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.
Congressional Research Service
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
Congressional Research Service
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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FY2021 National Defense Authorization Act: Selected Issues
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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FY2021 National Defense Authorization Act: Selected Issues
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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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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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.
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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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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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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.
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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. 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
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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
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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).
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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
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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.
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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.
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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.
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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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