# FY2021 National Defense Authorization Act: Selected Personnel and Health Care Issues > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR46810 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** June 4, 2021 - **Citation:** R46810 ## Text 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. Congressional Research Service 1 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. Congressional Research Service 2 FY2021 National Defense Authorization Act: Selected Issues 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. Congressional Research Service 3 FY2021 National Defense Authorization Act: Selected Issues 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. Congressional Research Service 4 FY2021 National Defense Authorization Act: Selected Issues 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. Congressional Research Service 5 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). Congressional Research Service 6 FY2021 National Defense Authorization Act: Selected Issues 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. Congressional Research Service 7 FY2021 National Defense Authorization Act: Selected Issues 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 Congressional Research Service 8 FY2021 National Defense Authorization Act: Selected Issues House-Passed H.R. 6395 on command climate, equal opportunity claims and minority inclusion in education and extracurricular activities. Senate Passed S. 4049 P.L. 116-283 command climate surveys at the service academies over a 2-year period. Discussion. The House and Senate bills included several provisions that sought to enhance oversight of diversity and inclusion issues in DOD. In June and July 2020, then-Secretary of Defense Mark Esper announced several initiatives aiming to improve diversity and inclusion in DOD.14 One of these initiatives was to establish a medium-term Defense Board on Diversity and Inclusion, and a long-term Defense Advisory Committee on Diversity and Inclusion in the Armed Services “to provide an independent and enduring review and assessment.” Section 551 of the FY2021 NDAA consolidates several provisions from the House and Senate bills to create reporting requirements on the advisory committee’s structure and findings and to prohibit the dissolution of the committee without congressional notification. Section 551 also seeks to standardize D&I metrics, data collection, methodology, and reporting across the armed forces and Coast Guard and requires certain reports to be publicly available after delivery to Congress. Metrics constructed under this authority are prohibited from being used to establish diversitybased quotas or undermining merit-based processes. In addition, the provision requires DOD policies to “define conscious and unconscious bias and provide guidance to eliminate such bias.” The provision requires plans and policies to address D&I barriers across the military lifecycle starting with recruitment and accession and requires annual meetings of senior leadership across the departments to provide a forum to assess progress towards D&I goals and share advice. Secretary Esper’s July memo ordered a review of policies with respect to promotion boards and selection processes including provisions for diversity in promotion and selection board panels15 and removal of pictures and references to race, ethnicity, and gender in promotion packets. The final enacted bill adopts two provisions of the House bill that affect how DOD conducts promotion and selection boards. Section 503 amends promotion statutes to ensure that boards “represent the diversity of the armed forces to the extent practicable.” Section 524 requires the redaction of official photos from selection board materials. Part of the justification behind the removal of pictures and, perhaps, other personally identifiable information is the belief that it will reduce the impact of unconscious bias that can affect promotion board decisions.16 14 Memorandum from Mark Esper, Secretary of Defense, Actions for Improving Diversity and Inclusion in the Department of Defense, June 19, 2020, at https://media.defense.gov/2020/Jun/22/2002319394/-1/-1/1/ACTIONS-FORIMPROVING-DIVERSITY-AND-INCLUSION-IN-THE-DOD.PDF. Memorandum from Mark Esper, Secretary of Defense, Immediate Actions to Address Diversity, Inclusion, and Equal Opportunity in the Military Services, July 14, 2020, at https://media.defense.gov/2020/Jul/15/2002457268/-1/1/1/Immediate_Actions_to_Address_Diversity_Inclusion_Equal_Opportunity_in_Military_Services.pdf 15 Covered promotion boards are those for active and reserve officers. The legislation also defines selection boards as any board “used with respect to the promotion, education, or command assignments of members of the Armed Forces that is not covered by the amendments made by this section.” 16 Unconscious bias, implicit bias, or implicit social cognition refers to the assumptions or social stereotypes that individuals form about certain groups of people that are shaped by experience and culture, but held outside the individual’s conscious awareness. Implicit bias has been associated with unintentional discriminatory behavior towards individuals based on race, sex, or other physical attributes. Anthony G. Greenwald and Linda Hamilton Kriegert, “Implicit Bias: Scientific Foundations (Section VIII),” California Law Review, vol. 94, no. 4 (July 2006). Jeff Schogol, “Army removes indicators of race and gender in soldier promotions in an effort to fight bias,” Task and Purpose, June 26, 2020. Congressional Research Service 9 FY2021 National Defense Authorization Act: Selected Issues 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. Congressional Research Service 10 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. Congressional Research Service 11 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. Congressional Research Service 13 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. Congressional Research Service 14 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 Congressional Research Service 15 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). Congressional Research Service 16 FY2021 National Defense Authorization Act: Selected Issues 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. Congressional Research Service 17 FY2021 National Defense Authorization Act: Selected Issues 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 Congressional Research Service 18 FY2021 National Defense Authorization Act: Selected Issues 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 Congressional Research Service 19 FY2021 National Defense Authorization Act: Selected Issues domestic violence offense, or a family member or associate of the victim, from a person subject to the UCMJ. Congress did not adopt this provision.50 The Senate bill (Section 586) addresses the Defense Central Index of Investigations (DCII) title and index correction or expungement process.51 Section 585 of the final enacted bill adopts this provision which changes the current standard of review to allow greater probability that a titled and indexed servicemember who was never criminally prosecuted or administratively disciplined for the titled offense could have personally identifying information in the DCII expunged or corrected. The provision also requires that not later than October 1, 2021, the Secretary of Defense shall submit to the HASC and SASC a report on the actions taken under Section 545, including a comprehensive description of the policy and process developed and implemented to carry out the section’s requirements. References: See CRS Insight IN11484, Analysis of Military Court Protective Order Provision in H.R. 6395, by Alan Ott; CRS Report R46503, Military Courts-Martial Under the Military Justice Act of 2016, by Jennifer K. Elsea and Jonathan M. Gaffney; and CRS Report R45970, Gun Control: National Instant Criminal Background Check System (NICS) Operations and Related Legislation, by William J. Krouse. Points of Contact: Alan Ott and Kristy N. Kamarck (Sex-Related Offenses). Military Personnel Programs The HASC and SASC have jurisdiction over the broad area of DOD policy and programs related to military personnel that are addressed in the FY2021 NDAA. This area includes matters associated with military families, such as DOD schools and DOD assistance programs that focus on military family members.52 Military Awards, Honors, and Decorations Background. The DOD awards and decorations program recognizes with personal military decorations servicemembers who perform qualifying acts of valor, non-combat heroism, or meritorious service or achievement. The program also recognizes with related DOD-wide service medals qualifying participation in a military campaign or expedition, or other significant military operation. No such award or decoration may be presented to an individual whose subsequent service was not honorable. Military Awards, Honors, and Decorations Sectional Analysis House-Passed H.R. 6395 Senate-Passed S. 4049 P.L. 116-283 Medal of Honor (MOH) 50 For more analysis, see CRS Insight IN11484, Analysis of Military Court Protective Order Provision in H.R. 6395, by Alan Ott. 51 Department of Defense, Instruction 5505.07, Titling and Indexing In Criminal Investigations, February 28, 2018. 52 U.S. Senate, Document 113-18, Standing Rules of the Senate, January 24, 2013, p. 20; U.S. House of Representatives, Rules of the House of Representatives, January 11, 2019, p. 6; RCP 116-25, Rules Adopted by the Committees of the House of Representatives of the United States, 116th Congress, 2019-2020, p. 37. Congressional Research Service 20 FY2021 National Defense Authorization Act: Selected Issues 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 Congressional Research Service 21 FY2021 National Defense Authorization Act: Selected Issues 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. Congressional Research Service 22 FY2021 National Defense Authorization Act: Selected Issues 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, Congressional Research Service 23 FY2021 National Defense Authorization Act: Selected Issues 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. Congressional Research Service 24 FY2021 National Defense Authorization Act: Selected Issues House-Passed H.R. 6395 Senate-Passed S. 4049 Sec. 561 would require DOD to develop family readiness: definitions, a communication strategy, and report to Congress. No similar provision P.L. 116-283 Sec. 581 adopts the House provision and requires DOD to act on recommendations from the National Academies of Science, Engineering and Medicine. Military Spouse Education and Employment Sec. 564 would expand eligibility for financial assistance under the My Career Advancement Account (MyCAA) program to continuing education courses and national testing (including College Level Examination Program tests) Sec. 577 is a similar provision to House Section 564 that also includes financial assistance for the Subject Standardized Tests of the Defense Activity for NonTraditional Education Support Division of the Department of Defense).’’ Sec. 615 would expand reimbursable State licensure and certification costs for a military spouse arising from relocation under 37 U.S.C. §476. Sec. 574 would clarify eligibility requirements for reimbursement of military spouse licensing costs Sec. 622 adopts the Senate provision. pursuant to a permanent change of station and would shift the authority to 37 U.S.C. §453. Sec. 570D would require DOD to evaluate partner criteria for the Military Spouse Employment Program (MSEP). Sec. 625 would require a DOD study on the feasibility of thrift savings plan (TSP) contributions by military spouses. Sec. 586 adopts the Senate provision. No similar provision Sec 587 adopts the House provision and requires an additional report within one year of implementation of any program changes. No similar provision Sec. 628 requires a DOD study on the feasibility of thrift savings plan (TSP) contributions by military spouses to the account of the servicemember. Military Childcare Sec. 563 would expand the authority for DOD to provide financial assistance to certain inhome childcare providers. Sec. 621 would expand the fee assistance authority to provide for survivors of servicemembers who die in the line of duty. Sec. 623 would require DOD to review the amount of the fee assistance subsidy for childcare services. Sec. 624 would provide priority for certain military family housing to servicemembers whose spouse agrees to provide family home day care services. Congressional Research Service No similar provision Sec. 589 requires DOD to establish a pilot program for providing financial assistance to certain in-home childcare providers. No similar provision Sec. 629 requires a GAO report on the implications of expanding the fee assistance program to survivors of servicemembers who die in the line of duty or active duty for training. No similar provision Sec. 626 requires the Secretary of Defense to develop and implement a method to calculate fee assistance for childcare and youth program service providers, based on local variations in cost for childcare services. Sec. 576 would require several initiatives with respect to military childcare programs to include,   center fee matters; fee assistance program; Sec. 627 provides priority for certain military family housing to servicemembers whose spouse agrees to provide family home day care services for at least one year. 25 FY2021 National Defense Authorization Act: Selected Issues House-Passed H.R. 6395   Sec. 565 would require a feasibility determination for providing 24hour childcare to DOD servicemembers and employees who work on rotating shifts. No similar provision Division H, Title II, Subtitle C, §§9301 - 9309—Access to Childcare for Coast Guard Families Senate-Passed S. 4049 P.L. 116-283 increasing childcare workforce; and assessment of capacity at highdemand installations Sec. 585 adopts the Senate provision with some amendments to allow for child development center discounts for families with 2 or more children and to require reports on high-demand installations. Sec. 1067 is a similar provision to House Sec. 565. Sec. 588 requires the Secretary of Defense to provide childcare to servicemembers or DOD civilian employees while working a rotating shift at a military installation, if determined feasible after completing a study and reporting to Armed Services committees. Sec. 571 would delineate responsibility for allocation of certain funds for military child development programs. Sec. 584 adopts the Senate provision. No similar provision Secs. 8231 – 8239 adopts these provisions with some amendments. Parental Leave Sec. 566 would allow for continuation of paid parental leave upon death of a child. No similar provision Sec. 606 would provide compensation and credit for retired pay purposes for maternity leave taken by members of the reserve components. Sec. 603 is an identical provision to House Sec. 606. Not adopted Sec. 602 adopts this provision. Discussion. The following discussion comprises four topic areas.     Family readiness. Military spouse education and employment. Military childcare programs. Military parental leave. Family Readiness. In 2019, two reports were published that issued recommendations for improving the welfare of military families; the DOD Inspector General report, Fiscal Year 2020 Top DOD Management Challenges; and the National Academies of Science, Engineering and Medicine (NASEM) report, Strengthening the Military Family Readiness System for a Changing American Society.64 Section 561 of the House bill requires DOD to develop a concept of family 64 DODIG, Fiscal Year 2020 Top DOD Management Challenges, Challenge 3: Ensuring the Welfare and Well-Being of Military Servicemembers, October 15, 2019, at https://media.defense.gov/2019/Nov/04/2002205654/-1/1/1/DEPARTMENT%20OF%20DEFENSE%20OFFICE%20OF%20INSPECTOR%20GENERAL%20FISCAL%20Y EAR%202020%20TOP%20MANAGEMENT%20CHALLENGES.PDF. National Academies of Sciences, Engineering, and Medicine, Strengthening the Military Family Readiness System for a Changing American Society, 2019, at https://www.nap.edu/catalog/25380/strengthening-the-military-family-readiness-system-for-a-changingamerican-society. Congressional Research Service 26 FY2021 National Defense Authorization Act: Selected Issues 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/. Congressional Research Service 27 FY2021 National Defense Authorization Act: Selected Issues 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. Congressional Research Service 28 FY2021 National Defense Authorization Act: Selected Issues 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. Congressional Research Service 29 FY2021 National Defense Authorization Act: Selected Issues The final enacted bill adopts Division H, Title II, Subtitle C of the House Bill, which addresses childcare issues for U.S. Coast Guard personnel and their families. Several provisions under this section seek to provide parity with DOD childcare programs, through surveys, studies, and pilot programs. Military Parental Leave. The FY2017 NDAA authorized up to 12 weeks of parental leave (including up to six weeks convalescent leave) for the primary caregiver in connection with the birth of a child.78 It also authorized six weeks of leave for a primary caregiver in the case of an adoption of a child. Under this legislation, secondary caregivers can take up to 21 days of leave in connection with a birth or adoption. Section 566 of the House bill would have allowed the member to take the full parental leave even if the child dies prior to the end of the previously approved leave period. This provision was not adopted; however, the committee report noted that, Commanders are entrusted with the responsibility of taking care of their troops, which would include ensuring they have the ability to take leave to deal with the pain caused by the death of a child. If it becomes clear that commanders are not performing as expected, the conferees remain open to considering future legislation in this area. Sections 606 of the House bill and 603 of the Senate bill are identical provisions that allow military reservists on maternity leave to continue to receive credit towards military retirement. This provision was adopted in the final enacted bill. References: See CRS Report R46498, Military Spouse Employment, by Kristy N. Kamarck, Barbara L. Schwemle, and Sofia Plagakis; CRS Report R45288, Military Child Development Program: Background and Issues, by Kristy N. Kamarck; and CRS Report RL34751, Military Retirement: Background and Recent Developments, by Kristy N. Kamarck. Point of Contact: Kristy N. Kamarck. COVID-19 Personnel Program Provisions Background. Throughout 2020, DOD responded to many requests for Defense Support of Civilian Authorities (DSCA) as part of its role in the federal response to COVID-19. Several requirements for new or modified personnel programs or authorities arose in relation to the military units and personnel providing this support. Soldier and family personnel programs and benefits requirements were also affected by COVID-19 support activities, to include COVID-19 testing and treatment, education services for military dependents, requirements for special pays, and delayed entitlements or other benefits.79 COVID-19 Personnel Program Provisions Sectional Analysis House-Passed H.R. 6395 Senate-Passed S. 4049 P.L. 116-283 Military Pay and Retirement 78 P.L. 114-328, §521; 10 U.S.C. §701. Convalescent leave is a type of medical leave that is typically approved by a physician. 79 See Amy Bushatz, “Will Troops Continue to Receive Special Pays Amid the Pandemic? It Depends,” Military.com, April 9, 2020, at https://www.military.com/daily-news/2020/04/09/will-troops-continue-receive-special-pays-amidpandemic-it-depends.html; and DOD, “Fact Sheet: COVID-19 Military Personnel, Pay, and Benefits Policy – Supplement 1,” April 9, 2020, at https://www.whs.mil/Portals/75/Coronavirus/DoD%20Military%20Pay%20%20Personnel%20Benefits%20FAQ_SUP %201.pdf?ver=2020-04-09-134841-657. Congressional Research Service 30 FY2021 National Defense Authorization Act: Selected Issues House-Passed H.R. 6395 Senate-Passed S. 4049 No similar provision Sec. 602 would direct the Service Secretaries to issue hazardous duty pay for members of the Armed Forces performing in response to the COVID-19 pandemic. Not adopted Sec. 621 is similar to House Sec. 514. Sec. 516 adopts Senate Sec. 621 with an amendment that amends Sections 12732 and 12733 of Title 10, United States Code, to authorize the Secretary of Defense, or the Secretary of Homeland Security with respect to the Coast Guard, to provide points for reserve retirement purposes if a reserve servicemember is prevented from participating in required drills or training during the emergency period beginning on March 1, 2020, which coincides with the COVID-19 pandemic. The provision also requires the Secretary of Defense to provide a report to the Committees on Armed Services of the Senate and the House of Representatives on the use of this authority. Sec. 514 would grant constructive credit towards retirements for a member of the Reserve Components who cannot complete minimum annual training requirements due to the COVID-19 pandemic. P.L. 116-283 Other Personnel-Related Provisions Sec. 519 would require the DOD to submit a report to Congress on how the Secretary of Defense determined the authorization of full-time National Guard duty in response to the COVID-19 pandemic. No similar provision Sec. 519A adopts House Sec. 519 with a technical amendment. Sec. 520B would require DOD to provide quarantine housing for National Guard members upon completion of active service in response to the COVID-19 pandemic. No similar provision Sec. 517 adopts House Sec. 520B with an amendment that authorizes the Secretary of Defense to provide at least 14 days of housing for members of the Reserve Component ordered to active service in response to the COVID19 national emergency. Sec. 596 would direct the Secretary of Defense to conduct a study on financial hardships among servicemembers during the COVID-19 pandemic. No similar provision Sec. 597 adopts House Sec. 596 with a technical amendment. Discussion. The selected provisions discussed below relate to COVID-19 specific military personnel issues and programs. Selected provisions related to COVID-19 specific Defense Health Care and Public Health issues and programs are discussed separately. Military Pay and Retirement. Section 602 of the Senate bill would have directed Service Secretaries to issue hazardous duty pay to certain servicemembers performing duty in response to Congressional Research Service 31 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 pande [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR46810. Public record. Not legal advice.