive branch typically uses FTE in budget documents and

OBP in data reports. A FTE unit equals one work year (2,080 hours) and an OBP unit equals one

employee. The FTE method quantifies employment as the number of hours worked at the end of a

fiscal year, irrespective of the number of employees. The OBP method quantifies employment as

the number of actual employees working on the last day of any quarter in a fiscal year, regardless

of their part or full-time status.

Table 7. Defense Civilian FTE and OBP Units

U.S. Direct Hire and Foreign Direct Hire Civilian Employees

DOD Component

FTE – FY2020

OBP – 30 Sep 2020

Defense

217,300

113,640

Army

180,800

252,247

Navy

207,000

225,284

Air Force

169,800

172,857

Total

774,900

764,028

Source: DOD Budget Overview for FY2021, p. 2-8, available at

https://comptroller.defense.gov/Portals/45/Documents/defbudget/fy2021/fy2021_Budget_Request_Overview_Bo

ok.pdf (accessed March 16, 2021); Defense Manpower and Data Center (DMDC), Number of Military and DoD

Appropriated Fund (APF) Civilian Personnel Permanently Assigned, As of September 30, 2020, at

https://dwp.dmdc.osd.mil/dwp/app/dod-data-reports/workforce-reports (accessed March 16, 2021)

Notes: FTE numbers were rounded by source. Navy numbers includes Marine Corps employees.

Civilian Personnel Sectional Analysis

House-Passed H.R. 6395

Senate-Passed S. 4049

P.L. 116-283

Sec. 516 would allow the

establishment of a pilot program to

extend state job placement

programs to members of the

Selected Reserve.

No similar provision

Sec. 518 adopts the House

provision subject to a Senate

amendment for a 50% federal and

50% state cost share, with a report

required not later than Mar 1, 2022

Sec. 911 would prohibit civilian

workforce reductions without

appropriate analysis of the impacts

of such reductions on workload,

military force structure, lethality,

readiness, operational effectiveness,

stress on the military force, and

fully burdened costs.

No similar provision

Sec. 912 adopts the House

provision.

Sec. 1102 would prohibit DOD

from excluding collective bargaining

rights by defunding any such action.

No similar provision

Congressional Research Service

Not adopted

38

FY2021 National Defense Authorization Act: Selected Issues

House-Passed H.R. 6395

Senate-Passed S. 4049

No similar provision

Sec. 1106 would extend the

authority of the Secretary of

Defense to appoint up to 50 senior

executives per year without board

certification from the Office of

Personnel Management.

P.L. 116-283

Sec. 1118 adopts the Senate

provision.

Sec. 1107 would include Defense

Security Cooperation University

and Institute of Security

Governance civilian faculty in

existing authorities for

compensation at DOD academic

institutions.

No similar provision

Sec. 1107 adopts the House

Provision with commentary and a

March 1, 2021, briefing

requirement.

Sec. 1108 would waive the

requirement that retired or

separated servicemembers wait 180

days before filling civilian positions

for any industrial base facility if

there is shortage of applicants.

Sec. 1108 is similar to House Sec.

1108.

Sec. 1108 adopts the House

provision subject to a Senate

amendment that such positions are

at the GS-13 level and below.

Sec. 1109 would create an

alternative work schedule

demonstration project for certain

Navy firefighters.

Sec. 1110A is similar to House

Sec. 1109.

Sec. 1109 adopts both provisions.

Sec. 1107 would authorize DOD

to establish a pilot program offering

higher compensation than normally

allowed for limited numbers of

positions requiring extremely high

levels of experience managing

complex organizations.

Sec. 1119 adopts the Senate

provision

No similar provision

Discussion. It is DOD policy to use civilian employees in all positions that do not require military

incumbents for reasons of law, training, security, discipline, rotation, or combat readiness, or that

do not require a military background for successful performance of the duties involved.100 In

carrying out their responsibilities for civilian personnel management, DOD managers are

governed by DOD policy and the merit system principles in Title 5 of the U.S. Code.101

The House bill (Section 516) allows DOD to establish a pilot program for states to establish or

expand job placement programs and related employment services for members of the Selected

Reserve. Section 518 of the FY2021 NDAA adopts the provision subject to a cost share provision

and authorizes the Secretary of Defense to carry out a pilot program to enhance the efforts of

DOD to provide job placement assistance and related employment services directly to members

of the National Guard and Reserves in reserve active-status. If the pilot program is established,

the Secretary, in coordination with the Chief of the National Guard Bureau, shall submit to the

HASC and SASC a report describing the results of the pilot program not later than March 1,

2022.

The House bill (Section 911) prohibits the Secretary of Defense from reducing the civilian

workforce unless the DOD assesses the impact of such an action based on a number of factors

100 Department of Defense, Directive 1400.05, DOD Policy for Civilian Personnel, §3, January 12, 2005.

101 5 U.S.C. §2301(b).

Congressional Research Service

39

FY2021 National Defense Authorization Act: Selected Issues

specified in the provision. Section 912 of the FY2021 NDAA adopts this provision. Pursuant to

10 U.S.C. §129a, as amended, the Secretary may not reduce the DOD civilian workforce unless

the Secretary conducts an appropriate analysis of the impacts of such reductions on workload,

military force structure, lethality, readiness, operational effectiveness, stress on the military force,

and fully burdened costs.

The Senate bill (Section 1106) would have extended the sunset provision of Section 1109 of the

FY2019 NDAA. Section 1118 of the FY2021 NDAA allows DOD to appoint no more than fifty

SES appointments per year under Title 5 of the U.S. Code without certification by an Office of

Personnel Management (OPM) senior executive service (SES) qualification review board for

three years beyond August 13, 2020.

The House bill (Section 1107) expands the list of covered institutions for which DOD may

establish administratively determined positions. Section 1107 of the FY2021 NDAA adopts this

provision. Under 10 U.S.C. §1595, as amended, the Defense Security Cooperation University and

Defense Institute for Security Governance are added to the list of covered institutions employing

civilian faculty.

The House bill (Section 1108) would have allowed servicemembers to accept a civil service

appointment to specified positions within 180 days of retiring or separating. Section 1108 of the

FY2021 NDAA authorizes the Secretary of Defense to appoint retired servicemembers to DOD

positions classified at or below GS-13, or an equivalent level under another pay plan, in the

competitive service at certain defense industrial base facilities that have been certified by the

Secretary of the military department concerned as lacking sufficient numbers of potential

applicants.

The House bill (Section 1109) authorizes an alternative work schedule demonstration project for

certain Navy fire fighters. Section 1109 of the FY2021 NDAA adopts this provision and requires

the Commander, Navy Region Mid-Atlantic to establish and carry out a fire fighters alternative

work schedule demonstration project for the Navy Region Mid-Atlantic Fire and Emergency

Services. The demonstration project is to be established not later than 180 days after January 1,

2021, and to exist for a period of not less than five years.

The Senate bill (Section 1107) authorizes DOD to establish a pilot program offering higher

compensation than normally allowed by the executive schedule for a limited number of positions.

Section 1119 of the FY2021 NDAA allows the Secretary of Defense to carry out a pilot program

to assess the feasibility and advisability of using the enhanced pay authority. The enhancement

would increase the rate of basic pay for certain agency level executive positions to attract and

retain executives with certain skills and abilities.

References: See CRS In Focus IF11510, Defense Primer: Department of Defense Civilian

Employees, by Alan Ott and CRS Report R45635, Categories of Federal Civil Service

Employment: A Snapshot, by Jon O. Shimabukuro and Jennifer A. Staman

Point of Contact: Alan Ott.

Defense Health Care and Public Health

The HASC and SASC have jurisdiction over military health care, the Defense Health Agency and

the Defense Health Program, as well as the DOD Retiree Health Care Fund and the Armed Forces

Congressional Research Service

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FY2021 National Defense Authorization Act: Selected Issues

Retirement Home.102 DOD health care and related veterans’ health matters are a significant

portion of the FY2021 NDAA and various provisions address a wide range of health care and

public health issues.

Military Health System Administration

Background. DOD operates a health care delivery system that serves approximately 9.6 million

beneficiaries.103 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.104 Historically, the military services have administered the MTFs, while the

Defense Health Agency105 (DHA) administered the private sector care program of TRICARE.

DHA describes itself as 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.106

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.”107

Subsequently, Congress directed numerous reforms for the MHS, including:

 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 advisor for their

respective military service and as service chief medical advisor to the DHA.108

Congress also directed DOD to implement most reforms no later than September 30, 2021. On

October 25, 2019, the military services transferred the administration and management of their

U.S.-based MTFs to the DHA.109 The military services are to continue to administer their

overseas MTFs until transfer to the DHA in 2020-2021.110

Military Health System Administration Sectional Analysis

House-Passed H.R. 6395

Senate-Passed S. 4049

P.L. 116-283

Organizational Management

102 U.S. Senate, Document 113-18, Standing Rules of the Senate, January 24, 2013, p. 20 U.S. House of

Representatives, Rules of the House of Representatives, January 11, 2019, p. 6; RCP 116-25, Rules Adopted by the

Committees of the House of Representatives of the United States, 116th Congress, 2019-2020, p. 37.

103 DOD, Evaluation of the TRICARE Program: Fiscal Year 2020 Report to Congress, June 9, 2020, p. 21.

104 For more on TRICARE, see CRS In Focus IF10530, Defense Primer: Military Health System, by Bryce H. P.

Mendez.

105 Prior to the creation of the Defense Health Agency (DHA) in 2013, the TRICARE Management Activity (TMA)

was the DOD organization that administered the TRICARE program.

106 For more on the DHA, see https://health.mil/About-MHS/OASDHA/Defense-Health-Agency.

107 H.Rept. 114-840, p. 1066.

108 10 U.S.C. §1073c; and Sections 711 and 712 of the John S. McCain NDAA for FY 2019 (P.L. 115-232). See also

Deputy Secretary of Defense Memorandum, Continuing Implementation of the Reform of the Military Health System,

October 25, 2019, at https://go.usa.gov/x7GQS.

109 Deputy Secretary of Defense Memorandum, Continuing Implementation of the Reform of the Military Health

System, October 25, 2019.

110 Ibid.

Congressional Research Service

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FY2021 National Defense Authorization Act: Selected Issues

House-Passed H.R. 6395

Senate-Passed S. 4049

P.L. 116-283

Sec. 714 would amend 10 U.S.C.

§1093c(e) by extending to

September 30, 2025, the deadline

for the Defense Health Agency

(DHA) to establish subordinate

entities that consolidate certain

Research and Development

activities and Public Health

activities.

Sec. 721 is a similar provision to

House Sec. 714 that would extend

the deadline to September 30,

2024; and amends Sec. 737 of the

FY2020 NDAA to clarify the

preservation of certain Department

of the Army medical resources.

Not adopted. Deadline remains

September 30, 2022.

Sec. 716 would amend Section

703(d) of the FY2019 NDAA (P.L.

115-232) by establishing a noticeand-wait process and revising the

elements of the implementation

plan for restructure or realignment

of military treatment facilities

(MTFs).

No similar provision

Sec. 718 adopts House Sec. 716

with an amendment that requires

the Secretary of Defense to certify

to the congressional defense

committees that beneficiaries will

be able to access health care

services if an MTF is restructured

or realigned.

Sec. 719 would amend 10 U.S.C.

§1073d by requiring the

maintenance of certain MTFs at U.S.

military service academies.

No similar provision

Not adopted

No similar provision

Sec. 722 would amend Section

713(c) of the FY2019 NDAA (P.L.

115-232) to delay the transition of

the TRICARE Dental Program to

the Federal Employees Dental and

Vision Insurance Program (FEDVIP)

to January 1, 2023.

Sec. 711 adopts Senate Sec. 722

with an amendment that replaces

the originally proposed provision

with a provision that repeals the

administration of TRICARE Dental

Program benefits through FEDVIP.

No similar provision

Sec. 742 would amend 10 U.S.C.

§2113a(b) to add the Defense

Health Agency Director as an exofficio member of the Uniformed

Services University of the Health

Sciences (USUHS) Board of

Regents.

Sec. 715 adopts Senate Sec. 742.

Military Medical Personnel

Sec. 715 would amend Section 719

of the FY2019 NDAA (P.L. 115232) by extending certain

limitations on changes to the

military medical end-strength for a

one-year period after enactment.

No similar provision

Sec. 717 adopts House Sec. 715

with an amendment to prohibit any

military medical end-strength

reductions within 180 days after

enactment.

Civilian Partnerships

Sec. 731 would amend Section 740

of the FY2020 NDAA (P.L. 116-92)

to require DOD to conduct a pilot

program, no later than 180 days

after enactment, using militarycivilian partnerships to enhance

interoperability and medical surge

capabilities of the National Disaster

Medical System.

Congressional Research Service

Sec. 744 is a similar provision to

House Sec. 731 that would require

a pilot program no later than

September 30, 2021.

Sec. 741 adopts Senate Sec. 744

with an amendment to require

DOD to submit an initial report to

Congress within 180 days after the

pilot program commences and a

final report within 180 days after

the pilot program is completed.

42

FY2021 National Defense Authorization Act: Selected Issues

Discussion. The House and Senate bills include a number of provisions to delay or clarify certain

congressionally directed or DOD-initiated reform efforts.

Organizational Management. In 2018, Congress directed DOD to consolidate most of its

medical research and public health programs under the DHA by September 30, 2022.111 Section

714 of the House bill would have extended to September 30, 2025, the deadline for DHA to

establish a formal research and development entity and public health entity, comprised of serviceadministered organizations. Section 721 of the Senate bill would have extended the deadline to

September 30, 2024. The FY2021 NDAA adopts neither House Section 714 nor Senate Section

721.

On February 19, 2020, DOD submitted its plan to restructure selected MTFs as required by

Section 703(d) of the FY2017 NDAA (P.L. 114-328).112 The plan identifies 50 MTFs for

restructuring over the next several years, with 43 slated for downsizing, one for capability

enhancements, one for recapitalization, and five for closure.113 Section 716 of the House bill

modifies the requirements for DOD’s implementation plan to restructure its MTFs. Such

modifications include a discussion on local health care capacity and quality in the case of a

reduction of DOD services. The provision also establishes a “notice and wait” period (i.e., after

the implementation plan is resubmitted to Congress and one year after enactment) before DOD

can proceed with MTF restructuring. Section 718 of the FY2021 NDAA adopts this provision

with an amendment requiring the Secretary of Defense to certify to the congressional defense

committees that beneficiaries will be able to access health care services if an MTF is restructured

or realigned. The amendment also revises the notice and wait period to the later of 180 days after

(1) DOD submits its implementation plan and certification, or (2) the enactment of the FY2021

NDAA.

Section 719 of the House bill would have required DOD to maintain MTFs at the Service

Academies if no civilian health care facilities within five miles have the following medical

capabilities: emergency care; orthopedics; general surgery; ear, nose, and throat services;

gynecology; ophthalmology; inpatient care; and any other services deemed necessary by a

respective Service Academy Superintendent.114 The FY2021 NDAA did not adopt this provision.

The FY2019 NDAA directed the transition of DOD’s voluntary dental benefit for family

members and military reservists from the TRICARE Dental Program to the Office of Personnel

Management’s Federal Employees Dental and Vision Insurance Program (FEDVIP) by January 1,

2022.115 Section 723 of the Senate bill would have extend the deadline for DOD to transition to

FEDVIP to January 1, 2023. Section 711 of the FY2021 NDAA replaces the originally proposed

111 P.L. 114-328, §711.

112 DOD, Restructuring and Realignment of Military Medical Treatment Facilities, February 19, 2020, at

https://health.mil/About-MHS/OASDHA/Defense-Health-Agency/Congressional-Relations/Restructuring-andRealignment-of-Military-Medical-Treatment-Facilities.

113 For an overview of DOD’s plan, see CRS In Focus IF11458, Military Health System Reform: Military Treatment

Facilities, by Bryce H. P. Mendez.

114 In this section, the term "Service Academies" refers to those specified in 10 U.S.C. §341: the United States Military

Academy, United States Naval Academy, and United States Air Force Academy. DOD does not administer health care

services at the remaining two federal service academies (i.e., U.S. Coast Guard Academy and U.S. Merchant Marine

Academy). Those academies’ respective parent organizations administer their health services program.

115 P.L. 115-232 §713(c). For more on the TRICARE Dental Program, see

https://tricare.mil/CoveredServices/Dental/TDP. For more on the Federal Employee Dental and Vision Insurance

Program (FEDVIP), see https://www.benefeds.com/education-support/dental-vision.

Congressional Research Service

43

FY2021 National Defense Authorization Act: Selected Issues

provision with an amendment that repeals 5 U.S.C. §8951(8) and 10 U.S.C. §1076a(b), no longer

requiring DOD to provide its TRICARE Dental Program through FEDVIP.116

With regard to the administration and management of the Uniformed Services University of the

Health Sciences (USUHS), a Board of Regents is statutorily required to advise the Secretary of

Defense on the university’s academic and administrative matters.117 Currently, the Board includes

15 members: nine voting members (civilians not currently affiliated with DOD), and six exofficio (non-voting) members that include the Secretary of Defense, USUHS President, and the

surgeons general of the uniformed services, or their designees.118 Section 742 of the Senate bill

amends 10 U.S.C. §2113a(b) to add the DHA Director as an ex-officio member of the USUHS

Board of Regents. Section 715 of the FY2021 NDAA adopts this provision.

Military Medical Personnel. DOD’s budget request for FY2021 includes a proposal to reduce its

active duty medical force by 9.6% (7,422 personnel) in order to maintain a workforce that is

“appropriately sized and scoped to meet NDS [National Defense Strategy] requirements as well

as allow the MHS to optimize operational training and beneficiary care delivery.”119 Compared to

FY2020 levels, the Navy would have the largest reduction in medical personnel (-12.5%),

followed by the Army (-12.0), and the Air Force (-4.6%).120 To mitigate potential impacts on

beneficiary care resulting from active duty medical force reductions, the Assistant Secretary of

Defense for Health Affairs has directed the DHA to work with the military departments on

alternatives to access health care (i.e., MTF care provided by civil servant employees and

contractors, expansion of the TRICARE network, partnerships with local civilian health

systems).121

In the FY2020 NDAA, Congress enacted limitations on DOD’s ability to reduce or realign its

active duty medical force until certain reviews, analyses, measurements, and outreach actions are

completed.122 However, the law did provide certain exceptions to proceed with force reductions,

such as historically vacant, nonclinical, and headquarters-assigned positions.123 Section 715 of the

House bill prohibits active duty medical force reductions for one year after enactment. After one

year, DOD is able to reduce or realign positions after meeting the requirements established in the

116 5 U.S.C. §8951(8) defines certain TRICARE beneficiaries as being eligible individuals for FEDVIP. 10 U.S.C.

§1076a(b) directs the Secretary of the Defense to administer the TRICARE Dental Program through FEDVIP.

117 10 U.S.C. §2113a. For more on the Uniformed Services University

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