The FY2007 National Defense Authorization Act: Selected Military Personnel Policy Issues
Congressional research reportOct 18, 2006
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The FY2007 National Defense Authorization
Act: Selected Military Personnel Policy Issues
(name redacted), Coordinator
Specialist in Military Manpower Policy
(name redacted)
Specialist in National Defense
(name redacted)
Specialist in Military Manpower Policy
(name redacted)
Specialist in Military Manpower Policy
October 18, 2006
Congressional Research Service
7-....
www.crs.gov
RL33571
CRS Report for Congress
Prepared for Members and Committees of Congress
The FY2007 National Defense Authorization Act
Summary
Military personnel issues typically generate significant interest from many Members of Congress
and their staffs. Ongoing military operations in Iraq and Afghanistan in support of the Global War
on Terror, along with the emerging operational role of the Reserve Components, further
heightened interest and support for a wide range of military personnel policies and issues.
CRS selected a number of issues considered by Congress as it acted on the FY2007 National
Defense Authorization Act. In each case, a brief synopsis is provided that includes background
information, a comparison of the House and Senate provisions, if any, and a brief discussion of
the issue. Where appropriate, other CRS products are identified to provide more detailed
background information and analysis of the issue. For each issue, a CRS analyst is identified and
contact information is provided.
This report focuses exclusively on the annual authorization process. It does not include
appropriations, veterans’ affairs, tax implications of policy choices or any discussion of separately
introduced legislation. The Conference Report on H.R. 5122 (H.Rept. 109-702) was adopted by
the House on September 29, 2006, and by the Senate on September 30, 2006. The legislation was
signed by the President on October 17, 2006, becoming P.L. 109-364.
It is not anticipated that this report will be updated.
Congressional Research Service
The FY2007 National Defense Authorization Act
Contents
Time-in-Grade for Promotion to 0-3 ............................................................................................2
Sexual Harassment and Violence at Service Academies ...............................................................3
Sexual Assault Information included in Department of Defense Annual Report ...........................4
Purple Heart Medal for Prisoners of War .....................................................................................5
Military Chaplains ......................................................................................................................6
Targeted Shaping of the Manpower Distribution of the Armed Forces..........................................7
Transportation of Remains of Casualties Dying in a Theater of Combat Operations .....................8
Military Pay Raise ......................................................................................................................9
Servicemembers Group Life Insurance (SGLI) Full Coverage for OIF and OEF ........................ 10
Repeal of the Requirement of Reduction of Survivor Benefit Plan Annuities (SBP) by
Dependency and Indemnity Compensation............................................................................. 11
Effective Date of “Paid-Up” Coverage under the Military Survivor Benefit Plan (SBP) ............. 12
Eligibility of Certain Additional Dependent Children for Survivor Benefit Plan (SBP)
Annuities ............................................................................................................................... 13
Expansion of Conditions for Direct Payment of Divisible Retired Pay under the
Uniformed Services’ Former Spouse Protection Act (USFSPA) .............................................. 14
Authority for Cost of Living Adjustments of Retired Pay Treated as Divisible Property ............. 15
Notice and Copy to Members of Court Orders on Payment of Retired Pay................................. 16
Concurrent Receipt for Military Retirees with Service-Connected Disabilities Rated as
Total by Virtue of Unemployability ........................................................................................ 17
Tricare Coverage for Forensic Examination Following Sexual Assault or Domestic
Violence................................................................................................................................. 18
Prohibition of Increases in Enrollment Fees for Tricare Prime ................................................... 19
Limitation on Increased Tricare Premiums for Reservists .......................................................... 20
DOD Task Force on the Future of Military Health Care............................................................. 21
Comptroller General Study and Report on the Defense Health Program..................................... 22
Treatment of Tricare Retail Pharmacy Network Under Federal Procurement of
Pharmaceuticals ..................................................................................................................... 23
Retiree Tricare Coverage and Employer Health Plans ................................................................ 24
Disallowing Costs of Incentive Payments to Employees for Tricare Enrollment for
Federal Contractors................................................................................................................ 25
National Mail-Order Pharmacy Program ................................................................................... 26
Early Diagnosis/Treatment of Post Traumatic Stress Disorder (PTSD)....................................... 27
Extension on Limitation of Conversion of Military Medical and Dental Positions to
Civilian Positions ................................................................................................................... 28
Roles for Weapons of Mass Destruction Civil Support Teams .................................................... 29
Modification of Presidential Reserve Call Up Authority ............................................................ 30
Congressional Research Service
The FY2007 National Defense Authorization Act
Revision in Computation of Disability Retired Pay Formula for Certain Reserve
Component Members ............................................................................................................. 31
Tricare Benefits for Non-Activated Members of the Selected Reserve ....................................... 32
Modifying Reserve Retirement Authorities................................................................................ 33
Role of National Guard Bureau and Status of National Guard Bureau Chief .............................. 34
Contacts
Author Contact Information ...................................................................................................... 37
Congressional Research Service
The FY2007 National Defense Authorization Act
E
ach year, the Senate and House Armed Services Committee report their respective versions
of the National Defense Authorization Act (NDAA). These contain numerous provisions
that affect military personnel, retirees and their family members. Provisions in one version
are often not included in another, treated differently, or, in certain cases, they are identical.
Following passage of each by the respective legislative body, a Conference Committee is
typically convened to resolve the various differences between the House and Senate versions. If a
Conference Committee reports its final version of the Authorization Act, the bill is returned to the
House and Senate for their consideration. Upon final passage the act is sent to the President for
his approval.
In the course of a typical authorization cycle, congressional staffs receive many constituent
requests for information on provisions contained within the annual NDAA. This report highlights
those personnel-related issues that seem to generate the most intense constituent interest and
tracks their status in the FY2007 House and Senate versions of the NDAA. The House bill was
H.R. 5122 and was approved by the House on May 11, 2006; on June 22, 2006, the Senate struck
all after the enacting clause of H.R. 5122 and substituted the language of its defense authorization
bill, S. 2766. The resulting Conference Report (H.Rept. 109-702) was approved by the House on
September 29, 2006, and by the Senate on September 30, 2006; it was signed by the President on
October 17, 2006, becoming P.L. 109-364.
Each presentation in this report offers the background on a given issue, tracks its legislative
status, discusses the proposed language, identifies other relevant CRS products, and designates a
CRS issue expert.
Congressional Research Service
1
Time-in-Grade for Promotion to 0-3
Background: 10 U.S.C. 619 currently requires a minimum of 18 months in grade as a second lieutenant or Navy ensign before promotion to first
lieutenant or Navy lieutenant junior grade and 24 months in grade as a first lieutenant or Navy lieutenant junior grade before promotion to captain
or Navy lieutenant. As an exception, officers promoted to first lieutenant or Navy lieutenant junior grade before October 1, 2005 are only required
to serve 18 months in grade. This exception was included in the FY2002 National Defense Authorization Act to support the Global War on Terror.
House (H.R. 5122)
The House provision would permanently reduce the
time-in-grade as a first lieutenant or Navy lieutenant
junior grade to 18 months before eligibility for
promotion to captain or Navy lieutenant.
Senate (S. 2766)
Conference
The Senate supports 18 months in grade as a temporary
measure and extends the exception date from October
1, 2005 to October 1, 2008.
Sec. 506, the reduction of the time in grade (18 months)
is extended from October 1, 2005, to October 1, 2008.
Discussion: Historically, time-in-grade requirements have varied from one to two years in grade for promotion to first lieutenant or Navy
lieutenant junior grade and another one to two years for promotion to captain or Navy lieutenant. Time from commissioning to promotion to
captain or Navy lieutenant has therefore ranged from two to four years. Generally, time-in-grade requirements are reduced during periods of
hostilities and increased in the absence of conflict. Because many military positions must be filled by officers of specific ranks, time-in-grade
reductions provide maximum management flexibility for the services in filling their operational requirements.
Reference(s): None.
CRS Point of Contact (POC): Charles Henning at 7-.....
CRS-2
Sexual Harassment and Violence at Service Academies
Background: Public Law 108-136 (sec. 527) added a section to 10 United States Code entitled “Actions to Address Sexual Harassment and
Violence at the Service Academies.” This section contained three main parts: (1) the establishment of a policy on sexual harassment and violence,
(2) an annual assessment, and (3) annual reporting requirements.
House (H.R. 5122)
No language reported.
Senate (S. 2766)
Conference
Sec. 567 modifies this language in a number of ways.
First, it redefines ‘violence’ to the more narrow
definition of ‘sexual violence.’ Second, instead of
directing DOD to conduct the assessment, the
proposed language allows DOD to ‘provide’ and
‘administer’ an assessment. Last, it removes the ‘annual’
requirement for the assessment and reporting and
instead requires such for 2008 and 2010.
Sec. 532 directs, under the guidance of the Secretary of
Defense and/or service secretary, the academy
superintendent to prescribe a policy on sexual
harassment and violence. Included are programs for
awareness, procedures, and disciplinary actions. In
addition, the Secretary of Defense is required to make
an annual assessment and report.
Discussion: Such a modification directs the service academies to bolster their policies concerning sexual harassment and violence and to make an
annual assessment and report.
Reference(s): None.
CRS POC: (name redacted) at 7-.....
CRS-3
Sexual Assault Information included in Department of Defense
Annual Report
Background: Public Law 108-375, sec. 577, “Department of Defense Policy and Procedures on Prevention and Response to Sexual Assaults
Involving Members of the Armed Forces,” directed the Secretary of Defense to create and implement a ‘comprehensive policy on the prevention
and response to sexual assault.’ It also directed the Secretaries of each of the military departments to submit to the Secretary of Defense a report
regarding sexual assaults involving members under the jurisdiction of each respective Secretary. Among the information to be reported is a
“synopsis of, and the disciplinary action taken in, each substantiated case.”
House (H.R. 5122)
Sec. 595 would modify the reporting requirement
concerning disciplinary action by requiring “the results of
the disciplinary action” be reported as well.
Senate (S. 2766)
No reported language.
Conference
Sec. 583 amends P.L. 108-375 to include a “synopsis of
each such substantiated case and, for each such case, the
disciplinary action taken in the case, including the type of
disciplinary or administrative sanction imposed, if any.”
Discussion: Crime rates committed by members of the armed forces are generally lower than those in the general public. Nevertheless, a number
of high profile assaults have resulted in increased congressional oversight, scrutiny and legislative interest in the policies concerning the
prevention, reporting and handling of these cases.
Reference(s): None.
CRS POC: (name redacted) at 7-.....
CRS-4
Purple Heart Medal for Prisoners of War
Background: The Purple Heart medal is awarded to any member of the armed forces for wounds or death as a result of an act of an opposing
armed force, international terrorist attack, or as the result of military operations while serving as part of a peacekeeping force. In 1962, Executive
Order 11016 expanded authority for the awarding of the medal to wounds and death resulting from conflicts other than war. Later that same year,
Army policy was modified to allow prisoners of war (POW) to receive the medal if wounded or injured by their captors. The policy change was
not retroactive. In 1996, Public Law 104-106, expanded eligibility for the Purple Heart to those prisoners of war who were wounded before April
25, 1962, while held as a prisoner of war or while being taken captive, in the same manner as a prisoner of war on or after that date.
House (H.R. 5122)
Senate (S. 2766)
Conference
Sec. 553 expands eligibility for the Purple Heart to the
death of a member of the armed forces who dies in
captivity and is eligible for the Prisoner of War Medal, or
who dies following captivity as a POW due to disease or
disability incurred as a POW and who was issued a
POW medal.
Sec. 589 states “Not later than March 1, 2007, the
President shall provide the Committees on Armed
Services of the Senate and House of Representatives a
report on the advisability of modifying the criteria for
the award of the Purple Heart to authorize the award of
the Purple Heart to military members who die in
captivity under unknown circumstances or as a result of
conditions and treatment which currently do not qualify
the decedent for award of the Purple Heart; and for
military members who survive captivity as prisoners of
war, but die thereafter as a result of disease or disability
incurred during captivity.”
Sec. 556 repeats the Senate language calling for a report
with additional requirements including the circumstances
of the POW, the views of veterans’ service
organizations, and the views of the Secretary of Defense
and the Chairman of the Joint Chiefs of Staff.
Discussion: House language would have expanded the eligibility to receive the Purple Heart to POWs who die while in captivity or die after
release of injuries or illnesses incurred while a POW. The former group would receive the Purple Heart not necessarily as a result of wounds or
injuries suffered but because they died as prisoners. The second group includes those who suffer a disease or disability (not necessarily related to
their treatment by their captors) as a POW. Senate and conference language seeks a presidential report on the issue.
Reference(s): None.
CRS POC: (name redacted) at 7-.....
CRS-5
Military Chaplains
Background: In recent years, military chaplains have come under scrutiny for the alleged “sectarian nature” of some of their public
pronouncements. Complaints have been made that chaplains are not being ‘inclusive’ in their statements and have offended individuals of other
religions. Within the past year, both the Navy and Air Force have issued rules allowing chaplains to pray as they wish during voluntary worship
services but to be nonsectarian, or utilize a ‘moment of silence,’ during public meetings or ceremonies. Religious groups, particularly evangelical
Christians, have complained that such rules are a violation of freedom of religion, represent a “gag order” on leaders of faith, and appear to be
motivated by “political correctness.” Any administrative or legislative activity in this area could raise constitutional questions, particularly with
regard to the First Amendment.
House (H.R. 5122)
Sec. 590 would add language to each of the service
sections (including the Academies) stating that chaplains
“shall have the prerogative to pray according to the
dictates of the Chaplain’s conscience, except as must be
limited by military necessity, with any such limitation
being imposed in the least restrictive manner feasible.”
Senate (S. 2766)
No language was reported.
Conference
No language was reported; however, the Conference
Committee directed the Secretaries of the Navy and the
Air Force to rescind recent directives and instructions,
thereby undoing recent service changes.
Discussion: If enacted, this language would have allowed chaplains to invoke sectarian comments (e.g., to mention Jesus Christ, Allah, or
Buddha) during public meetings or ceremonies. In other words, military necessity considered, sectarian comments would not be limited to private,
voluntary meetings or services.
Reference(s): None.
CRS POC: (name redacted) at 7-.....
CRS-6
Targeted Shaping of the Manpower Distribution of the Armed Forces
Background: The Air Force and Navy have both announced plans to reduce their manpower levels between now and 2012, the Air Force by
approximately 40,000 and the Navy by 60,000. The Army is simultaneously increasing its strength by 30,000, from 482,400 to 512,400. To
facilitate this reshaping of the Armed Forces, Congress has provided a variety of tools for the services with emphasis on voluntary separations and
transfers between the services. Specifically, the Voluntary Separation Incentive (VSI) offers a financial incentive for separation while the “Blue to
Green” program encourages transfers from the Air Force and Navy to the Army.
House (H.R. 5122)
Senate (S. 2766)
Conference
In Section 619, the House increases the incentive bonus
for transfer between the services from $2,500 to
$10,000 but does not address the Voluntary Separation
Incentive (VSI).
Section 618 doubles the current maximum amount of
VSI (from two to four times the full amount of
separation pay for a member who is involuntarily
separated) and extends this shaping program from Dec.
31, 2008 to Dec. 31, 2012.
This section also increases the incentive bonus for
transfer between the services from $2,500 to $10,000.
The House receded with an amendment that deletes
language relating to the expanded use of selective early
retirement boards.
Discussion: Experience from the Armed Forces drawdowns of the early and mid-1990s has demonstrated that voluntary separation programs are
preferable to involuntary programs. VSI allows the services to target overstrength ranks, years of service, skill, rating, military specialty or
competitive category to best shape the force for the future. Using the Senate provision as an example, an Air Force captain with 10 years of service
would be eligible for a maximum VSI payment of approximately $235,000. According to Army officials, the incentive bonus to transfer to another
service (Blue to Green) has prompted 213 officer and 488 enlisted transfers since 2004, including 95 and 259, respectively, so far in FY2006.
References(s): None.
CRS POC: Charles Henning at 7-.....
CRS-7
Transportation of Remains of Casualties Dying in a Theater of Combat
Operations
Background: Among the services/expenses covered “incident to death” in 10 United States Code is section 1482(a)(8): “the Secretary concerned
may pay the necessary expenses of ... [t]ransportation of the remains, and round trip transportation and prescribed allowances for an escort of one
person, to the place selected by the person designated to direct disposition of remains or, if such a selection is not made, to a national or other
cemetery which is selected by the Secretary and in which burial of the decedent is authorized.”
House (H.R. 5122)
Sec. 563 modifies the above language in a number of
ways. First, it requires a uniformed escort at all times.
Second, it requires that the transportation of remains
from Dover Air Force Base, DE, to a military airfield
shall be by military or contracted aircraft whose
exclusive mission is the transportation of remains. Last,
in addition to the above escort, there shall be a military
escort either from Dover AFB, or at the receiving
airfield. This escort, or ‘honor guard’ shall be of
sufficient number to transfer the casket to a hearse for
local transportation. This escort shall attend the remains
until delivery to the next-of-kin. This escort shall consist
of active duty or Ready Reserve members of the armed
forces.
Senate (S. 2766)
No reported language.
Conference
Sec. 562 includes the House language and establishes
January 1, 2007, as the effective date. The Senate added
language that requires the Secretary of Defense to
prescribe regulations, designating that, when remains are
transported by aircraft, the primary mission of the
military or military-contracted aircraft is the
transportation of such remains, as well as clarify the
composition and role of color guards.
Discussion: This language expands the role the military performs with regard to the delivery of remains.
Reference(s): CRS Report RL32769, Military Death Benefits: Status and Proposals, by (name redacted) and (name redacted), and CRS
Report RS21545, Military Funeral Honors and Military Cemeteries: Frequently Asked Questions, by Mari-Jana “M-J” Oboroceanu.
CRS POC: (name redacted) at 7-.....
CRS-8
Military Pay Raise
Background: Ongoing military operations in Iraq and Afghanistan, combined with recruiting challenges, continue to highlight military pay issues.
37 U.S.C. 1009 provides a permanent formula for annual military pay raises that indexes the raise to annual increases in the Economic Cost Index
(ECI). However, for Fiscal Years 2004, 2005, and 2006, Congress approved the raise as the ECI increase plus 0.5%. The FY2007 President’s
Budget requested a 2.2% military pay raise which is consistent with the permanent formula.
House (H.R. 5122)
Senate (S. 2766)
Conference
In Section 601, the House supports a 2.7% across-theboard pay raise that would become effective on January
1, 2007. Section 602 supports an additional targeted pay
raise on April 1, 2007 for mid-grade and senior
noncommissioned officers and warrant officers.
In Section 601, the Senate supports a 2.2% across-theboard pay raise (the amount requested in the President’s
Budget) effective January 1, 2007. Senate also supports a
targeted April 1, 2007 additional pay raise but limited to
E5/E6/E7 (junior and mid-grade noncommissioned
officers). The Senate also extends the military pay table
to 40 years to provide continuing longevity raises for the
most senior officer, warrant officer and enlisted grades.
Section 601 increases basic pay by 2.2 percent and,
effective April 1, 2007, reforms basic pay rates for
selected grades and years of service. Section 602
increases the maximum rate of basic pay for general and
flag officers to conform to the increase in pay cap for
SES personnel.
Discussion: The across-the-board raise is 2.2% with selected pay table adjustments.
Reference(s): CRS Report RL33446, Military Pay and Benefits: Key Questions and Answers, by (name redacted).
CRS POC: Charles Henning at 7-.....
CRS-9
Servicemembers Group Life Insurance (SGLI) Full Coverage for OIF and OEF
Background: All servicemembers are automatically insured under SGLI for a maximum of $400,000 in coverage unless they elect lesser coverage
in $50,000 increments or cancel the coverage entirely, but doing so requires that they request this in writing. The cost (currently $26.00 per month
for full coverage) is paid by the servicemembers through payroll deduction. The FY2006 National Defense Authorization Act required the services
to reimburse the cost of the first $150,000 in coverage elected by the member for all servicemembers serving in Operations Iraqi Freedom and
Enduring Freedom (OIF and OEF). In contrast to most civilian life insurance providers, SGLI pays benefits in the event of combat-related deaths.
House (H.R. 5122)
Sec. 607 expands on the FY2006 SGLI provision by
requiring the services to reimburse servicemembers
serving in OIF and OEF for all levels of coverage under
SGLI (up to the $400,000 maximum).
Senate (S. 2766)
No provision.
Conference
The Senate receded with a technical amendment.
Discussion: Under H.R. 5122, while deployed to OIF or OEF, servicemembers would receive life insurance coverage up to $400,000 at no cost.
The cost to the Department of Defense is estimated at $31M and would be paid from Defense Supplementals.
Reference(s): CRS Report RL31334, Operations Noble Eagle, Enduring Freedom, and Iraqi Freedom: Questions and Answers About U.S.
Military Personnel, Compensation, and Force Structure, by (name redacted) and (name redacted), and CRS Report RL32769,
Military Death
Benefits: Status and Proposals, by (name redacted) and (name redacted).
CRS POC: Charles Henning at 7-.....
CRS-10
Repeal of the Requirement of Reduction of Survivor Benefit Plan Annuities
(SBP) by Dependency and Indemnity Compensation
Background: The military Survivor Benefit Plan (SBP) provides annuities to the survivors of military personnel and retirees. If the military retiree
was eligible to receive disability payments from the Department of Veterans Affairs (VA), that retiree’s surviving spouse would be eligible to
receive VA Dependency and Indemnity Compensation (DIC). Under law there is a dollar-for-dollar offset to SBP for any DIC payments. Language
in the Senate version of the FY2006 National Defense Authorization Act would have eliminated this offset, but it was removed by the Conference
Committee. Instead, Congress ordered the Comptroller General to report on the actuarial soundness of the SBP (P.L. 109-163, January 6, 2006,
sec. 666.).
House (H.R. 5122)
No reported language.
Senate (S. 2766)
Sec. 642 repeals this offset effective the first day of the
first month following enactment. This language would
also require a surviving spouse to repay any refunded
SBP premiums paid as a result of the offset unless the
Secretary of Defense waives such repayment.
Conference
No language was reported.
Discussion: Congress recently repealed the disability payment offset to the military retirement pay of certain retirees. By extension, surviving
spouses have argued that it is only appropriate that they too should be allowed to receive VA DIC benefits and military SBP payments
concurrently. Critics contend that this is a form of dual compensation based on the same period of military service.
Reference(s): CRS Report RL31664, The Military Survivor Benefit Plan: A Description of Its Provisions, by (name redacted).
CRS POC: (name redacted) at 7-.....
CRS-11
Effective Date of “Paid-Up” Coverage under the Military Survivor Benefit
Plan (SBP)
Background: The military Survivor Benefit Plan (SBP) provides annuities to the survivors of military personnel and retirees. The SBP is funded,
in part, via deductions in the retired pay of participants. In 1999, Congress reduced the cost of SBP to certain retirees by enacting the so-called
“paid-up” provision. Under this language, reductions in retired pay made to cover the retiree’s share cease when two conditions are met: (1) the
retiree reaches age 70; and (2) the retiree has participated in the SBP for 360 months. As enacted, these provisions become effective October 1,
2008 (P.L. 105-261, 112 Stat. 2045 October 17, 1998). Language was included in the Senate version of the National Defense Authorization Act for
Fiscal Year 2006 to move the effective date of this provision to October 1, 2005. This language was dropped by the Conference Committee (U.S.
Congress, Conference Committee, National Defense Authorization Act for Fiscal Year 2006 H.Rept. 109-360, 109th Cong., 1st Sess., H.R. 1815,
December 18, 2005: 738).
House (H.R. 5122)
No reported language.
Senate (S. 2766)
Sec. 643 would move the effective date of the “paid-up”
provision from October 1, 2008 to October 1, 2006.
Conference
No language was reported.
Discussion: The SBP was created on September 21, 1972. It is possible for military retirees who entered the service prior to 1978 to both reach the
age of 70 and participate in the SBP for 360 months but be prevented from benefitting under the “paid-up” provision because of the October 1,
2008 effective date. As noted earlier, in the FY2006 National Defense Authorization Act, Congress ordered the Comptroller General to report on
the actuarial soundness of the SBP (P.L. 109-163, January 6, 2006, sec. 666).
Reference(s): CRS Report RL31664, The Military Survivor Benefit Plan: A Description of Its Provisions, by (name redacted).
CRS POC: (name redacted) at 7-.....
CRS-12
Eligibility of Certain Additional Dependent Children for Survivor Benefit
Plan (SBP) Annuities
Background: As originally created, the military Survivor Benefit Plan (SBP) provided coverage for the survivors of military retirees and those
active duty personnel who were eligible to retire. Recent legislation (P.L. 107-107, 115 Stat. 1151 et seq.; December 28, 2001) has expanded the
coverage to the survivors of individuals who die while on active duty and who are not retirement-eligible, effective September 10, 2001.Under
these provisions, the surviving spouses of active duty personnel who die are provided an annuity. In 2003, Congress allowed for these benefits to
be paid to the surviving children, if any, of an active member who dies (P.L. 108-136, November 24, 2003). This provision was effective after
November 23, 2003. With the children as the SBP beneficiaries, the surviving spouse avoids any offsets from the receipt of Dependency and
Indemnity Compensation (DIC) (See the sec. entitled “Survivor Benefit Plan and Veterans’ Affairs Dependency and Indemnity Compensation”).
House (H.R. 5122)
Senate (S. 2766)
Sec. 645 expresses the sense of the Congress that
eligibility for the surviving child in lieu of the surviving
spouse of an active member dying while on active duty
should be extended to cover children of members dying
after October 7, 2001.
Sec. 652 replaces the November 23, 2003 date with
October 7, 2001. Any benefits as a result of this change
are payable for months after enactment of this language
Conference
Sec. 644 adopts the Senate language.
Discussion: Survivors of those who died while serving on active duty were potentially able to increase the benefits they received by designating
their child or children, if any, as the SBP beneficiary(ies), while allowing the surviving spouse to receive VA Dependency and Indemnity
Compensation. As the result of designating the beneficiaries in this manner, it is possible to avoid any offset of SBP as a result of receiving DIC.
Survivors of those who died before November 24, 2003, were not able to select children as an SBP beneficiary and were therefore subject to the
offset. The Senate and Conference language allow this designation back to October 7, 2001.
Reference(s): CRS Report RL31664, The Military Survivor Benefit Plan: A Description of Its Provisions, by (name redacted).
CRS POC: (name redacted) at 7-.....
CRS-13
Expansion of Conditions for Direct Payment of Divisible Retired Pay under
the Uniformed Services’ Former Spouse Protection Act (USFSPA)
Background: Under the USFSPA, courts were given the authority to divide military retired pay as part of a divorce proceeding. If the marriage
lasted 10 years during which member served 10 years of creditable service, the Defense Finance and Accounting Service (DFAS) had the authority
to mail the court-ordered division directly to the former spouse.
House (H.R. 5122)
No language was reported.
Senate (S. 2766)
Sec. 644 expands the authority of the Defense Finance
and Accounting Service to send court-ordered property
divisions directly to the former spouse by removing the
“10 year rule.”
Conference
No language was reported.
Discussion: This language would eliminate the “10 year rule” and allow DFAS to make direct payments for any property division that is otherwise
in compliance. Retroactive payments are not allowed.
Reference(s): CRS Report RL31663, Military Benefits for Former Spouses: Legislation and Policy Issues, by (name redacted).
CRS POC: (name redacted) at 7-.....
CRS-14
Authority for Cost of Living Adjustments of Retired Pay Treated as
Divisible Property
Background: Under the Uniformed Services’ Former Spouse Protection Act (USFSPA), courts are authorized to divided military retired pay as
part of a divorce proceeding. Such a division is usually stated as a percentage of disposable retired pay or as a dollar amount. If stated as a dollar
amount, the former spouse’s portion would not increase as a result of cost of living adjustments to retired pay.
House (H.R. 5122)
No language was reported.
Senate (S. 2766)
Sec. 645 provides that if the amount of divisible property
is expressed in dollars, such amount may be adjusted at
the same time and in the same manner as military
retired pay subject to cost of living adjustments.
Conference
No language was reported.
Discussion: Such a change allows courts to state the division of retired pay in dollars and to express that such amounts be subject to cost of living
adjustments. This language does not make cost of living adjustments automatic. Changes made by this language apply would only to court orders
that become effective after a 90-day period following the enactment of this language.
Reference(s): CRS Report RL31663, Military Benefits for Former Spouses: Legislation and Policy Issues, by (name redacted).
CRS POC: (name redacted) at 7-.....
CRS-15
Notice and Copy to Members of Court Orders on Payment of Retired Pay
Background: Under law, the military is required to report to the service member when the Secretary concerned receives effective service of a
court order concerning military retired pay.
House (H.R. 5122)
No language was reported.
Senate (S. 2766)
Sec. 646 allows the service member to waive
notification.
Conference
No language was reported.
Discussion: This language would allow the member to waive notification. If enacted, members may request a copy of the court order. This
language would become effective with regard to court orders received 90 or more days after enactment.
Reference(s): CRS Report RL31663, Military Benefits for Former Spouses: Legislation and Policy Issues, by (name redacted).
CRS POC: (name redacted) at 7-.....
CRS-16
Concurrent Receipt for Military Retirees with Service-Connected Disabilities
Rated as Total by Virtue of Unemployability
Background: Prior to 1999, military retirees who were eligible to receive disability payments from the Department of Veterans Affairs (VA) had
their retired pay reduced on a dollar-for-dollar basis by the VA disability benefits. Since that time, language has been introduced, and in some cases
enacted, that would afford these retirees additional compensation by allowing them to receive both the VA and DoD benefits (also known as
Concurrent Receipt). The FY2005 NDAA language on concurrent receipt did not address what the Department of Veterans Affairs defines as
“Individual Unemployability,” also known as “100% Unemployables.” Instead, the law focused on military retirees with service-connected or
combat-related VA disability ratings. The FY2006 NDAA contained a partial step toward inclusion of 100% unemployables. It authorized full
concurrent receipt for 100% unemployables beginning October 1, 2009, over four years earlier than the January 1, 2014 date in prior law (the date
of full concurrent receipt for all retirees, regardless of disability rating).
House (H.R. 5122)
No reported language.
Senate (S. 2766)
Sec. 649 authorizes full concurrent receipt for military
retirees rated as 100% unemployable by the Department
of Veterans Affairs effective December 31, 2004.
Conference
No language was reported.
Discussion: The Senate provision (which was not accepted by the Conference Committee) would have retroactively authorized, to December 31,
2004, concurrent receipt for those with a VA Individual Unemployability rating of 100% regardless of the disability rating.
Reference(s): CRS Report RL33449, Military Retirement, Concurrent Receipt, and Related Major Legislative Issues, by (name redacted).
CRS POC: Charles Henning at 7-.....
CRS-17
Tricare Coverage for Forensic Examination Following Sexual Assault or
Domestic Violence
Background: Congressional concerns regarding sexual assault and domestic violence have resulted in various legislative proposals to address
these issues.
House (H.R. 5122)
Sec. 701 would add to the list of services covered under
allowable contracts for medical care for spouses and
children, the following: “Forensic examination following
a sexual assault or domestic violence may be provided.”
Senate (S. 2766)
Sec. 704 contains identical language.
Conference
Sec. 701 modifies Title 10 USC by adding “Forensic
examinations following sexual assault or domestic may
be provided.”
Discussion: This language allows Tricare to contract with health care providers for forensic examinations for eligible spouses and children of
military personnel. What, if any, reporting requirements (e.g., police reports) would be needed to facilitate payment for such contracts is not clear.
Reference(s): None.
CRS POC: (name redacted) at 7-.....
CRS-18
Prohibition of Increases in Enrollment Fees for Tricare Prime
Background: In early 2006, DOD proposed increases in Tricare enrollment fees for retired personnel under age 65. Legislation currently under
consideration would prohibit increases in Tricare Prime enrollment fees (Tricare Prime functions as an HMO for eligible beneficiaries). There are
currently no enrollment fees for Tricare Standard (the fee-for-service option) or Tricare Extra (the preferred provider option).
House (H.R. 5122)
Senate (S. 2766)
Conference
Section 704 would prohibit increases in premiums,
deductibles, copayments and other charges during the
period April 1, 2006 through December 31, 2007.
Section 705 forbids increases in Tricare Prime
enrollment fees in FY2007. The bill omits any
authorization for imposing enrollment fees for Tricare
Standard or Tricare Extra.
Sec. 704 adopts the House provision and prohibits
increases in premiums, deductibles, copayments, and
other charges between April 1, 2006 and September 30,
2007.
Discussion: DOD had requested authority to raise Tricare enrollment fees (including, for the first time, the establishment of fees for Tricare
Standard and Tricare Extra) and copayments for retired beneficiaries not eligible for Medicare as part of its FY2007 budget submission. The goal
is to limit growth in health care spending, which is growing both in real terms and as a percentage of the defense budget. The initiative was met
with widespread opposition, in part, because of the substantial fee increases involved.
References: CRS Report RL33537, Military Medical Care: Questions and Answers, and CRS Report RS22402, Increases in Tricare Costs:
Background and Options for Congress, both by (name redacted).
CRS POC: Richard Best at 7-.....
CRS-19
Limitation on Increased Tricare Premiums for Reservists
Background: The FY2005 Defense Authorization Act (P.L. 108-375) established Tricare Reserve Select (TRS), a voluntary program for reservists
returning from active duty who agree to remain in the Reserves for at least a year. TRS currently requires monthly premiums of $81 for an
individual; $253 for family coverage.
House (H.R. 5122)
Section 709 would repeal TRS and make Tricare
Standard available to all non-active duty reservists.
Senate (S. 2766)
Conference
Section 706 prohibits increases beyond 2.2% of current
TRS premiums during FY2007.
Sec. 706 adopts the House position, expanding eligibility
for Tricare coverage to all Reservists and their
dependents while in a non-active duty status based on
payment of an amount equal to 28% of monthly costs as
established by the Secretary of Defense. Eligibility will
take effect no later than October 1, 2007.
Discussion: The Senate bill would preclude any increases in TRS premiums while the House version abolishes TRS in favor of opening Tricare
Standard (the fee-for-service option) to all non-active duty drilling reservists. Reservists enrolling in Tricare Standard would pay a premium that
would be 28 percent of the total amount determined to be reasonable for the Tricare coverage. The House position was adopted.
References: CRS Report RL33537, Military Medical Care: Questions and Answers, by (name redacted), and CRS Report RL30802,
Reserve
Component Personnel Issues: Questions and Answers, by (name redacted).
CRS POC: Richard Best at 7-.....
CRS-20
DOD Task Force on the Future of Military Health Care
Background: DOD officials, including Secretary Rumsfeld, have testified about growing costs of defense health care and the increasing
percentages of the defense budget that it is absorbing. DOD proposals in early 2006 to raise copayments and premiums, however, generated
significant opposition from the retiree community.
House (H.R. 5122)
Section 711 would establish a DOD Task Force to
examine and report on efforts needed to improve and
sustain Defense health care over the long term. The
Task Force is to consist of military and civilian officials
with experience in health care budgetary and
management issues. DOD would be charged with
forwarding recommendations for sustaining the military
health care benefit to congressional oversight
committees.
Senate (S. 2766)
No comparable provision.
Conference
Sec. 711 adopts the House provision with several
changes to the composition of the task force and
requires an interim report by May 31, 2007.
Discussion: This provision reflects congressional recognition of the budgetary implications of rising costs of defense health care, the need to
provide medical care for a larger percentage of the population, and the unpopularity of increased fees that are charged to beneficiaries. The Task
Force would be free to develop recommendations that would address relevant issues that could be forwarded to congressional committees.
References: CRS Report RL33537, Military Medical Care: Questions and Answers, and CRS Report RS22402, Increases in Tricare Costs:
Background and Options for Congress, both by (name redacted).
CRS POC: Richard Best at 7-.....
CRS-21
Comptroller General Study and Report on the Defense Health Program
Background: DOD officials, including Secretary Rumsfeld, have testified about increasing costs of defense health care and the increasing
percentages of the defense budget that it is absorbing; the significance of cost growth is widely understood. DOD proposals in early 2006 to raise
copayments and premiums, however, generated significant opposition from the retiree community and the larger public.
House (H.R. 5122)
Senate (S. 2766)
Conference
Section 713 requires that the Government
Accountability Office (GAO), in cooperation with the
Congressional Budget Office (CBO), analyze DOD’s
health care costing methodologies, including an
assessment of the rates of inflation used by the
Department in calculating future medical costs. The
resulting report is to be forwarded to Congress by June
1, 2007.
Sec. 744 requires that GAO conduct an audit of the
health care costs and cost-saving measures of DOD
including a comparison of costs, to DOD and to
beneficiaries, between 1995 and 2005. Also required is
an audit of the Tricare Reserve Select program.
Sec. 713 requires GAO, in cooperation with CBO, to
prepare an audit of the costs of health care benefits to
both DOD and to beneficiaries between 1995 and 2005.
Also required is an audit of Tricare Reserve Select. A
report, with recommendations, is to be submitted to
Congress by June 1, 2007.
Discussion: This study is to assess both the rationale for cost shares imposed on beneficiaries since 1995 and the future increases that DOD has
proposed. The study could provide the analytical basis for actions that Congress might consider when addressing future defense budgets.
References: CRS Report RL33537, Military Medical Care: Questions and Answers; CRS Report RS22402, Increases in Tricare Costs:
Background and Options for Congress, both by (name redacted).
CRS POC: Richard Best at 7-.....
CRS-22
Treatment of Tricare Retail Pharmacy Network Under Federal Procurement of
Pharmaceuticals
Background: Pharmaceuticals obtained by DOD are procured under federal pricing rules; there has been a dispute regarding pharmaceuticals
dispensed by the Tricare retail network. DOD has maintained that federal pricing rules apply; the pharmaceutical industry disagrees. There is a
pending court case.
House (H.R. 5122)
No comparable provision.
Senate (S. 2766)
Section 721 states that the Tricare Retail Pharmacy
Network “shall be treated as an element of the
Department of Defense for purposes of the
procurement of drugs by Federal agencies.”
Conference
No provision was included; conferees concluded that
“prescriptions dispensed by the Department of Defense
Retail Pharmacy Program qualify for discounted drug
prices under [38 USC] section 8126.”
Discussion: It was argued that this provision could save an estimated $251 million in 2007. Others argue, however, that the retail pharmacies are
not part of the Defense Department and that treating them as government agencies is an unfair restriction on private enterprise. Some may have
questioned the propriety of Congress legislating while there is a legal case pending.
On September 7, 2006 the House voted to instruct conferees on H.R. 5122 to agree to the provisions in section 721 of the Senate version. No
provision was included by the conference committee, which maintained that prescriptions provided by Tricare retail pharmacies already qualify for
discounted drug prices under 38 USC 8126.
Reference(s): None.
CRS POC: Richard Best at 7-.....
CRS-23
Retiree Tricare Coverage and Employer Health Plans
Background: Military personnel retire from active duty at a relatively young age. Many enter second careers. In 2005, it was reported that certain
states and companies were offering military retiree employees supplemental health care coverage or other incentives if they use Tricare as their
primary health care coverage. Doing so enables these second employers to shift a portion of the cost of their employee health care to the federal
government to enhance the personal benefits of employed military retirees. This increased utilization of Tricare threatens to substantially raise
military health care spending. Traditionally, federal health care plans (including military, Veterans Affairs, Medicare and Medicaid) have been the
second payer.
House (H.R. 5122)
Senate (S. 2766)
Conference
Sec. 710 prohibits offering financial or other incentives
to make Tricare the primary health care provider for
military retirees, effective Jan. 1, 2008. This language
requires employers to treat military retirees in the same
manner as other similarly situated employees. It
provides for a $5,000 penalty for each violation. This
restriction applies to employers who have 20 or more
employees. Military retirees remain eligible for Tricare.
Sec. 722 provides that an employer shall provide a
military retiree employee benefits and services under
the group health plan offered by the employer in the
same manner and to the same extent as other similarly
situated employees. It prohibits the establishment of any
condition (i.e., benefits or agreement) applicable to
participation in the group health plan in terms of
eligibility or benefits/services. It prohibits offering
incentives to not enroll in or to disenroll from group
health plans and allows for a $5,000 penalty for each
violation. This language applies to employers with 20 or
more employees and is effective Jan. 1, 2008.
Sec. 707 prohibits employers from offering incentives
not to enroll or to terminate enrollment under a health
plan in the same manner as prohibited under section
1862(b)(3)(c) of Title XVIII of the Social Security Act. It
allows the Secretary of Defense to adopt exceptions and
provides the DOD Inspector General with oversight and
investigative authority. It provides that an employer shall
provide a military retiree employee benefits and services
under the group health plan offered by the employer in
the same manner and to the same extent as other
similarly situated employees. This language applies to
employers with 20 or more employees and is effective
Jan. 1, 2008.
Discussion: The above language would make Tricare consistent with other federal laws in that it would prohibit certain employers from shifting
military retirees from their group health plans to the federal government via Tricare.
Reference(s): Burrelli, David F., Tricare and Employer-Sponsored Incentives Offered to Military Retirees, CRS Memorandum, June 14, 2006.
CRS POC: (name redacted) at 7-.....
CRS-24
Disallowing Costs of Incentive Payments to Employees for Tricare Enrollment
for Federal Contractors
Background: Private employers are usually permitted to charge employee health care to the federal government as a cost of administering
contracts. Heretofore, incentives offered to military retiree employees have been included in these charges. Secretary Rumsfeld and other DOD
officials have expressed concern about civilian firms providing incentives for their employees who are military retirees to use Tricare rather than
their company’s health care plan. These incentives ultimately result in more civilian beneficiaries using Tricare and thus drive up the overall costs
of defense health care. Special attention has focused on employers who are themselves federal contractors.
House (H.R. 5122)
Section 721 makes unallowable as federal contract costs
any financial incentives that are offered by federal
contractors to their employees to enroll in Tricare
instead of company-provided health care.
Senate (S. 2766)
Although not solely pertaining to “federal contract
costs,” see Sec. 722 description on page CRS-24.
Conference
No provision included.
Discussion: DOD has viewed with concern the increasing numbers of retirees not eligible for Medicare but employed in civilian capacities who
use Tricare because of financial incentives offered by their employers. This provision would address the issue in the case of employers who are
federal contractors by making any such incentives unallowable as contract costs. Some contractors may consider the provision to be an unfair
restriction on their personnel policies. The conference report noted that “the Federal Acquisition Regulation already specifies the circumstances
under which repeated violations of law may be a basis for suspension or disbarment of a Department contractor.”
References: CRS Report RS22402, Increases in Tricare Costs: Background and Options for Congress, by (name redacted).
CRS POC: Richard Best at 7-.....
CRS-25
National Mail-Order Pharmacy Program
Background: Beneficiaries with access to DOD health care may obtain maintenance-type medications (i.e., medications taken regularly rather
than only for a brief period) through the National Mail-Order Pharmacy (NMOP) at considerable savings to DOD (and to themselves inasmuch as
lower co-payments are required) since costs associated with retail pharmacies are avoided.
House (H.R. 5122)
Senate (S. 2766)
Conference
Section 731 precludes co-payments for generic and
formulary medications obtained through the NMOP.
(Non-formulary agents would remain subject to copayments.) Co-payments for pharmaceuticals obtained
through retail pharmacies could not exceed $6 for
generics, $16 for formulary agents, and $22 for
nonformulary agents. (Currently at retail network
pharmacies co-payments are $3 for generics, $9 for
formulary agents, and $22 for nonformulary agents.)
Section 702 requires that effective April 1, 2007 refills of
maintenance medications shall be available solely
through the NMOP (unless clinical requirements dictate
otherwise). DOD may not impose co-pays or costshares on refills of generic medications or brand-name
medications that are determined to be medically
necessary.
The conference report does not include these
provisions. The conferees direct DOD to use “a full
menu of clinical quality and management tools to lower
drug costs and improve quality.” Furthermore, the
“conferees expect that the Department of Defense will
proceed, under current authority, to eliminate copayments for generic drugs dispensed through the
Tricare national mail-order program, as a minimum; and,
in addition, expect [DOD] to move toward providing a
broad range of incentives to increase the use of the
Tricare national mail-order program.”
Discussion: DOD seeks to encourage greater use of the NMOP as a means to control escalating pharmacy costs; provisions in either bill would
provide a major incentive for beneficiaries to acquire pharmaceuticals from the NMOP. Both House and Senate would remove required copayments for pharmaceuticals obtained from the NMOP; the Senate bill would go further and mandate that beneficiaries obtain maintenance
medications from the NMOP. Pharmacy industry representatives criticized the provision requiring use of the NMOP as an unfair restriction on
their businesses. Some beneficiaries argued that they find retail pharmacies more convenient.
Reference(s): CRS Report RS22402, Increases in Tricare Costs: Background and Options for Congress, and CRS Report RL33537, Military
Medical Care: Questions and Answers, both by (name redacted).
CRS POC: Richard Best at 7-.....
CRS-26
Early Diagnosis/Treatment of Post Traumatic Stress Disorder (PTSD)
Background: There has been widespread concern about the potential for personnel who have served in Afghanistan and Iraq to suffer mental
disorders subsequent to their transfer to other duty stations or their release from active duty.
House (H.R. 5122)
No comparable provision.
Senate (S. 2766)
Section 741 would establish pilot projects to evaluate
the efficacy of different approaches to earlier diagnosis
and treatment of PTSD and other mental health
disorders. One project would be carried out in a large
military health facility; another at a National Guard or
Reserve installation whose health care needs are served
by civilian community health resources, and the third
utilizing internet-based tools. Reports by DOD on the
pilot projects would be due to Congress by the end of
2008.
Conference
Sec. 741 adopts Senate provision with modifications.
Discussion: There has been widespread concern that individuals who have the potential for suffering from PTSD are not being identified and
provided early treatment. This provision would evaluate different approaches to addressing this concern.
References: CRS Report RL32961, Veterans’ Health Care Issues in the 109th Congress, by (name redacted).
CRS POC: Richard Best at 7-.....
CRS-27
Extension on Limitation of Conversion of Military Medical and Dental
Positions to Civilian Positions
Background: Congress has long been skeptical of efforts by DOD to replace military medical personnel with civilian care providers; current
legislation requires a certificate by the Secretary of the relevant military department that quality or access to care would not be decreased by any
planned military-to-civilian conversion.
House (H.R. 5122)
No comparable provision.
Senate (S. 2766)
Section 761 extends an existing requirement that any
proposal to civilianize a military medical position must
be accompanied by a certificate that the quality or
access to care will not decrease as a result.
Conference
Sec 742 adopts the Senate position but expands
reporting requirements.
Discussion: Current law affects only FY2006; the Senate language would establish an ongoing requirement for annual certifications. The
certification requirement might, however, be viewed as unnecessarily and inappropriately complicating the professional judgment of senior
defense officials.
References: None.
CRS POC: Richard Best at 7-.....
CRS-28
Roles for Weapons of Mass Destruction Civil Support Teams
Background: Weapons of Mass Destruction Civil Support Teams (WMD-CST) are units of full-time National Guard personnel established under
10 U.S.C. 12310(c). Currently, these teams “perform duties in support of emergency preparedness programs to prepare for or to respond to any
emergency involving—(A) the use of weapons of mass destruction...or (B) a terrorist attack or threatened terrorist attack in the United States that
results, or could result, in catastrophic loss of life or property.” In the event of an incident that fits this description, a WMD-CST is supposed to
rapidly deploy, assist civil authorities with assessing the situation, provide advice on response options, and facilitate the flow of additional
response equipment and forces.
House (H.R. 5122)
Senate (S. 2766)
Section 545 authorizes the use of WMD-CSTs to
prepare for or respond to two new categories of
events—(a) the release of nuclear, biological,
radiological, or toxic or poisonous chemical materials
and (b) natural or manmade disasters—that occur in the
United States and that result in, or could result in, in
catastrophic loss of life or property.
Section 532 expands existing authority of WMD-CSTs
to prepare for, or respond to, emergencies involving
weapons of mass destruction and terrorist attacks to
include those occurring in Canada and Mexico.
Authorizes the use of WMD-CSTs to prepare for, or
respond to, two new categories of events—(a) the
release of nuclear, biological, radiological, or toxic or
poisonous chemical materials and (b) natural or
manmade disasters—that occur in the United States,
Canada, or Mexico and that result in, or could result in,
in catastrophic loss of life or property.
Conference
The Senate receded; sec. 527 reflects the House
position.
Discussion: Some have argued that WMD-CSTs, with their sophisticated equipment, should be available to respond to other types of emergencies
as well. However, expanded authority may generate higher workloads for the limited number of teams that exist and may necessitate a modified
training regimen. The House and Senate bills are in agreement on expanding the authority of WMD-CSTs to respond to two new types of events—
manmade and natural disasters, and the release of certain hazardous materials, which result in or could result in catastrophic loss of life or
property. However, the Senate provision enabling the teams to respond to events in Mexico and Canada has no House equivalent.
Reference(s): None.
CRS POC: (name redacted) at 7-.... or (name redacted) at 7-.....
CRS-29
Modification of Presidential Reserve Call Up Authority
Background: One of the statutory authorities for involuntarily ordering Reserve Component personnel to active duty, codified at 10 U.S.C. 12304,
is commonly referred to as Presidential Reserve Call-up authority (PRC). Currently, PRC allows the President to activate certain reservists for a
period of up to 270 days for specified purposes. However, one paragraph of the statute (12304(c)) specifically prohibits the President from using
this authority to perform “any of the functions authorized by Chapter 15 or section 12406 of this title” (related to suppressing insurrection) or for
“providing assistance to either the Federal Government or a State in time of a serious natural or manmade disaster, accident, or catastrophe.”
House (H.R. 5122)
Senate (S. 2766)
Conference
Section 511 permits the use of personnel activated
under 10 U.S.C. 12304 to respond to “a serious natural
or manmade disaster, accident, or catastrophe that
occurs in the United States, its territories and
possessions, or Puerto Rico.” It also changes the
maximum length of duty under 10 U.S.C. 12304 from
270 to 365 days and requires that consideration be given
to several factors before activating individuals, in order
to ensure equitable sharing of the burden of activation.
Section 1042 repeals 10 U.S.C. 12304(c), thereby
removing the prohibition on the use of reservists
activated under this authority to suppress insurrection
or respond to disasters, accidents, and catastrophes. It
also amends 10 U.S.C. 333 to provide authorization for
the President to use the armed forces to restore public
order and enforce the law in specific circumstances
following a natural disaster, epidemic, public health
emergency, terrorist attack, or other condition.
Sec. 522 permits the President to order reservists to be
activated without their consent for 365 days. Sec. 1076
amends the “Insurrection Act” (Chapter 15, Title 10,
USC) to authorize the President, as a result of natural
disaster, terrorist incident, serious health emergency,
etc., in which domestic violence occurred to such an
extent that the constituted authorities of the state were
unable to maintain public order and the violence
obstructed the execution of Federal law or impeded the
execution of the laws so as to deprive people of
Constitutional rights, to use the armed forces, including
the National Guard in Federal service. The President is
required to notify Congress of such actions. The
amendment further authorizes the President to direct
the Secretary of Defense to provide supplies, services
and equipment in major public emergencies, under
certain conditions and subject to certain restrictions.
Finally, 10 USC 12304(c)(1) is amended to exempt
functions performed under the authority of the
Insurrection Act and 10 USC 12406 from the
prohibition contained therein.
Discussion: The conference report extends the period that reservists can be activated. It modifies the “Insurrection Act” to authorize the President
to, among other things, call the reserves, including the National Guard in Federal Service, in certain situations in which domestic violence
occurred to such a degree that the constituted state authorities were unable to maintain public order. Subject to certain restrictions, the Secretary of
Defense may be ordered to provide material support or services in such situations.
Reference(s): CRS Report RL30802, Reserve Component Personnel Issues: Questions and Answers, by (name redacted).
CRS POCs: Charles Henning at 7-.... or (name redacted) at 7-.....
CRS-30
Revision in Computation of Disability Retired Pay Formula for Certain
Reserve Component Members
Background: A servicemember’s “years of service” can be an important factor in determining the amount of disability retired pay. Under current
law, the amount of disability retired pay is based on either disability rating or years of service, whichever produces the higher payment. Years of
service is calculated in accordance with the provisions of 10 U.S.C. 1208. For regular component personnel, who are on duty every day of the
year, this provision essentially awards a year of service for each year of duty. For reserve component personnel, who usually do not serve on duty
every day of the year, years of service are calculated by a more complex formula. To simplify somewhat, the reserve formula totals up reserve
training assemblies attended and days of active duty service performed and divides by 360, to produce the number of “years of service.” Given the
less than full-time nature of normal reserve service, this means that an individual who has been serving in the reserves for 20 years may only have
four or five “years of service” as calculated by 10 U.S.C.1208. As a result, the years of service calculation will almost always be less beneficial to
a reservist than the disability rating calculation for disability retired pay.
House (H.R. 5122)
Section 643 authorizes “years of service” to be
calculated under 10 U.S.C. 12732 for reserve
component members who are granted disability
retirement, or who have been placed on the temporary
disability retired list, and whose disability resulted in the
award of a Purple Heart.
Senate (S. 2766)
No similar provision
Conference
No language reported. Conferees believed that this issue
should be reviewed and directed the Secretary of
Defense to submit a report by February 1, 2007.
Discussion: Title 10 U.S.C. 12732 awards a “year of service” for any year in which a reserve component member earns 50 “points.” Reservists
earn 15 points per year for being a member of the Selected Reserve, one point for each unit training assembly (UTA), and one point for each day
of active duty (including annual training); points can also be earned by completing certain correspondence courses. As participating reservists
typically earn more than 50 points each year, this provision would generally have the effect of awarding a “year of service” for retired pay
calculations for each year of reserve service, provided the qualifying disability was incurred in such a manner that it merited the award of a Purple
Heart (i.e., for injuries sustained in combat).
Reference(s): CRS General Distribution Memo, Disability Benefits Provided by the Departments of Defense and Veterans Affairs, February 18,
2005.
CRS POCs: Charles Henning at 7-.... or (name redacted) 7-.....
CRS-31
Tricare Benefits for Non-Activated Members of the Selected Reserve
Background: Until quite recently, non-activated reservists had limited access to Tricare for themselves and no access for their families. This
recently began to change. The 108th Congress passed legislation allowing reservists who had served on active duty in support of a contingency
operation since September 11, 2001, and who agreed to continue serving in the Selected Reserve, to enroll themselves and their families in Tricare
Standard. The premium for this coverage was set at 28% of the cost of the coverage. The 109th Congress established two new “tiers” of
eligibility—one for those who are unemployed, ineligible for employer provided health care coverage, or self-employed (premiums set at 50% of
cost), and one for those who did not otherwise qualify (premiums set at 85% of cost)—provided the member agreed to continue serving in the
Selected Reserves. These new tiers effectively extend access to Tricare to all members of the Selected Reserve and their family members, though
at different premium levels.
House (H.R. 5122)
Senate (S. 2766)
Conference
Section 709 would repeal the three-tiered cost share
system established in the first session of the 109th
Congress and instead provide Tricare Standard coverage
to nearly all non-activated members of the Selected
Reserve and their families, with premiums set at 28% of
cost. However, reservists who are federal employees
entitled to coverage under the Federal Employees
Health Benefits Program would not be eligible.
Section 708 makes an “employee of a business with 20
or fewer employees” eligible for Tricare coverage in the
50% premium category. It also lowers the premium for
those in the highest premium category from 85% to
75%.
Sec. 706 extends access to Tricare to all Reservists
(except those eligible for health benefits under chapter
89 of Title 5) with the requirement that they pay 28% of
the estimated premiums (see above).
Discussion: The House provision would repeal the three-tier system for non-activated reservists (with premiums set at 28%, 50%, and 85%) and
replace it with a single-tier system (with premiums set at 28%) for nearly all non-activated reservists no later than October 1, 2007. The House
provision would also eliminate the requirement that reservists agree to continue serving in the Selected Reserves for a given period of time in order
to qualify for this benefit; instead, eligibility for the benefit would simply terminate upon departure from the Selected Reserve. The Senate
provision would maintain the three-tier system but add employees of small businesses to the middle-tier (i.e., those with premiums set at 50%) and
lower the premiums paid in the highest premium tier from 85% to 75% of cost.
Reference(s): CRS Report RL33537, Military Medical Care: Questions and Answers, by (name redacted), and CRS Report RL30802,
Reserve
Component Personnel Issues: Questions and Answers, by (name redacted).
CRS POCs: (name redacted) at 7-.... or Richard Best at 7-.....
CRS-32
Modifying Reserve Retirement Authorities
Background: Active duty personnel are eligible for full retirement benefits, including retired pay and access to Tricare, after 20 years of active
duty, regardless of their age. Reservists are also eligible to retire after completing 20 years of qualifying service; however, they do not receive
retired pay and access to retiree health care benefits until age 60. In recent years, a number of legislative proposals have been introduced to either
eliminate the minimum age at which retired reservists can draw retired pay and access military retiree health care benefits, to lower it to age 55 or
to lower it to some point below 60 based on the amount of active duty performed .
House (H.R. 5122)
No similar provision
Senate (S. 2766)
Section 653 reduces the age for receipt of retired pay by
three months for each aggregate of 90 days of specified
duty performed in any fiscal year after September 11,
2001. Specified duty includes active duty or active
service under certain provisions of Title 10 (sections
688, 12301(a), 12301(d), 12302, 12304, and 12406), Title
15 (any section), and Title 32 (section 502(f), if
responding to a national emergency declared by the
President and supported with federal funds). Eligibility
age for retired pay cannot be reduced below age 50.
Maintains age 60 as the minimum age for reserve
retirees to access retiree health care benefits.
Conference
No language was reported.
Discussion: This provision is narrower in scope than some other legislative proposals, such as those that would have lowered the age for receipt of
retired pay and retiree health care benefits to 55 for all reservists. This provision would reduce the age for receipt of retired pay for a specified
population of reservists, while maintaining it at age 60 for others. Additionally, it maintains at 60 the age at which reserve retirees can access
retiree health care benefits. The reserve population eligible to receive retired pay at a reduced age would be those who have performed active duty
or active service under the specified activation authorities since September 11, 2001. These reservists would have the age at which they can draw
retired pay drop by three months for each aggregate of 90 days of such service performed.
Reference(s): CRS Report RL30802, Reserve Component Personnel Issues: Questions and Answers, by (name redacted).
CRS POCs: Charles Henning at 7-.... or (name redacted) at 7-.....
CRS-33
Role of National Guard Bureau and Status of National Guard Bureau Chief
Background: There have been long-standing tensions between the senior leadership of the military services and their respective reserve
components regarding policy and resource allocation decisions. This conflict resurfaced over the past year with respect to several decisions that
directly affected the Army and Air National Guard. In addition, the devastation caused by Hurricane Katrina has generated great interest in
revamping the way in which the federal and state governments prepare for and respond to disasters or other catastrophic events. Modifying the role
that the National Guard might play in future events has been an area of particular area of interest, given its unique status as both a state and federal
force. The National Defense Enhancement and National Guard Empowerment Act (H.R. 5200/S. 2658), introduced in April 2006, is one approach
to these issues. It would make major changes in the role of the National Guard Bureau (NGB) and the authority of the Chief of the National Guard
Bureau (CNGB). Specifically, it would:
(1) change the NGB from a “joint bureau of the Department of the Army and the Department of the Air Force” to a “joint activity of the
Department of Defense”;
(2) modify current statutory language specifying that the NGB serve as the channel of communications between the (a) the Departments of the
Army and Air Force and (b) the states on all matters pertaining to the National Guard, to specify that the NGB will serve as the channel of
communications between (a) the Secretary of Defense, the Joint Chiefs of Staff, and the commanders of the combatant commands for the United
States, (b) the Departments of the Army and Air Force, and (c) the states on all matters pertaining to the National Guard;
(3) modify current statutory language to specify that the CNGB serves as the principal advisor to the Secretary of Defense and Chairman of the
Joint Chiefs of Staff on National Guard matters, in addition to the CNGB’s current duties as principal advisor to the Secretary of the Army, Chief
of Staff of the Army, Secretary of the Air Force, and Chief of Staff of the Air Force on these matters;
(4) designate the CNGB as a member of the Joint Chiefs of Staff (JCS), with all the attendant duties designated in law for members of the JCS,
including the ability to attend JCS meetings and to provide advice and opinions to the President, the Secretary of Defense, the National Security
Council, and the Congress as specified by 10 U.S.C. 151;
(5) prescribe the grade of the CNGB as general (i.e., a four-star general), rather than the current grade of lieutenant general (i.e., a 3-star general);
(6) modify the statutory authority which codifies the functions of the NGB so that the Secretary of Defense, in consultation with the Secretary of
the Army and the Secretary of the Air Force, is responsible for developing the NGB charter, rather than the Secretary of the Army and the
Secretary of the Air Force as currently specified;
(7) add a new function which the NGB charter must cover: “facilitating and coordinating with other federal agencies, and with the several states,
the use of National Guard personnel and resources for and in contingency operations, military operations other than war, natural disasters, support
of civil authorities, and other circumstances”;
CRS-34
(8) give the CNGB the responsibility of identifying gaps between federal and state capabilities to prepare for and respond to emergencies, and to
make recommendations to the Secretary of Defense on National Guard programs for military assistance to civil authorities (MACA) which can
address these gaps. To fulfill these duties, the legislation would require the CNGB, in consultation with the various state Adjutants General, to
assume the following responsibilities: validate requirements of the states and territories with respect to MACA; develop training and doctrine
relating to the provision of MACA; acquire equipment and supplies for the provision of MACA; assist the Secretary of Defense in preparing
budget materials for training and equipping the National Guard for purposes of MACA and other domestic operations; administer funds provided
to the National Guard for MACA; and carry out other responsibilities related to the provision of MACA as specified by the Secretary of Defense.
In carrying out these duties, the legislation would require the Chairman of the JCS to assist the CNGB, and require the CNGB to consult with the
Secretaries of the Army and the Air Force;
(9) require that budget justification documents submitted to the Congress in support of the President’s budget specify separate amounts for training
and equipping the National Guard for MACA and other domestic operations. Require that the amounts specified in these documents be sufficient
for the purposes of developing and implementing doctrine and training requirements, and for acquiring equipment and supplies, for such MACA
and domestic operations;
(10) require the Secretary of Defense, to the extent practical, to prevent any increase in National Guard personnel to address administrative or
other requirements arising out of this legislation;
(11) require the CNGB to submit an annual report to Congress on (a) the requirements of the states and territories related to MACA which the
CNGB validated during the previous fiscal year, (b) those requirements for which funding will be requested in the next budget, and (c) those
requirements for which funding will not be requested in the next budget;
(12) establish within the Joint Staff an Assistant to the Chairman of the JCS for Reserve Matters, who would be an officer of the Army Reserve,
Navy Reserve, Air Force Reserve, or Marine Corps Reserve and hold the grade of major general or rear admiral, and who would advise the
Chairman on matters relating to the reserves;
(13) require the Secretary of Defense to establish guidance to ensure that, to the maximum extent practical, reserve component officer
representation on the Joint Staff is commensurate with the role of the reserve components in the total force;
(14) state that it is the sense of Congress that whenever officers are considered for promotion to lieutenant general or vice admiral on the active
duty list, reserve component officers should are eligible for promotion to this grade should be considered for promotion; require the Secretary of
Defense to submit a proposal to Congress on how best to achieve this objective; and require the President, when nominating any officer on the
active duty list to lieutenant general or vice admiral, to submit to Congress a certification that all reserve officers who were eligible for promotion
to that grade were considered in the nomination process; and
(15) require that the position of Deputy Commander of U.S. Northern Command be a National Guard officer eligible for promotion to lieutenant
general.
CRS-35
House (H.R. 5122)
Senate (S. 2766)
Conference
Section 594 requires the Commission on National
Guard and Reserves to study “the advisability and
feasibility of implementing the provisions of H.R. 5200 of
the 109th Congress” and “as an alternative to
implementation of the provisions of [H.R. 5200] that
provide for the Chief of the National Guard Bureau to
be a member of the Joint Chiefs of Staff and hold the
grade of general, the advisability and feasibility of
providing for the Chief of the National Guard Bureau to
hold the grade of general in the performance of the
current duties of that office.”
Section 932 and 933 contain some, but not all, of the
provisions of The National Defense Enhancement and
National Guard Empowerment Act (S. 2658). Section
932 has provisions virtually identical to items 1-3, 5-7,
and 10 mentioned above. Section 932 also has a
provision similar to item 8, above, but omits the
portions related to acquiring equipment and supplies for
the provision of MACA and assisting the Secretary of
Defense in preparing budget materials related to MACA
and other domestic operations. Section 932 has a
section similar to item 11, but omits the reporting
requirements related to budget content. Section 933 is
virtually identical to item 15. Items 4, 9, and 12-14 are
not included.
Sec. 528 provides that the Commission on National
Guard and Reserves is to submit its final report not later
than January 31, 2008. Sec. 529 includes a number of
additional matters to be reviewed by the Commission,
including provisions of H.R. 5200 and S. 2658, the grade
of the Chief of the National Guard, the proposed
requirement that the position of Deputy Commander,
U.S. Northern Command be filled by a National Guard
officer, and the question of whether making the Chief of
the National Guard Bureau the principal adviser to the
Secretary of Defense and the Chairman of the JCS on
National Guard matters would have the effect of
establishing the National Guard as a separate service. An
interim report on these proposals is to be submitted by
March 1, 2007.
Discussion: Supporters of H.R. 5200/S. 2658—including representatives of the Adjutants General Association of the United States and the
National Guard Association of the United States—have argued that this legislation will give the National Guard a greater and much deserved role
in the national security decision-making process, thereby avoiding or minimizing the policy and resource allocation conflicts that have occurred in
the past. Deputy Secretary of Defense Gordon England recently voiced opposition to this legislation during testimony before the House Armed
Services Committee (June 13, 2006, hearing on National Guard Enhancement). One of his primary objections was that the Army National Guard is
an integral part of the Army, and the Air National Guard is an integral part of the Air Force; this legislation, he argued, could damage that
relationship and lead to these organizations becoming less integrated with the Army and Air Force. Additionally, he argued that the legislation has
not been adequately studied and could have negative unforeseen consequences. The House version of the NDAA would have directed the
Commission on the National Guard and Reserve to study H.R. 5200 and an alternative proposal which would have simply elevated the CNGB to
the rank of four-star general. The Senate version of the NDAA contained a scaled-back version of S. 2658 which omitted some of the most
controversial provisions of that bill (for example, the provision making the CNGB a member of the JCS). Nonetheless, the Senate provisions
would still have made substantial changes in the role of the NGB and the authority of the CNGB. The Conference opted for additional study of
these issues by the Commission on the National Guard and Reserve with a final report to be submitted by early 2008.
Reference(s): None.
CRS POCs: Charles Henning at 7-.... or (name redacted) at 7-.....
CRS-36
The FY2007 National Defense Authorization Act
Author Contact Information
(name redacted), Coordinator
Specialist in Military Manpower Policy
[redacted]@crs.loc.gov, 7-....
(name redacted)
Specialist in Military Manpower Policy
[redacted]@crs.loc.gov, 7-....
(name redacted)
Specialist in National Defense
[redacted]@crs.loc.gov, 7-....
(name redacted)
Specialist in Military Manpower Policy
[redacted]@crs.loc.gov, 7-....
Congressional Research Service
37
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