U.S. GOVERNMENT PUBLISHING OFFICE

28–396 PDF WASHINGTON : 2018

S. HRG. 113–884 

ACCESS TO JUSTICE FOR THOSE WHO SERVE 

HEARING 

BEFORE THE

SUBCOMMITTEE ON OVERSIGHT, 

FEDERAL RIGHTS AND AGENCY ACTION 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

MARCH 27, 2014 

Serial No. J–113–55 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

KRISTINE LUCIUS, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 

SUBCOMMITTEE ON OVERSIGHT, FEDERAL RIGHTS AND AGENCY ACTION

RICHARD BLUMENTHAL, Connecticut, Chairman 

PATRICK J. LEAHY, Vermont 

AMY KLOBUCHAR, Minnesota 

ORRIN G. HATCH, Utah, Ranking Member 

JEFF FLAKE, Arizona 

SAM SIMON, Democratic Chief Counsel 

TOM JIPPING, Republican Chief Counsel 
(III) 

C O N T E N T S 

MARCH 27, 2014, 3:06 P.M. 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Blumenthal, Hon. Richard, a U.S. Senator from the State of Connecticut ........ 1 

prepared statement .......................................................................................... 104 

Flake, Hon. Jeff, a U.S. Senator from the State of Arizona, 

prepared statement .......................................................................................... 110 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 3 

WITNESSES 

Witness List ............................................................................................................. 39 

Alexander, Dwain, II, Esq., Captain, U.S. Navy, Retired, and Navy Legal 

Assistance Attorney, U.S. Navy, Region Legal Service Office, Mid-Atlantic, 

Norfolk, Virginia .................................................................................................. 6 

prepared statement .......................................................................................... 55 

attachments—redacted ..................................................................................... 59 

Davis, Major General Andrew, Executive Director, Reserve Officers Association of the United States, Washington, DC ....................................................... 22 

prepared statement .......................................................................................... 83 

de Planque, Ian, Deputy Legislative Director, The American Legion, Washington, DC ............................................................................................................. 14 

prepared statement .......................................................................................... 101 

Kantwill, Colonel Paul, Director, Office of Legal Policy, Office of the Under 

Secretary of Defense, Personnel and Readiness, Department of Defense, 

Arlington, Virginia ............................................................................................... 4 

prepared statement .......................................................................................... 40 

Odom, John S., Jr., Colonel, USAF JAGC, Retired, Jones & Odom, LLP, 

Shreveport, Louisiana .......................................................................................... 18 

prepared statement .......................................................................................... 70 

Savage, Lieutenant Kenneth ‘‘Gene’’, U.S. Naval Reserve, Memphis, Tennessee .................................................................................................................... 23 

prepared statement .......................................................................................... 96 

QUESTIONS 

Questions submitted to Capt. Dwain Alexander, II, by Senator Klobuchar ....... 112 

Questions submitted to Maj. Gen. Andrew Davis by Senator Franken .............. 114 

Questions submitted to Maj. Gen. Andrew Davis by Senator Klobuchar ........... 113 

Questions submitted to Ian de Planque by Senator Blumenthal ......................... 116 

Questions submitted to Ian de Planque by Senator Klobuchar ........................... 113 

Questions submitted to Col. Paul Kantwill by Senator Klobuchar ..................... 112 

Questions submitted to Col. John S. Odom, Jr., by Senator Franken ................ 115 

Questions submitted to Col. John S. Odom, Jr., by Senator Klobuchar ............. 113 
Page

IV 

ANSWERS 

Joint responses of Capt. Dwain Alexander, II, and Col. Paul Kantwill to 

questions submitted by Senator Klobuchar ....................................................... 118 

[Note: At the time of printing, after several attempts to obtain responses 

to the written questions, the Committee had not received responses from 

Maj. Gen. Andrew Davis.] 

[Note: At the time of printing, after several attempts to obtain responses 

to the written questions, the Committee had not received responses from 

Ian de Planque.] 

Responses of Col. John S. Odom, Jr., to questions submitted by Senator 

Franken ................................................................................................................. 121 

Responses of Col. John S. Odom, Jr., to questions submitted by Senator 

Klobuchar .............................................................................................................. 120 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

Casey, Hon. Robert P., Jr., a U.S. Senator from the State of Pennsylvania, 

‘‘Department of Veterans Affairs Backlog,’’ statement ..................................... 123 

Casey, Hon. Robert P., Jr., a U.S. Senator from the State of Pennsylvania, 

et al., letter to President Barack Obama on the Department of Veterans 

Affairs disability claims backlog, April 29, 2013 ............................................... 127 

Heller, Hon. Dean, a U.S. Senator from the State of Nevada, statement .......... 124 

Military Officers Association of America (MOAA), Alexandria, Virginia, statement ...................................................................................................................... 132 

National Employment Lawyers Association (NELA), Kathryn S. Piscitelli, 

Orlando, Florida, statement ................................................................................ 138 

National Employment Lawyers Association (NELA), San Francisco, California, and Washington, DC, statement ............................................................. 137 
(1) 

ACCESS TO JUSTICE FOR THOSE WHO SERVE 

THURSDAY, MARCH 27, 2014 

UNITED STATES SENATE, 

SUBCOMMITTEE ON OVERSIGHT, FEDERAL RIGHTS AND

AGENCY ACTION, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 3:06 p.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Richard Blumenthal, 

Chairman of the Subcommittee, presiding. 

Present: Senators Blumenthal, Franken, and Hatch. 

OPENING STATEMENT OF HON. RICHARD BLUMENTHAL, 

A U.S. SENATOR FROM THE STATE OF CONNECTICUT 

Chairman BLUMENTHAL. The hearing will come to order, and I 

want to thank everyone for joining us today on this very, very important topic, very fittingly my last hearing as Chairman of this 

Subcommittee, and I want to thank our Ranking Member, Senator 

Hatch, for his many courtesies and all of his patience over the time 

that I have chaired this Subcommittee. 

The critical subject before us is the rights of our servicemembers 

and making sure that they are adequately protected. I know everybody here and countless others outside of this building feel the 

same way as we do, that those rights have to be protected, that 

they are not only worthy of protection but essential. And over the 

course of this Congress, we have been able to explore a variety of 

issues related to the Federal Government’s duty to protect its citizens. I have been proud of that work. None is more important than 

this one. And I want to thank Senator Leahy for giving me this opportunity on this Subcommittee. 

Today’s hearing is the product of a proud tradition and also a 

disappointing reality. The proud tradition is Congress’ bipartisan 

support and approval of legislation to protect our servicemembers. 

And the unfortunate and very disappointing reality is that too 

many of the rights enshrined in those statutes are effectively dead 

letter because of structural and procedural barriers to enforcement. 

When servicemembers cannot find lawyers to take their cases, they 

cannot get a ruling on the merits even when they make it to court, 

and they cannot receive adequate compensation even when they 

win, in that case the laws on the books are not as strong or even 

adequate as they should be. 

So we are here about the Uniformed Services Employment and 

Reemployment Rights Act, which is a classic example. USERRA, as 
2 

it is called, passed the House and the Senate by a voice vote, believe it or not. It stands for the simple proposition that American 

workers should not be discriminated against because they have 

chosen to serve in our Nation’s Armed Forces. It is hard to imagine 

a less controversial principle. 

And yet USERRA has some of the weakest remedies, some of the 

very least adequate remedies of any comparable statute. A member 

of the National Guard or Reserve who is fired because they are deployed, they stand to win only back pay, reinstatement, and maybe 

some compensation for lost health care or pension benefits. If they 

experience prolonged unemployment—if they lose their home, their 

car, their credit—a court award will not even come close to making 

them whole. 

So employers know they face such a small punishment when 

they violate USERRA; they have little incentive to comply with the 

law. And even when a servicemember can show that an employer 

willfully violated the law, which is difficult to show, that 

servicemember can expect only to collect double whatever damages 

they would otherwise receive. In many cases, even this amount will 

not fully compensate the servicemember, and it rarely provides an 

adequate deterrent for the employer. 

There are other ways that USERRA is weak in the remedies it 

affords. I am going to put my full statement in the record. But I 

want to say that servicemembers are uniquely vulnerable in this 

respect to abusive practices, and it includes abusive lending practices in the financial marketplace. 

Congress has repeatedly acted to protect servicemembers, and it 

has done so again in a bipartisan fashion. The Servicemembers 

Civil Relief Act, like USERRA, which protects servicemembers from 

foreclosure and default judgments while they serve, passed the 

Senate by voice vote. The House passed the bill 425-0. The Military 

Lending Act—better known as the Talent amendment—was a bipartisan proposal that was rolled into the National Defense Authorization Act without controversy. And it was intended to protect 

servicemembers from loan shark interest rates of 30-plus percent. 

These statutes have made a difference, but commonsense reforms 

are needed to enable them to live up to their goals. And 

servicemembers saddled with unfair loans too often find these protections intended to protect them from debt collector harassment 

simply do not work. 

So while it would be illegal for a third-party debt collector to harass a servicemember by going to the servicemember’s commanding 

officer, creditors can and do call commanding officers directly, 

sometimes scaring servicemembers into debts they do not even 

owe. 

I have called on the Consumer Financial Protection Bureau to 

help address this problem, and I hope the administration shares 

my view that servicemembers must be protected. 

I hope that regulations will be issued on a timely basis by the 

Department of Defense to make these laws more effective and more 

enforceable and that servicemembers will be provided with stronger protections as a result. 

[The prepared statement of Chairman Blumenthal appears as a 

submission for the record.] 
3 

Chairman BLUMENTHAL. So I want to thank our first panel for 

being here today. Before I swear you in for your testimony, I want 

to thank Senator Hatch again and give him the opportunity to 

make an opening statement. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, 

A U.S. SENATOR FROM THE STATE OF UTAH 

Senator HATCH. Thank you, Mr. Chairman. I know this is the 

last hearing for you as the Chairman of this Subcommittee. I have 

enjoyed working with you, and I am sure you will take your determination and focus with you as you chair a Subcommittee on the 

Armed Services Committee. 

The hearing today focuses on our Nation’s veterans to whom we 

owe so much and for whom we sometimes do too little. The list of 

issues and challenges facing veterans is long, and I know that you, 

Mr. Chairman, will be looking today at areas such as employment 

and lending. I understand that you have a bill that has been referred to the Veterans’ Affairs Committee. 

Another and perhaps more immediate challenge for veterans is 

the difficulty and delay in receiving benefits that Federal law provides. In particular, servicemembers who come back with disabilities are entitled to disability benefits when they meet the statutory burden of proof. The delay in granting those benefits is a disgrace. 

Last year, Mr. Chairman, you and I joined 65 of our colleagues 

in signing a letter to President Obama on this precise issue. I have 

that letter here, and I would ask consent that it be made part of 

the record. 

Chairman BLUMENTHAL. Without objection. 

[The letter appears as a submission for the record.] 

Senator HATCH. In that letter we wrote, ‘‘This country must be 

grateful for the safe homecoming of every single man and woman 

who has served in harm’s way. Our joy at their return must be reflected in our commitment to help all of those who serve.’’ 

I am glad that the Deputy Legislative Director from the American Legion could be with us today to discuss this issue. The name 

of this Subcommittee includes ‘‘Agency Action.’’ In previous hearings, Mr. Chairman, you have pointed out that executive agencies 

are sometimes inactive, so I think it is appropriate with today’s 

focus on veterans to include the issue on which there is such strong 

bipartisan support. 

Now, Mr. Chairman, Senator Flake was unable to be here today, 

so he asked me if you would be good enough to put his statement 

in the record. 

Chairman BLUMENTHAL. Without objection. 

Senator HATCH. He says in the first paragraph, he says, ‘‘While 

I am pleased the Senate is focusing on our veterans today, I am 

disappointed more attention is not being paid to the failures of the 

Veterans Administration to provide veterans their medical services 

and benefits. Congress has a responsibility to address this problem 

since the administration is apparently failing to do so.’’ And I 

would ask that the rest of it be placed in the record at this point. 

[The prepared statement of Senator Flake appears as a submission for the record.] 
4 

Senator HATCH. Mr. Chairman, I would also ask that—well, I 

have already put this in. 

All right. Well, I just want to thank you for holding this hearing, 

and I want to thank all these witnesses for appearing with us and 

helping us on these very important issues, and we really appreciate 

what you do. Thanks so much. 

Chairman BLUMENTHAL. Thank you. 

Senator Franken, did you want to make any opening remarks? 

Senator FRANKEN. No, that is okay. Why don’t we go right to the 

testimony? 

Chairman BLUMENTHAL. Great. Let me just introduce before 

swearing them in our two witnesses this afternoon. They are, first 

of all, Colonel Paul Kantwill, who is Director of the Office of Legal 

Policy of the Under Secretary of Defense. He has an extraordinary 

record of service to our Nation in uniform, including in Afghanistan 

and the Persian Gulf War, and is the recipient of the Legion of 

Merit, two Bronze Star medals, and numerous other military 

awards and decorations. As Director of the Office of Legal Policy 

in the Office of Under Secretary of Dodd-Frank (Personnel & Readiness), he is the principal advisor to the Secretary of Defense and 

the Under Secretary of Defense on legal policy matters, including 

the issues that we have before us today. 

Dwain Alexander is the legal services attorney for the United 

States Navy. He is a retired United States Navy Captain also with 

a record of extraordinary service. He is the senior supervisory civilian attorney and subject matter expert for the Region Legal Service 

Office, Mid-Atlantic, in Norfolk, Virginia. 

We thank both of you for being here today, and I am going to 

ask you, as is our custom in this Committee, to please rise and 

take an oath. 

Do you affirm that the testimony that you are about to give before the Committee will be the truth, the whole truth, and nothing 

but the truth, so help you God? 

Colonel KANTWILL. I do. 

Captain ALEXANDER. I do. 

Chairman BLUMENTHAL. Thank you. And if you have an opening 

statement, we would be very pleased to hear it. 

STATEMENT OF COLONEL PAUL KANTWILL, DIRECTOR, OFFICE OF LEGAL POLICY, OFFICE OF THE UNDER SECRETARY 

OF DEFENSE, PERSONNEL AND READINESS, DEPARTMENT 

OF DEFENSE, ARLINGTON, VIRGINIA 

Colonel KANTWILL. Thank you and good afternoon, Mr. Chairman, Ranking Member Hatch, and Members of the Committee. It 

is an honor to appear before you and to represent the Department 

of Defense and all of our great people. On behalf of the Department, I thank you for your assistance and for your support in protecting our servicemembers’ access to their Federal rights and for 

the opportunity to address you today regarding those rights in the 

consumer financial marketplace. 

I will discuss first the Servicemembers Civil Relief Act. I will 

then discuss other challenges confronting servicemembers and their 

families in today’s marketplace, focusing on issues and challenges 
5 

relating to the Military Lending Act, as the Department sees this 

as one of the biggest current financial challenges facing our force. 

The Department recognizes and appreciates fully the critical importance of the SCRA. No other statute provides the breadth of 

benefits and protections for servicemembers that the SCRA does, 

and over its long history of more than 70 years now, it has lessened 

some of the very many significant burdens associated with military 

service. 

Congress has continued to play a critical role in protecting our 

servicemembers and their families, strengthening the Act and its 

protections in many ways, especially in recent years. 

It is with pride, therefore, that we assert that the current status 

of SCRA education, compliance, and enforcement is largely a ‘‘good 

news story.’’ We have all read accounts of mortgage foreclosure 

abuses, and we know well the ravages that the economic crisis and 

the burdens of more than 13 years of deployments have had on the 

financial fitness of military families. 

We believe, however, that we have been very effective in curbing 

foreclosure abuses against military personnel and their families. 

This is the result of much sustained and very hard work within the 

Department and with other governmental agencies and the financial industry. 

The Department is fortunate to enjoy a tremendous relationship 

with other Federal agencies relating to consumer law issues—the 

Department of Justice, the CFPB, and the Office of the Comptroller 

of the Currency, to name just a few. Federal enforcement actions 

brought by our colleagues at Justice have been swift and effective. 

We are pleased always to have the CFPB at our sides. State and 

local enforcement and compliance efforts are critical. 

There may still be, however, foreclosures out there, and we may 

yet to be out of the economic woods. Nor are we prepared to say 

that everything on the SCRA front is a completely rosy picture. We 

are looking closely, for example, at issues like the reduction of interest rates on student loans under the SCRA and are pleased to 

be joined in these efforts by the Department of Justice and by our 

friends at the CFPB and OSA. 

We also have concerns regarding waivers under the SCRA, a 

topic that my friend and colleague Dwain Alexander will speak to 

you about momentarily. 

There are other SCRA issues out there as well, and I am pleased 

that a great patriot and dear friend, Colonel (Retired) John Odom, 

will address that from a practitioner’s viewpoint on the second 

panel. 

Despite many of the successes we can cite on the SCRA front, 

however, we have concerns regarding small dollar lending and related products and services. Significant departmental, interagency, 

and congressional action resulted in the Military Lending Act more 

than 7 years ago, we have stamped out the majority of abuses in 

the areas regulated. Several years removed from its enactment, 

however, many parties, from services to State Attorneys General, 

have expressed concerns that the industry, including some unscrupulous lenders, have sought and are seeking to create products and 

services which fall outside of the MLA. This has not escaped our 

or Congress’ attention, and at your direction, the Department is 
6 

studying changes in the credit marketplace and their effects on 

servicemembers and their families. 

The Department’s Advanced Notice of Proposed Rulemaking was 

published in June of 2013. We received and analyzed responses to 

our Federal Register notice in order to obtain a broad basis of feedback from consumer advocates, financial industries, Federal and 

State regulators, and engaged citizens in order to determine the potential benefits, pitfalls, and consequences of extending the definitions in the regulation to cover additional forms of credit. 

The Department assembled the prudential regulators and the 

CFPB to explore potential revisions to the regulation. This group 

included a team of skilled economists, analysts, and drafters to assist us in the rulemaking. 

We remain committed to balancing regulation with education 

and assistance to maintain financial readiness, and the Department plans to maintain a steady approach to the implementing 

regulation to balance the protections offered through the regulation 

while sustaining access to helpful financial products. 

On behalf of the Department, I thank you for your assistance 

and support. It is my privilege to be before you, and I look forward 

to your questions. 

[The prepared statement of Colonel Kantwill appears as a submission for the record.] 

Chairman BLUMENTHAL. Thank you very much, Colonel 

Kantwill. 

Mr. Alexander. 

STATEMENT OF DWAIN ALEXANDER, II, ESQ., CAPTAIN, U.S. 

NAVY, RETIRED, AND NAVY LEGAL ASSISTANCE ATTORNEY, 

U.S. NAVY, REGION LEGAL SERVICE OFFICE, MID-ATLANTIC, 

NORFOLK, VIRGINIA 

Captain ALEXANDER. Chairman Blumenthal, Ranking Member 

Hatch, and distinguished Members of the Committee, I am honored 

and humbled to have the privilege of speaking before you and to 

represent the Navy’s Judge Advocate General’s Corps and our 

servicemembers we support. 

I am a civilian legal assistance attorney. My office supports mission readiness by addressing servicemembers’ legal issues. We provide wills, family law advice, but the issues that follow the 

servicemembers, the ones where we can make a change that helps 

today, are the consumer law issues—issues like those faced by the 

thousands of sailors who deploy with the USS George H.W. Bush 

strike group. Those sailors left their homes and affairs to tend to 

the Nation’s business. They were concerned about their families, 

their property, and the obligations they were leaving behind. 

Successful mission completion and a safe return depend upon 

their ability to focus on their duties. The Servicemembers Civil Relief Act’s purpose, its sole purpose, is to relieve servicemembers 

from civil distractions so that they can focus on defending the Nation. 

The SCRA is the advocates’ and the servicemembers’ most powerful legal readiness resource. Working with the SCRA, I have observed that our national defense comes at a cost to everyone. I see 

the anxiety in the deploying servicemember. I hear the stress from 
7 

the family members that are left behind. And I listen to business 

concerns that the servicemember may be unable to comply with an 

obligation or that additional costs may be incurred in resolving 

problems. The SCRA strikes a balance between those individual interests and the Nation’s need for a mission-ready, focused fighting 

force. 

There are several changes that would enhance the SCRA. Colonel Odom will address those later. But I am concerned that there 

is one change that, if not made, will allow the balance and the protections provided by the SCRA to be totally circumvented. That 

needed change is a prohibition of pre-dispute waivers. 

Section 517 of the SCRA allows the servicemember to waive any 

and all rights provided by the Act. The waiver provision can be 

beneficial. For instance, if the service had a beater that they left 

on the waterfront and that was towed, the SCRA would require 

that the towing company go to court before they could sell that vehicle. During that time it is earning fees that could exceed the 

value of the vehicle. If the servicemember waived his rights under 

the SCRA, that could be sold, saving both time, money, and expense for the servicemember. 

In that instance, though, the servicemember is aware of his 

rights. He is aware of the fact that there is a risk involved with 

this property, and he makes a knowing and voluntary choice to 

waive his rights. In fact, many States make voluntary and knowing 

act a requirement for a valid waiver, which is especially important 

considering that our servicemembers’ future, location, mission, and 

needs are subject to change with little notice. 

Contrast that scenario with the pre-dispute waiver used in contracts today. In markets with large military populations, residential leases will frequently contain an SCRA waiver. There are samples of several of these waivers attached to my formal written 

statement. The waivers are required at the inception of the contract, and they remove the right to reopen a default judgment, protection from eviction, and the right to terminate a lease. The 

servicemember who signs a pre-dispute waiver with a landlord will 

be denied his rights under the SCRA. This servicemember will be 

exposed to financial risks from the vacant property during the 8- 

month deployment, or he could be prevented from sending his family home to a more secure and supportive environment. The inability to challenge a default judgment could impact his security clearance and his mission readiness, and the emotional stress placed on 

the family from the situation can be devastating. 

Circumvention of these rights affords servicemembers through 

the pre-dispute waiver removes the balance created by the SCRA 

and shifts the entire burden for mission readiness to the individual 

servicemember. It effectively places command and control of the 

SCRA as a readiness tool in the hands of the company seeking to 

enforce the waiver. 

The application of pre-dispute waivers has the potential to undermine the SCRA and the national policy it supports. The pre-dispute waiver can be employed as burden-shifting and cost-savings 

measures by all types of businesses: mortgage lenders, banks, credit unions, subprime lenders, automobile dealerships, merchants, 

and others. In fact, after the JPMorgan Chase settlement with the 
8 

Department of Justice for violations of the SCRA, it requested that 

servicemembers waive all of their rights as a precondition for short 

sale assistance, with no guarantee that there would actually be a 

short sale. As they had encountered problems, it was easier to have 

the rights waived so they would not violate the law again than to 

comply. 

A company should not be allowed to undermine the important 

policy that the SCRA represents and determine that their needs 

are more important than the servicemember’s or the national defense. 

I thank you for your time and for the opportunity to speak before 

you. Thank you. 

[The prepared statement of Captain Alexander appears as a submission for the record.] 

Chairman BLUMENTHAL. Thank you. Thank you both for those 

excellent opening statements. 

Let me begin with the first round of questioning. I think we will 

allot 7 minutes to each of us. 

Colonel Kantwill, as you know, and as noted in your testimony, 

consumer credit lenders often can make minor changes, like the 

term of a loan by 1 day, and the servicemember loses MLA protection. I am happy here that the Department is writing new regulations to deal with these issues, and I am wondering if you could 

describe how quickly those regulations will be available and what 

the process will be going forward. 

Colonel KANTWILL. Yes, Senator, and I would first like to thank 

you and your staff and the Committee staff for holding this very 

important hearing. It has been wonderful working with all of them. 

They have been quite helpful, and the Department certainly appreciates it. 

Chairman BLUMENTHAL. Thank you. 

Colonel KANTWILL. As I indicated my statement, the Advanced 

Notice of Proposed Rulemaking was accomplished last summer, 

and since that time the drafting committee has been hard at work. 

We are at the stage now where the rule is very near finalization, 

and we are preparing now to post it in the Federal Register, which 

we hope to accomplish in certainly less than 60 days, for the comment period. And then we hope to finalize the rule by the end of 

this calendar year, so the end of September this year. So things are 

moving rapidly along. 

Chairman BLUMENTHAL. You know, and I do not mean this by 

any way critically, but for the average person out on the street, in 

fact, maybe the average servicemember, the end of the year looks 

a long ways away. And part of the reason that we are having this 

hearing—and we have held other hearings on other rules and rulemaking that seems to have been unfortunately delayed too long, 

and in many instances much longer than this rule—is because 

rules delayed are justice denied. And for servicemembers who are 

victims of these MLA abuses, that is a long time to wait for a rule 

that will protect them. 

I do not mean in any way to be critical of you personally or even 

the Department because I know that there are requirements under 

the Administrative Procedures Act that have to be followed. But I 
9 

wonder whether there is any possibility of accelerating that process. 

Colonel KANTWILL. Your point is well taken, Senator, and we recognize fully that each passing day potentially costs people money, 

anguish, et cetera. This has been a heavy lift, I must admit. It is 

a gargantuan task. We are very, very grateful for the assistance 

from the Federal Deposit Insurance Corporation, from members of 

the Federal Reserve Board, the OCC, the OSA, all of those folks. 

And we have been very careful, and we have been very considerate. 

We wanted this to be an open and transparent process. We wanted, 

Senator, to comply with all of the statutes and regulations. 

So we are moving and I pledge to you that we will move with 

all due consideration for the folks who need our assistance, and we 

will produce the best product we possibly can in the shortest possible amount of time. 

Chairman BLUMENTHAL. Thank you. And I appreciate that very 

welcome approach of wanting to do everything as possible as quickly as possible, with the knowledge that if it is not done right, it will 

be vulnerable to attack. 

Let me switch topics slightly. Have you or the Department given 

any consideration to incorporate financial training into mandatory 

training for the members of the Armed Forces—in other words, financial education as a required component for military training? 

Colonel KANTWILL. We have, Senator, and I am pleased to report 

that we do. We are now training people on financial awareness in 

very many respects, from even before the time that they enlist. So 

through our colleagues at the CFPB and the OSA, we have training 

programs consistent with the delayed entry program. 

We have financial education and training embedded into nearly 

every stage of training. We present it at basic training, at advanced 

individual training. It happens—it follows a servicemember, if you 

will, at each particular installation to which they are assigned. It 

is embedded into the pre-mobilization process and the post-mobilization process as well. 

We have individual—certainly we have classroom-type facilities 

where briefings are given. We also have assistance of people like 

Mr. Alexander, the boots on the ground, the attorneys who are 

helping them in the field. We have personal financial managers at 

each and every installation that provide them that sort of assistance as well. The legal assistance attorneys are very proactive with 

their preventive law programs. 

So I am pleased to report, Senator, that we think this is a very 

robust and successful program. 

Chairman BLUMENTHAL. Thank you. 

Mr. Alexander, do you think that reforms are needed to Section 

517 to improve protection for our servicemembers? And if so, what 

kinds of reform do you think would be advisable? 

Captain ALEXANDER. I think that as the Act currently stands, the 

ability to waive any and all rights before you know what rights you 

are waiving is hazardous for the servicemember and overly beneficial to the community. That balance-shifting problem exists. 

The idea that a pre-dispute waiver is acceptable is considered in 

other laws and banned, so there are laws that are already on the 

books where they say you cannot pre-dispute waive your rights 
10 

under the Employment Rights Act or civil rights laws. And I think 

that the policy expressed in the SCRA of providing for our national 

defense is an important enough policy that it also should have 

some protections from pre-dispute waivers. 

Chairman BLUMENTHAL. So that is the reform that you think is 

important? 

Captain ALEXANDER. On that issue, yes, sir. 

Chairman BLUMENTHAL. And what about other issues? What 

other issues do you think need to be addressed? 

Captain ALEXANDER. The waiver of the SCRA is a central problem. In contracts today, there are also arbitration provisions. Those 

provisions are essentially another form of waiver. If you can get 

into a contract signed to waive your rights, you can also get in a 

contract signed to this arbitration provision. And when you do that, 

you in effect waive your rights because you remove from consideration the rights you have under the SCRA, and that is an important problem. So putting in—allowing—or stopping pre-dispute arbitration provisions would also protect servicemembers. 

Chairman BLUMENTHAL. Do you know of individual circumstances where servicemen and -women have been harassed and 

you or your fellow advocates have been unable to protect them? 

Captain ALEXANDER. Yes, sir. Chairman, as you know, the Fair 

Debt Collection Practices Act protects people from third-party collection agencies and actions. However, the primary creditor has basically no restrictions, and so the ability of that party to pursue a 

collection action through the command and with the servicemember 

is present and threatening. 

Chairman BLUMENTHAL. So strengthening the Fair Debt Collection Practices Act also would be advised. 

Captain ALEXANDER. Yes. 

Chairman BLUMENTHAL. And do you have any specific suggestions about how it should be strengthened? 

Captain ALEXANDER. I think I should take that question for the 

record. 

Chairman BLUMENTHAL. Okay. 

[The information appears as a submission for the record.] 

Chairman BLUMENTHAL. Well, if I may suggest, maybe increasing the penalties and the specificity of prohibitions would be two 

areas that we might want to think about. Would you agree? 

Captain ALEXANDER. I would agree. The businesses make decisions sometimes on a cost/benefit analysis, and if the cost is too 

high, the risk too extreme, those decisions will not be made. 

Chairman BLUMENTHAL. Thank you. 

Senator Hatch. 

Senator HATCH. Well, thank you. I just want to thank both of 

you for your service and tell you we really appreciate your testimony here today. 

Thank you, Mr. Chairman. 

Chairman BLUMENTHAL. Thank you. 

Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman, for holding this 

hearing. 

Mr. Alexander, you just talked about pre-dispute arbitration 

clauses in contracts that essentially waive SCRA rights of our serv-
11 

icemen and -women. In December, I held a hearing on the Arbitration Fairness Act, a bill I introduced to prohibit the use of mandatory pre-dispute arbitration in employment and consumer and civil 

rights contracts and antitrust cases. That bill would reopen the 

courthouse doors to servicemembers whose rights are violated 

under a number of statutes that we’re discussing today—USERRA, 

SCRA, and the Military Lending Act, and others. I would invite my 

colleagues—in fact, I know the Chairman has cosponsored this 

piece of legislation. I would invite Senator Hatch to do so as well. 

I would also invite my colleagues to review the testimony of 

Vildan Teske. She is an attorney from Minneapolis who represents 

servicemembers. She testified and talked about how arbitration 

clauses effectively insulate corporations from accountability and 

block servicemembers from enforcing their rights. She shared several cases with us, including an SCRA case she filed on behalf of 

a soldier from Minnesota who was foreclosed upon while serving at 

Camp Anaconda in Balad, Iraq. 

The complaint said that the lender, the bank, submitted a false 

affidavit stating under oath that the bank knew the soldier was not 

in military service, and he was. So their affidavit was totally untrue under oath. 

Using that false affidavit, the lender got the sheriff to put the 

soldier’s house up for sale, and the lender ended up buying the 

house at auction for a fraction of the value of the house—while he 

was serving our country in Iraq. 

The soldier wanted to hold the bank accountable for its actions, 

and he wanted to make sure that other soldiers could protect their 

rights, too. So he filed a class action complaint. But buried in the 

soldier’s stack of mortgage documents was an arbitration clause 

which not only pushed the soldier out of court, but also required 

him to go it alone. He could not even do a class arbitration. 

To me, this is an outrage. It is no way to enforce the law. He 

wanted to go, and he wanted to make sure that other soldiers, 

other servicemen and -women knew that this was happening and 

be able to find other members that it happened to. 

Captain Alexander, what are your thoughts on this? You can 

elaborate on your written testimony that arbitration agreements— 

and just your testimony to the Chairman that arbitration agreements can be used to nullify the SCRA and put undue burdens on 

individual servicemembers. What do you think about this? 

Captain ALEXANDER. Senator Franken, the contracts that my clients see are sometimes pages long with very small print. Their 

preprinted portion is not negotiable for that servicemember, so the 

portion that contains the arbitration provision is really consideration for will that be in there or not and what it means is really 

understood by the servicemember when they are agreeing to these 

terms. You may be able to negotiate the price or the years or the 

interest. Those things may be somewhat negotiable. But the provisions for collection or dispute or other things that are in the contract are not negotiable. So finding it buried in the bottom of the 

contract, as Vildan Teske did, seems like something that would 

happen to most consumers and servicemembers today. 

The class action perspective, servicemembers are frequently relocating. They are a transient population. And so the ability to en-
12 

force the rights of many through the actions of one through class 

action would probably be beneficial to servicemembers, and that 

right is also gone. 

If you looked at the purpose of consumer laws and the SCRA, 

they do not represent—they do not protect consumers and 

servicemembers. They protect our economy. Consumer laws were 

written to protect our market economy from bad players, to keep 

things fair for the businesses that participate. And the SCRA was 

written to protect our Nation through providing for 

servicemembers. 

Those are big policies that are undermined by arbitration because you no longer have the individuals who are supposed to enforce those rights doing it. Consumers are able to enforce their 

rights under consumer laws when they can go to court to do that. 

When the arbitration provisions are in place, it takes away the 

venue decisions that might be discussed or would be available 

under normal law. It takes away the cost provisions that might be 

less under normal law. And it exposes the servicemember to the 

issues and things that they would not normally have to consider. 

We had a case recently where a servicemember did everything 

right. If he was my client or I was advising him, he did everything 

right. He saved his money. He bought a vehicle for cash. He bought 

a vehicle that met his needs, not his wants. He also bought a warranty to protect himself in case something went wrong. The vehicle 

was sold as is, and the dealer understood the condition of the vehicle because they had it on their lot and inspected it before they sold 

it to him. 

The warranty company refused to—the vehicle has failures later 

on that should have been covered. The warranty company failed to 

repair the vehicle, as would have been required, but it had an arbitration provision that required that this decision be considered in 

New York. It is a $4,000 vehicle. Everything happened in Virginia. 

But this case would have to be arbitrated in New York. And those 

are the type of issues that our servicemembers are facing that just 

takes this completely out of the consideration, not to mention that 

if the servicemember needed to have any forms of evidence or discovery in this process, that would not be available under arbitration. 

My main concern with arbitration, though, is that if you are a 

good business using the law as it was intended to be used, it may 

be not harmful at all. But my servicemembers encounter sometimes the worst, the least scrupulous business out there, and these 

businesses—car dealers, merchants selling anything or using arbitration provisions—to basically make a profit at the expense of the 

consumer and the servicemember. So they choose the arbitration, 

the provider of the service; they choose the venue where it is going 

to happen; they can then sell junk, commit fraud and misrepresentation, and say, ‘‘But you cannot sue me. There is an arbitration 

provision.’’ 

Senator FRANKEN. Right. 

Captain ALEXANDER. And that takes it out of our hands totally. 

Senator FRANKEN. So just one last yes-or-no question. In your 

view, would it benefit our servicemembers if Congress amended the 

Federal Arbitration Act to prohibit the use of mandatory pre-dis-
13 

pute arbitration in cases involving employment and consumer 

claims? 

Captain ALEXANDER. You want a ‘‘yes’’ or ‘‘no’’ answer? Yes. 

Senator FRANKEN. Okay. 

Chairman BLUMENTHAL. You can give a longer answer if you 

wish. 

Senator FRANKEN. Yes, how would it—— 

[Laughter.] 

Senator FRANKEN. Well, I was over my time, but how about— 

okay, how? 

Captain ALEXANDER. My thought, sir, was that, again, if most 

common laws require for a waiver, that there be knowledge and a 

voluntary act. And arbitration is, in fact, for all practical purposes, 

a waiver that stopping a pre-dispute arbitration provision would be 

the same thing as stopping the pre-dispute waiver provision. And 

they are both very important. In every instance where a consumer 

or an individual is dealing with another company or an entity, they 

are at a disadvantage because it is generally one person versus an 

entity with money and time and resources that writes the contract. 

Senator FRANKEN. It is a contract of adhesion. 

Captain ALEXANDER. It is a contract where the parties are not 

equal in dealing with their concerns, and that unequal status leads 

to unfortunate consequences for servicemembers. 

Senator FRANKEN. Thank you. 

Thank you, Mr. Chairman. 

Chairman BLUMENTHAL. Thank you, Senator Franken. 

This set of issues is hugely important, and I want to thank both 

of you and your staffs and everyone under your command for your 

very diligent and significant work. And thank you for being here 

today. 

We are going to be moving on to the next panel, but I hope that 

I and my staff can continue to work with you. Even though I am 

not going to be the Chairman of this Subcommittee, I have a very 

active interest in it as a Member of the Armed Services Committee, 

the Veterans’ Affairs Committee, and this Committee, the Judiciary Committee. So I hope that we can continue to work together 

on the Military Lending Act, the regulations that you are going to 

be issuing, as well as the work that you are doing, Mr. Alexander. 

And, again, my sincere thanks for being here today. 

Captain ALEXANDER. Thank you, Mr. Chairman. 

Colonel KANTWILL. Thank you, Mr. Chairman. 

Chairman BLUMENTHAL. We will move on to the next panel. We 

will ask them to come forward, and while you are doing that, let 

me just say that I am going to go slightly out of order here and 

ask Ian de Planque to be the first witness and give Senator Hatch 

an opportunity to ask some questions of him because of the scheduling needs that we have on this side of the bench, so to speak. 

And we welcome all of you here today. 

I am going to ask all of you, now that you have made yourselves 

comfortable and sat down, to please rise and take the same oath. 

Do you affirm the testimony you are about to give to the Committee will be the truth, the whole truth, and nothing but the 

truth, so help you God? 

Mr. DE PLANQUE. I do. 
14 

Colonel ODOM. I do. 

General DAVIS. I do. 

Lieutenant SAVAGE. I do. 

Chairman BLUMENTHAL. Thank you. 

Mr. de Planque is a deputy director in the Legislative Division of 

the American Legion, and he focuses there on issues related to veterans benefits and health administration. He has served as a sergeant in the Virginia Army National Guard and was deployed to 

Afghanistan during his service. He has been on the staff with the 

American Legion since 2007, and his experiences advocating for 

veterans certainly contribute to the conversation today. 

John Odom, as was mentioned earlier, has been a long-time expert on the issues that are presented today. In fact, he wrote the 

benchbook used by Federal district court judges on the 

Servicemembers Civil Relief Act and is one of the Nation’s foremost 

experts on USERRA. He is a retired United States Air Force Colonel. 

Major General Andrew Davis is executive director of the Reserve 

Officers Association. He retired from the Marine Corps in October 

2008 after a 38-year career, including tours in three wars. During 

his career he served as an infantry officer and major general. He 

assumed the duties of executive director of the 60,000-member Reserve Officers Association of the United States on November 1, 

2011. And through its Servicemembers Law Center, the Reserve 

Officers Association offers expert legal information on employment, 

military voting rights, and other legal issues that are important to 

citizen warriors. 

Finally, Lieutenant Kenneth ‘‘Gene’’ Savage, United States Naval 

Reserve, was a servicemember for 24 years and decorated Reserve 

officer who was fired from his job after attempting to secure rights 

protected by USERRA. 

And I want to thank every one of the members of our panel for 

your service to our Nation, and ask Mr. de Planque to please go 

first, and then I am going to yield to Senator Hatch for any questions that he may have. 

STATEMENT OF IAN DE PLANQUE, DEPUTY LEGISLATIVE 

DIRECTOR, THE AMERICAN LEGION, WASHINGTON, DC 

Mr. DE PLANQUE. Thank you, Mr. Chairman, and I fully understand being flexible, having come from an infantry background. 

And I want to thank you, Ranking Member Hatch, and the Members of the Committee for having the American Legion here to talk 

about this and for talking about it outside of a venue that is not 

normally seen. 

And the backlog is a big concern. Just yesterday morning, our 

National Commander, Dan Dellinger, was addressing a joint session of the House and Senate Veterans’ Affairs Committees on behalf of the 2.4 million members of the American Legion, and one 

of the top concerns that he had was the claims backlog. 

What does the claims backlog mean? A number of years back, 

Secretary Shinseki defined it as ‘‘any claim waiting over 125 days.’’ 

Currently of the over 630,000 claims pending, it is about 55, 56 

percent of those claims. When he initially made the promise back 

in 2009, 2010, to get rid of the backlog, it was only about 38 per-
15 

cent of the claims pending. It has been continuing to grow for a 

while, and it is something that is deeply concerning. 

There are a number of reasons for this, and I want to address 

two of them, kind of go into more detail and hopefully flesh out 

some of the things that are in the written remarks that I offered. 

One of them is there is a tremendous pressure on VA employees 

the way their work credit is counted to just get the claim off their 

desk to the next thing. They do not get any credit differently 

whether they do the claim right or whether they do the claim 

wrong. And they have a lot of people, including many of the people 

in Congress, many of the people in the veterans community, who 

are pushing them to get these claims done. You have veterans 

waiting a year or 2 years for an initial claim when they are trying 

to get it to a target of 125 days. 

The American Legion does 10 to 15 regional office visits, Regional Office Action Review visits. They take about a week. We go 

to a regional office across the country. We look at recently adjudicated claims. We ask the VA for a random sample of the ones in 

the American Legion POA, and we take a look at the claims. We 

interview the VA personnel. We interview our service officers. We 

have over 2,900 service officers accredited throughout the country 

helping veterans with their claims. And I was talking to a VA employee, a veteran of Afghanistan, National Guard, who had just 

gotten back. We were talking about the places he had served, and 

he worked on claims, decided claims, and he points to a stack from 

a folder that was about this tall, and he said, ‘‘You know, I put the 

face of a member of my platoon on every claim that I work on. I 

am a veteran. I am helping veterans, and I am trying to do that. 

I have a stack this big of papers to get through. I have 2 hours to 

look at that claim. How am I giving that veteran justice?’’ 

And I think the system the way it is in place right now, the way 

VA looks at work credit, because there is such pressure on that and 

there is not as much pressure on accuracy, it puts employees in a 

position where they may feel the need to cut corners. So that is one 

thing. 

The other thing I want to think about is the electronic transmission of information back and forth between VA and the DOD. 

The claims backlog actually is not a new thing. If you look at the 

metaphor for bureaucratic failure in America, it is red tape. And 

a lot of people do not know the origin of that, but if you go back, 

the origin of the phrase ‘‘red tape’’ goes back to these red ribbons 

they used to tie around the War Department folders for Civil War 

soldiers. And when you were trying to get your benefits after the 

Civil War, to cut through the red tape was to actually be able to 

get at the information in those files and go do that. 

This is a problem that has been around for a while. But the problem is we are in the 21st century, and when the VA has to go get 

their files on the veterans so that they can determine what is going 

wrong with their claim, and they go to the DOD or when you have 

the National Guard involved, then you have to get the state 

records, and it gets very complicated and convoluted. It can take 

6 months. It can take 8 months. It can take a long time to get 

those records. This is the 21st century. We should be able to transmit that information back and forth instantly. 
16 

There was broad bipartisan support, both of the recent administrations have been in support of a single unified electronic record. 

Both sides of Congress have been in support of a single unified 

electronic record. They attempted to push forward and do this. 

They spent over $1 billion trying to develop one, and just in the 

past year, VA and DOD said, you know what? We are going to go 

our separate ways. Each of us are going to come up with our own 

electronic recordkeeping system, but we will make sure that it communicates with the others. 

Well, that does not instill a lot of confidence in the veterans that 

are out there, that they would spend that much time and still not 

be able to do something that should be basic to the 21st century. 

So there is still pressure that can be put on both the VA and 

DOD to improve that handoff piece. There are other things, but the 

last thing that I want you to remember, that I want you to take 

away is, when we think about the backlog, we are winding down 

the war in Afghanistan. We have already wound down the war in 

Iraq. The wars are going away from the front page. But the veterans who are still dealing with the system are not going away 

from the front page. And it does take not just the Veterans Committees in Congress, but it takes everybody in Congress to help 

keep the attention on it. 

So thank you, and I am happy to answer any questions that you 

have. 

[The prepared statement of Mr. de Planque appears as a submission for the record.] 

Chairman BLUMENTHAL. Thank you. 

I am going to yield to Senator Hatch for his questions. Before I 

do, let me just say on this issue of the records handoff, as you put 

it, the supposed seamlessness of the records, I do not know whether you are aware, but I have actually introduced an amendment 

that would require the DOD and the VA—an amendment to the 

National Defense Authorization Act and then to the omnibus veterans bill. I could not agree with you more. I have been deeply disappointed, in fact, pretty angry about the failure so far to make 

them completely transparent and seamless, transparently seamless. And I am going to yield to Senator Hatch. 

Senator HATCH. Thank you, Mr. Chairman. I appreciate it. And 

I appreciate all four of you, as well as the other witnesses. We appreciate you taking the time to come and help us to understand 

this. And I am sorry I have to go to the floor, but I just thought 

I would ask a couple questions. 

Is it pronounced ‘‘de Planque’’? 

Mr. DE PLANQUE. That is correct. 

Senator HATCH. Well, I am grateful to have all of you here today 

and for the great work that the American Legion does. In your testimony, you note that Veterans Affairs Secretary Shinseki said in 

2010 that claims should take no more than 125 days to process and 

that the backlog would be eliminated by 2015. Now, that was 4 

years ago. 

My reading of your testimony is that the number of claims pending longer than that 125-day benchmark has risen by 78 percent 

since then. And the percentage of all claims that exceed that 

benchmark has risen from 139 percent in 2010 to almost 56 per-
17 

cent today. Naturally, I think that is going in the wrong direction. 

I am sure you do, too. 

Do you believe that the Secretary’s goal of eliminating the backlog by next year is going to be met at all? And let me ask one more. 

Do you see any numbers or trends or anything positive in this 

area? 

Mr. DE PLANQUE. Thank you, Senator, and that is a very good 

point. And you are absolutely right to see that the trend has not 

gone in the right direction. Certainly for the first several years of 

that, it definitely—the backlog continued to rise, the number of 

days it took to work the claims continued to go up, and that was 

very troubling. 

There has been a slight turn this year, a slight turn to the better. Believe it or not, looking at that 55 percent, that is actually 

a little better than we started the year out. So they are starting 

to turn the tide, but we do have a concern that the VA is going 

to feel that they are under so much pressure that they have to 

meet that deadline by 2015 that they are going to meet it no matter what and that there is going to be blowback. And I want to 

kind of explain some of that. 

Last year, they did a provisional ratings for claims that had been 

waiting 2 years or longer, and the Office of the Inspector General 

found that in one of the offices in Los Angeles, they misinterpreted 

the directions from central office, and they just prematurely issued 

denials in 91 percent of the cases when they were still waiting for 

medical exams and other things. And so those veterans now have 

to appeal. That claim does not count as an initial claim. That claim 

is now an appeal, so it is not in what we see of the backlog. So 

their numbers went down a little bit, but that is certainly veterans 

who are still waiting for justice. And as the Chairman said earlier, 

justice delayed is justice denied. 

So we are a little bit concerned. We do not want it to be a situation where they are so concerned about making those numbers that 

they start sacrificing the accuracy and the justice for those veterans. It needs to be a situation where we get the result that we 

want, not necessarily the number that we want. 

Senator HATCH. Thank you. Here in the Senate, a bipartisan 

group of eight Senators have formed a VA Claims Backlog Working 

Group. Mr. Chairman, I have received statements from two of the 

leading Senators in that working group, Senator Robert Casey of 

Pennsylvania and Senator Dean Heller of Nevada, which I ask consent to be made part of the record at this point. 

Chairman BLUMENTHAL. Without objection. 

Senator HATCH. Thank you. 

[The letter appears as a submission for the record.] 

Senator HATCH. Now, Mr. de Planque, Senator Casey states that 

by ‘‘refining management practices in the Veterans Affairs regional 

offices and modifying current procedures, the VA can serve our veterans more quickly.’’ 

Do you agree with that? And could you please mention just a 

couple of changes in this area that you think might or could really 

make a difference? 

Mr. DE PLANQUE. Absolutely. And thank you for mentioning Senator Heller and Senator Casey’s Backlog Working Group. I think 
18 

they are doing a tremendous job looking at the problem, and I 

think one of the best things they did, one of the first things they 

did was they reached out to the veterans groups that are out there. 

They reached out and asked the veterans, ‘‘What problems are you 

having accessing the system?’’ 

As I mentioned, we have 2,900 accredited service officers who are 

helping veterans in every county in the country. So they deal with 

this on a daily basis, and they were listening to what we had to 

do, and they worked throughout the process with us. 

Some of the things that they have, there are ways that—if a veteran works with a service officer, VA developed something that 

they call the ‘‘fully developed claims program,’’ and the working 

group made recommendations to kind of strengthen that program. 

Working with the service officer, you can provide most of the information the VA needs up front, and they can make the decision faster. 

The VA likes this because they do not have to do as much work 

tracking down all the information. The veterans and the service 

groups like it because they can get a decision much faster. You 

know, instead of waiting 300, 400 days for a decision, you are waiting 100 days for a decision. And so that is one way in which they 

can work. 

There have been other things that they have mentioned about 

providing veterans information about how they can get faster hearings, whether they utilize videoconference hearings or in-person 

hearings, getting more information to them to help make the 

choices that are going to help them navigate the system better, and 

I think those have been good. And the important thing has been 

having VA, Congress, and the veterans all involved in the conversation from the very beginning, from the ground up, because 

those are all people who have to deal with the system. 

Senator HATCH. Mr. Chairman, I have got to run to the floor. 

Could I—— 

Chairman BLUMENTHAL. Absolutely. 

Senator HATCH. Mr. de Planque, I appreciate you being here, appreciate all of you being here, and I am sorry that I have to leave, 

especially in this particular case, because we appreciate all you do. 

Chairman BLUMENTHAL. Thank you. Thank you, Senator Hatch, 

for being here. I know that you have a busy afternoon. 

We are going to be here for a while, and I hope that I can continue some of the questions with you, Mr. de Planque, because also 

in your written testimony you make some very important points 

about loopholes in the current law. 

But let me go back to the regular order, so to speak, going from 

your right to left, and ask each of you to make whatever opening 

remarks you may have, beginning with Mr. Odom. Thank you 

again for your service. 

STATEMENT OF JOHN S. ODOM, JR., COLONEL, USAF JAGC, 

RETIRED, JONES & ODOM, LLP, SHREVEPORT, LOUISIANA 

Colonel ODOM. Thank you, Mr. Chairman. As we say down home, 

it is just us chickens now, so let me go one on one with you, if I 

could. My name is John Odom. I am an attorney from Shreveport, 

Louisiana, and for all of my adult life, I have been a JAG in the 
19 

Air Force practicing law. I was a judge advocate for about 35 years, 

and I have continued with a practice that primarily relates to representing servicemembers in various types of actions. My area is 

really the Servicemembers Civil Relief Act. I am very familiar with 

the Act. I have been privileged to work with a number of staff and 

members and passed amendments to the Act, and I think, Mr. 

Chairman, that your initial remarks really sort of reflected exactly 

what I tried to convey to the Committee in my written remarks. 

I would like to give you a very short quote from one of my heroes, General George Marshall, who said, ‘‘We are going to take 

care of the troops first, last, and all the time.’’ And that is really 

what I think the SCRA does. It is a fantastic statute. Its breadth 

is breathtaking for those of us who work with it every day. 

After the education and policy efforts of Colonel Kantwill and the 

Office of Legal Policy have gone on, and after the retail work of 

Dwain Alexander and all of the thousands of legal assistance attorneys that represent all four branches of the service, after their efforts of persuasion have been ineffective, they run out of airspeed 

and altitude, and we would say in the Air Force, and along I come. 

It is time to sue somebody, and that is what I do for a living. I am 

really happy to do it, too. My clients are always on the side of the 

angels, so it is a good thing. Just give me a jury, Senator 

Blumenthal, just give me a jury and let me work on that a little 

bit. 

Chairman BLUMENTHAL. There are days when I wish we had a 

jury instead of the process we have here. 

[Laughter.] 

Colonel ODOM. Well, I will make my opening statement in less 

than another 2 minutes then. 

Let me suggest, though, that with every great piece of legislation, 

every once in a while it is time to pull it out and dust it off and 

look and see if the people that are trying to get around it are doing 

a better job than the people who are trying to enforce it. And so 

it is with the SCRA. 

I give this briefing all over the country, and I have got to quit 

calling it ‘‘the new Act,’’ because it was enacted in 2003. Okay, it 

is 11 years later. It is no longer ‘‘the new Act.’’ 

But let me just make some nuts-and-bolts suggestions to you, sir, 

on how a very good Act could be tweaked in a prospective manner 

at no cost to the Government and make it ever more effective for 

the enforcement of our servicemembers’ rights. 

A lot of the points that I am going to address very, very briefly— 

and they are covered at length in my written statement—you cosponsored Senator Sanders’ bill that had almost every one of—I 

keep a wish list of what I would like to see, and I am pleased to 

tell you that eight of the ten things that I suggested made it into 

a bill introduced by Senator Rockefeller, and then that got pulled 

out and pulled in Senator Sanders’ overarching bill. Unfortunately 

you know where that one went, but there is a possibility that we 

can get some resurrection on that. 

Let me give you just some real nuts and bolts. There is a default 

judgment provision that says that creditors can only take default 

judgments against servicemembers in strict accordance with the 

Act. Nobody ever does it right. At a very minimum, the Act ought 
20 

to say that the creditor must certify that they have done a due diligence search to see whether or not the defendant is or is not in the 

military. It takes about 15 seconds on the website of the Defense 

Manpower Data Center. It is available to the public. It is probably 

the most effective governmental agency I have ever worked with. 

They are fantastic in the database management that they do. Everybody can go back and find out from 1983 until the present, give 

a specific date, and in 15 seconds you can know whether or not the 

person was or was not on active duty on that date. So requiring 

at a bare minimum a DMDC SCRA database search seems to be 

sort of a no-brainer. 

Then as hard as this may be to believe, I just finished settling 

a case in Florida against a major national bank, who must remain 

unnamed because of the Compton-Shelley Clause—but they do 

know how to write large checks. I was pleased about that. But the 

bank’s counsel, when I pointed out to them the illegal foreclosure 

that they had done through a default judgment that did not follow 

the statute, he suggested that even though his client, the bank, 

had in their records the knowledge that the defendant was on active duty with the Navy and even had an email address for the person, that they had no obligation to share that information with the 

attorney appointed to represent the absent servicemember, and 

that attorney filed an answer with the court that said we do not 

know if the person is alive or dead, we do not know whether they 

are in the military, but we see no defense to the action; whereupon, 

a default judgment was taken. The foreclosure took place. The 

bank bought the house for $100, and then the Department of Veterans Affairs paid off on the loan because it was a VA-guaranteed 

loan. There needs to be a really easy fix to default judgments. 

There was a drafting error in 2005 when a protection was added 

to Section 305 about how you go about canceling a lease. There was 

a drafting error. They put the definition of ‘‘military orders’’ in Section 305. It really needed to go in the definitions section. All we 

need is to take it out of 305 and put it in the definitions section 

so that it will apply to the entire Act. 

The term ‘‘permanent change of station’’ is used in Section 305. 

If you get permanent change of station orders or what we call PCS 

orders to move to another base, you can terminate your lease. Well, 

permanent change of station is defined in the joint Federal travel 

regs to include separation and retirement moves. You try to get an 

apartment manager that when you are separating, it is a PCS 

move and, therefore, you have the right to cancel your lease, you 

cannot do it. All we need to do is define ‘‘permanent change of station.’’ It is a fairly simple thing. 

You ought to be able to refinance a pre-service obligation, either 

a student loan or a mortgage, to get lower interest rates without 

converting that obligation from a pre-service obligation to an obligation incurred during service, because if you do that, you would 

lose all your SCRA protections. These are really, really very small 

things. 

One more point. There is a section in the SCRA, Section 602, 

that says the Secretary of the service concerned will issue certificates of service, which will be prima facie evidence of the active 

duty status of an individual. They do not do that. That is what the 
21 

DMDC SCRA website does. You could not find a Secretary of the 

Army or Secretary of the Air Force or Secretary of the Navy or 

whatever, you cannot find them—they do not understand that exists. So that is a section that needs to be simply overhauled where 

technology has outstripped the legislation. 

One more point, and I know I am over my time, but I appreciate 

your indulgence. Mr. Alexander testified at some length about predispute mandatory arbitration clauses. If Congress in the SCRA 

and the real protective provisions in Title III provided that—it does 

not say you cannot foreclose. It does not say you cannot evict. It 

does not say you cannot repossess. It says you cannot do those actions except with a valid court order. Congress has already understood the importance of interposing a neutral and detached judge 

between Big Bank and Sergeant Snuffy. Why would Congress ever 

want to allow Big Bank to require Sergeant Snuffy to sign away 

his or her rights to be protected by that neutral and detached magistrate? 

If after the event occurs both parties with their eyes open say, 

‘‘We agree we ought to submit this to arbitration,’’ as opposed to 

litigation, that is a different topic. That is fine, if you go into it 

knowing it. But if a 19-year-old signs a credit card agreement before he has any idea that he is ever going to be protected by the 

SCRA, then when he is 23 he goes on active duty, and then when 

he is 25 he has an SCRA-protected action that would otherwise be 

capable of taking to court and the credit card company says, ‘‘So 

sorry, partner, back when you were 19 you waived all of those 

rights because you signed this little piece of paper’’—in the 2-point 

type that you can barely see. So I think that could be fixed. 

And, by the way, that was in both Senator Rockefeller’s bill and 

Senator Sanders’ bill. 

The last point. I do some USERRA practice. The same arguments 

about pre-dispute mandatory arbitration clauses that apply to 

SCRA would apply to USERRA, but there is an extra kick. There 

is a point at which USERRA and SCRA overlap. Under SCRA, if 

an individual is in a court proceeding and he or she is unable to 

get to court because of military duties, they can demand a mandatory stay of the proceedings, and it has to be granted if they follow 

the statute properly. That provision would not apply to arbitrators. 

The arbitrator could schedule the arbitration while Lieutenant Savage was down range fixing airplanes in Djibouti, and it would go 

on because he could not stop it. 

So there is an interaction between USERRA and SCRA, and as 

far as the arbitration provision is concerned, I think that it should 

be limited to post-dispute—in other words, no pre-dispute mandatory arbitration. 

I thank you for your attention. I will certainly answer any questions if you have any, sir. 

[The prepared statement of Colonel Odom appears as a submission for the record.] 

Chairman BLUMENTHAL. Thank you very much, Mr. Odom, and 

also thank you for being here and for your service after your military service as well. 

General Davis. 
22 

STATEMENT OF MAJOR GENERAL ANDREW DAVIS, EXECUTIVE 

DIRECTOR, RESERVE OFFICERS ASSOCIATION OF THE 

UNITED STATES, WASHINGTON, DC 

General DAVIS. Chairman Blumenthal—also a Marine. 

Captain ALEXANDER. Thank you. 

General DAVIS. The Reserve Officers Association thanks you for 

the invitation to appear and give testimony today. I am also authorized to speak on behalf of the Reserve Enlisted Association. 

Although contingency operations in Afghanistan are winding 

down, there are still more than 40,000 Reserve and Guard members who are deployed worldwide of the 1.1 million men and 

women in the Reserve and Guard. Many outstanding citizen soldiers, sailors, airmen, Marines, and Coast Guardsmen have put 

their civilian careers on hold while they serve our country in 

harm’s way. They share the same risks with their counterparts on 

the active components on the battlefield, but do not always have 

assurances of a job when they return home. 

While laws exist to provide re-employment and employment protection, many Reserve and Guard members had to seek private representation when the Department of Labor or the Department of 

Justice failed to address their cases. 

Just last week, we passed the 894,000 mark for the number of 

Reserve and Guard servicemembers who have been activated since 

9/11. More than 336,000 of them have been mobilized two or more 

times. It is important, therefore, that we do not squander this valuable resource of experience, nor ignore the protections that they are 

entitled to because of their selfless service to our country. 

Thirty percent of those who served in Iraq or Afghanistan are 

Reserve or Guard veterans, according to the Department of Labor. 

The dual status of veteran and serving members complicates the 

employment of Reserve and Guard members returning from mobilization. They face returning to communities that do not have the 

same support structure that is available if they were on or near 

military bases. High numbers of them have been unable to find reemployment during this war and the economic recession. Some 

Army National Guard units returned with unemployment levels 

over 35 percent. 

ROA and REA fear that the unemployment rate is so high because employers are shying away from hiring potential employees 

who are serving in the Reserve components. We call this ‘‘stealth 

discrimination,’’ and because of employer concerns about reactivation by an operational Reserve, unemployment for 18- to 19-yearold Reserve and Guard members is nearly triple the unemployment 

rate for non-affiliated veterans. Bureau of Labor Statistics reports 

that in February, unemployment has risen back to 16.6 percent of 

veterans between 18 to 24 years old and has climbed to 18.8 percent of veterans between 25 and 29. 

The 18- to 24-year-old age group and the 25- to 29-year-old group 

are made up in large part of the Reserve and Guard. The overall 

veteran unemployment rate was just 6.3 percent. 

Higher unemployment rates for younger Reserve and Guard 

members provides silent testimony that stealth discrimination remains. Smaller businesses can ill afford to lose key people and remain productive. They may congratulate a Reserve Force applicant 
23 

on his or her military service and then simply fail to follow up, putting the re ́sume ́ into the circular file, although such discrimination 

is clearly unlawful under USERRA. 

Three surveys show that between 60 to 70 percent of employers 

will not hire new employees who are affiliated with the Reserve 

and Guard, but this is hard to prove unless the employer is naive 

enough to verbalize his or her prejudice—although there are some. 

Both DOD’s ESGR and Department of Labor fall short at helping 

the number of Reserve and Guard members facing employment 

challenges. Where once ESGR counseled employers and employees 

about USERRA, now the weight falls upon the shoulders of the accuser (employee) to generate the complaint against the employer as 

ESGR remains neutral. If a case is referred to DOL from ESGR, 

the VETS Office is supposed to complete the review and take action 

within 90 days but rarely does. The results of the investigation are 

shared with the affected Reservist who is briefed on the choice he 

or she has. DOJ reviews the cases, but does not brief the complainant about why a case may be turned down. As most Reserve Force 

members work for small businesses or local governments, they 

rarely have Federal representation. 

In fiscal year 2012, VETS referred 111 cases to the Department 

of Justice. DOJ filed just nine USERRA complaints of that 111 in 

that same year. Unfortunately, the number of cases supported by 

Federal agencies does not reflect the needed support of Reserve and 

National Guard members. Federal emphasis has shifted from representation to education, which does not help individuals facing 

employment or re-employment problems. While moral suasion is 

importance, it does not always reach the middle managers where 

the problems occur, even in big corporations. 

ROA’s pro bono Servicemembers Law Center is receiving more 

than 800 calls a month on average, about half of those related to 

employment issues. ROA would like to share our garnered knowledge with the Committee as we see trends and problems facing our 

servicemembers. Leading the list is USERRA enforcement. 

Thank you, and I stand by for your questions. 

[The prepared statement of General Davis appears as a submission for the record.] 

Chairman BLUMENTHAL. Thank you, General. I am going to follow up on some of those really excellent points. I appreciate your 

talking about discrimination against our Reserve and against veterans. 

Lieutenant Savage. 

STATEMENT OF LIEUTENANT KENNETH ‘‘GENE’’ SAVAGE, 

U.S. NAVAL RESERVE, MEMPHIS, TENNESSEE 

Lieutenant SAVAGE. Good afternoon, Mr. Chairman and distinguished Members of the Committee. I would like to first thank the 

Committee for the opportunity to share my story here today. 

My name is Ken Savage, but my friends and family call me 

‘‘Gene.’’ I currently live in Memphis, Tennessee, with my wife, 

Michelle, of 10 years. I have a son, Quentin, and a stepdaughter, 

Kathryn. I served on active duty in the enlisted ranks of the Navy 

for 9 years, and I am currently serving in the Navy Reserves as 
24 

a Lieutenant with VR–54 in New Orleans, Louisiana. I am proud 

to tell you I have served our country for over 24 years. 

In addition to my Naval service, I also had a promising career 

with FedEx Express as senior aircraft maintenance technician until 

I spoke out about FedEx’s discrimination against servicemembers 

and I was fired as a result. 

I first discovered in August of 2004 that FedEx made a policy 

change that punished Guardsmen and Reservists who were serving 

on military duty for less than 30 days, which is the most common 

type of service. Under this policy change, if we were not available 

for overtime work because we were serving our country, we were 

charged with a penalty that kept us from being able to take overtime opportunities upon returning to work. This hurt FedEx’s military families financially. 

In May of 2007, FedEx’s unjust treatment towards Guardsmen 

and Reservists was illustrated again with a policy change that deprived us of employee benefits, including health care, when we 

were on military service. 

What is even more disheartening is that FedEx knew as far back 

as 2006 it had an issue with properly crediting servicemembers’ retirement accounts. 

In March of 2008, fellow servicemembers and I publicly expressed our concerns over FedEx’s new retirement plan. FedEx 

assures us that its new system would properly credit our retirement accounts while on military duty. But in June of 2012, I noticed discrepancies streaming from 2001 in my own retirement account. I expressed my concerns to the benefits department, but to 

no avail. Rather than fix the problem, FedEx sent me bouncing 

from one department representative to another. Two months later, 

I was fired. 

I filed a complaint with DOL VETS which investigated and found 

that my case was meritorious and that FedEx violated multiple 

parts of USERRA. Nonetheless, FedEx refused to reinstate my employment and reimburse me for warranted back pay. I consulted 

with Captain Sam Wright of the Reserve Officers Association, who 

gave me invaluable advice. 

I was fortunate that a former Navy SEAL, now attorney, Joe 

Napiltonia, agreed to take my case on a contingency fee basis and 

front all of the costs of the litigation, despite the fact that the statute does not guarantee that he will even be compensated if we prevail. 

You are probably thinking why don’t I just go get another job, 

I have all this experience. The short answer is professionally, if I 

obtain a job with one of the big air carriers, I would have to start 

my career all over again. When I started at FedEx, I worked the 

graveyard shift for approximately 9 years before I earned enough 

seniority to finally obtain a daytime shift where I could spend quality time with my family. 

On a personal note, because of my unwarranted termination, I 

have been in such financial straits that my wife and I were forced 

to sell personal and family belongings, including the family car, to 

make ends meet. Ten months after my termination, we were forced 

to short-sell our home of almost 10 years, which in turn has negatively impacted both of our credit. If FedEx had reinstated me with 
25 

back pay pursuant to DOL VETS’ findings, this would not have 

happened. 

The hardship my family has encountered motivated me to see 

that this does not happen to other servicemembers. I felt it was my 

duty to speak out on behalf of all servicemembers who face discrimination because of their military service. 

This does not have to be the end of my story, though. It has become clear to me that certain legislative actions can and must be 

taken to help protect servicemembers, small business consumers 

who should all have the same access to the justice system as corporations like FedEx. If corporations like FedEx are not held accountable, everyone’s financial security will be at risk. My fight to 

hold FedEx accountable continues in Federal court. 

In speaking with you, I hope I have been able to shed some light 

on just how critically important this issue is nationwide. Theodore 

Roosevelt said it best when he said, ‘‘A man who is good enough 

to shed his blood for his country is good enough to be given a 

square deal afterwards.’’ 

Please act swiftly and address these issues and know that I look 

forward to engaging in a meaningful conversation with the Committee Members today. Thank you so much for your time and consideration. 

[The prepared statement of Lieutenant Savage appears as a submission for the record.] 

Chairman BLUMENTHAL. Thank you very much. Thank you for 

your courage in being here today and telling your story, which I 

think does shed a great deal of light on the issues and problems 

that bring us here. And I would like to begin with a few questions 

to you that may elicit some additional facts, and the other witnesses may wish to comment on it. 

First of all, I understand that your wife is a patrol officer in the 

Collierville Police Department and has been for 18 years. 

Lieutenant SAVAGE. Yes, sir. 

Chairman BLUMENTHAL. So I thank her for her service as well. 

Lieutenant SAVAGE. I will pass it on. 

Chairman BLUMENTHAL. And I understand also that because of 

your family obligations, you cannot just travel anywhere in the 

United States to get a job. You are tied to the Memphis area because of your son’s schooling requirements. Is that correct? 

Lieutenant SAVAGE. Yes, sir. 

Chairman BLUMENTHAL. Which I think happens to a lot of folks. 

They have ties to their communities. They cannot just move anywhere in the country to practice their skills. And you certainly 

have a very useful and important skill, and I can understand that 

you do not want to begin in the graveyard shift. You want the status and seniority that you are entitled to receive, and that is one 

of the reasons that brings you to Federal court. And your action is 

currently pending against FedEx? 

Lieutenant SAVAGE. Yes, sir. 

Chairman BLUMENTHAL. By the way, is your attorney here 

today? Thank you for your service to our Navy and also thank you 

for taking this case. 

Mr. NAPILTONIA. Thank you, Senator. 
26 

Let me ask you, I understand, going by your written testimony, 

that FedEx actually originally reinstated you and then fired you 

again. Is that correct? 

Lieutenant SAVAGE. Yes, sir. During the course of the VETS DOL 

investigation, for reasons unannounced to me, they hired me back 

and 4 days later upheld the termination and fired me again. 

Chairman BLUMENTHAL. And did they give you a reason for, you 

know—I know that—— 

Lieutenant SAVAGE. My VETS DOL investigator, she did not 

really tell me a reason. It was a major surprise to her. She was 

asking me to get figures together for back pay, and like I say, 4 

days later they terminated my short-lived employment again. 

Chairman BLUMENTHAL. So they gave you no reason, they just 

showed you the door? 

Lieutenant SAVAGE. Yes, sir. I did not even really return to work. 

Chairman BLUMENTHAL. And did they make any offers to you of 

coming back under other circumstances? And, by the way, if you 

want at any time during my questions to ask your attorney—I 

know you have a case pending, so I do not want to ask you questions or elicit answers that may be harmful or work to your disadvantage in court. So feel free to ask your attorney. Did they 

make any offers to you about coming back? 

Lieutenant SAVAGE. No, sir. In fact, I have the DOL investigative 

paper here, if you would like to have a copy. It was very clear in 

what DOL was expecting FedEx to do for violating these sections 

of USERRA. And we gave them 30 days to comply with the written 

investigative conclusion, and it was not until I told DOL that I was 

going to refer my case to the Department of Justice, they sent 

FedEx a letter to that effect, and then FedEx came back and said 

that ‘‘we would like to just mediate this retirement issue with Mr. 

Savage.’’ But there was no word of reinstatement, missed income, 

benefits, no, sir. 

Chairman BLUMENTHAL. Do you have any views as to why FedEx 

did not comply after the Labor Department told them, in effect, 

that they were breaking the law? 

Lieutenant SAVAGE. I would only have to speculate and say that, 

you know, FedEx is a huge employer in the Memphis area, and 

they have thousands of people in their employ. So to me, I was 

probably just another number, and they did not feel it necessary 

to engage in this type of enforcement. 

I know from working in the mechanic field, if they get a violation 

from the FAA, they straighten up real quick because they enforce 

monetarily. That I think needs to be under consideration. 

Chairman BLUMENTHAL. And, you know, I know you are not a 

lawyer, but you have just articulated what I think is one of the 

major takeaways from your experience, that penalties for breaking 

the law may be insufficient to deter that kind of misconduct. Is 

that where you are going? 

Lieutenant SAVAGE. Yes, sir. I think if these guys were held accountable for the actions that they did against me and DOL had 

more enforcement rights, there might have been a different outcome. 

Chairman BLUMENTHAL. Let me turn to two really very distinguished and experienced lawyers, Mr. Odom and General Davis. 
27 

Would you care to comment on either that observation or other facets of this case? 

Colonel ODOM. General? The colonels always defer to the generals. 

Chairman BLUMENTHAL. Well, I got no higher than sergeant. I 

am outranked by everyone. 

General DAVIS. And I am not a lawyer. I am not a lawyer, but 

I think that this case is really emblematic of employers’ lack of incentive to follow the law. Unfortunately, we see a real gap in the 

ability of both DOJ and DOL to step up. As I said, when fewer 

than 10 percent of the cases are even addressed, that shows that, 

by example, the Government is not taking this as seriously as it 

should and the impact is on the Reservist servicemember. And as 

I said, often the impact is in a stealth mode. Most employers are 

not foolish enough to say, ‘‘I am not hiring you because you are a 

Reservist,’’ or ‘‘I am terminating you because of your Reserve service.’’ Other means and other reasons are found. And, quite frankly, 

we are at ROA perplexed about what a legislative relief to that 

stealth discrimination might even be. 

There are employers—we have one case that we advocated and 

had to turn over to a civilian lawyer. A prominent cable television 

anchor person had a Reserve commitment. She was, no kidding, a 

hurricane hunter, and her Reserve service interfered with her cable 

television anchoring duties. And she was—her contract was terminated. That employer was not smart enough to say we are not 

doing this because you are Reservist. They actually said, ‘‘Your Reserve duty is getting in the way of your job, and find another job.’’ 

That was a year and a half ago, and we are still—she has still not 

reached resolution of her employment case. 

Colonel ODOM. Senator, could I add just one thing to what General Davis has said? You have seen Lieutenant Savage. You have 

heard him say that as a result of the loss of that job he and his 

wife lost their house; they had to sell their car. He has been out 

of work for over 2 years. If any fair-minded person thinks that just 

paying Gene Savage his past lost wages even with a reinstatement 

is full compensation for the anguish, the heartbreak, the misery, 

the ruined credit and everything else that he and his wife have 

gone through, I do not think they can come to that conclusion. 

If USERRA never has an opportunity for the aggrieved 

servicemember to receive compensatory damages, everybody else in 

a Title VII case gets some type of compensatory damages for the 

emotional distress, the mental anguish, the grief, the loss, the disruption of their family lifestyle, that should be compensable even 

more so if the employment action was taken against someone as a 

result of their service to the country in the Guard or the Reserve 

or the Active Force. 

Chairman BLUMENTHAL. How about punitive damages? 

Colonel ODOM. Oh, I love that concept, Senator Blumenthal. 

What a great idea, sir. Well, yes, sir, I think that if—the punitive 

damage aspect of USERRA now is just double the past wages if you 

can prove that the action was taken intentionally. It is a rare case, 

it is a unicorn where they are dumb enough to leave a complete 

paper trail where you can show there is a memo from the CEO that 
28 

says, ‘‘Fire that man because he is gone too much for the Reserve.’’ 

That does not exist very much. 

So I think that the full range of damages that are available in 

other types of—in 42 U.S.C. 1983, a civil rights violation, you are 

entitled to compensatory and punitive damages. Why shouldn’t a 

servicemember be entitled to precisely that same type of relief? 

USERRA is much like SCRA. It is a great statute, but it is time 

to update it to reflect the realities of the employment workplace. 

Chairman BLUMENTHAL. And to provide the incentive for attorneys to take these cases. 

Colonel ODOM. And disincentives for employers to violate the Act 

in the first place. 

Chairman BLUMENTHAL. Right. 

Colonel ODOM. If they know that their main—the bottom line to 

them, sir, is ‘‘I have got to retake this kid and I have got to pay 

him a couple years in past due wages,’’ sir, that is a rounding 

error. That is a rounding error to a big major Fortune 500 corporation. But if they knew that if Gene Savage’s very competent attorney could get to a jury and talk to them about the damage to the 

Savage household, that would probably make them much more inclined to, ‘‘Well, let us talk about this, maybe we can resolve this 

quickly and get you back to work.’’ 

Chairman BLUMENTHAL. Thank you. 

Let me go back to General Davis, and I did not mean to be disparaging by incorrectly referring to you as an attorney. 

[Laughter.] 

Chairman BLUMENTHAL. You are distinguished, but not as an attorney. And apologies to Mr. Odom. Only a fellow member of the 

bar could make that joke. 

What about the Department of Justice? Does it need additional 

authority? We have been talking about private enforcement. Should 

the Department of Justice have additional authority to enforce 

USERRA cases? 

General DAVIS. Thank you, Senator, and in my civilian career of 

35 years, I was actually a newspaper reporter, editor, and publisher, so I am not sure which is more distinguished. 

Colonel ODOM. I will turn my mic off now. 

General DAVIS. If the Department of Justice were inclined and 

had the resources to take up these cases, I think that that would 

be a marvelous first step. I think it is—while a worthy representation by attorneys like Mr. Odom to have the Government actually 

take its prosecutorial responsibilities seriously would be a terrific 

cudgel in giving power to the USERRA law, unfortunately that is 

not the case. And we at ROA have a great poster child of that. Our 

elected national president was a contractor who was on a contract 

to Department of Homeland Security. He was activated, mobilized, 

and deployed to Iraq, and when he returned, it turned out that 

Homeland Security preferred the replacement contractor that had 

taken his job. And his employer did not want to jeopardize the contract, so he was let go. 

It seems like a pretty clear-cut case of violation of USERRA and 

discrimination, both by the contractor and by the Department of 

Homeland Security. The Department of Justice would not take up 
29 

the case even though the recommendation by Labor was that they 

do so. 

Thankfully, the Reservist ultimately prevailed against both the 

Department of Homeland Security and the contractor, but it took 

private representation when all it would have taken was Justice to 

weigh in earlier on in the case. 

Chairman BLUMENTHAL. Do you have any views, Mr. Odom, on 

the involvement of DOJ in these cases? 

Colonel ODOM. I can give you a specific example. A few years 

back, Captain Sam Wright and I—I had been mobilized. I was back 

on active duty. We had a Reservist in the State of Alabama, which 

had a sovereign immunity issue. The Reservist was employed by 

one of the State universities in the State of Alabama, and Captain 

Wright and I were attempting to assist him in resolving a 

USERRA claim. He came back from the war. They did not rehire 

him. 

Because of the sovereign immunity and Eleventh Amendment 

problems, the only entity that could sue on behalf of this Reservist 

was the United States Attorney for the Middle District of Alabama, 

as I recall, where it was located. We simply could not get that guy 

to take the case. It was very clear. And this individual had no right 

of action in State or Federal court because of the Eleventh Amendment and the way the Alabama Constitution reads. We could not 

get the local U.S. Attorney. 

Now, subsequent to that time, the Department of Justice has established a USERRA Enforcement Division. I cannot stress to you 

enough the importance of when an employer gets a letter from Big 

Justice. I hate to admit this, Senator, but it is different than when 

they get a letter from John Odom. It really has a different impact 

on them. 

And I would also, just to kind of come full circle, I would point 

out to you that when private counsel engages in a USERRA action, 

if that action goes to an arbitrator, we do not have the Federal 

Rules of Civil Procedure at our back to do the appropriate discovery that would be necessary to flesh out a case like Gene Savage’s case, which requires a lot of data searching to find out and 

resolve all those pension issues and especially if there are other Reservists that have had similar things. You have got to have the 

Federal Rules of Civil Procedure at your back to compel discovery, 

and that is not available in an arbitration. 

I did not mean to skip across the streams, but I thought that was 

an appropriate point to emphasize what were talking about, predispute mandatory arbitration. 

Chairman BLUMENTHAL. Well, I think those comments by both of 

you are very well taken, and both the authority and the resources 

available to Justice in these cases ought to be strengthened and enhanced. 

You know, I have looked at the letter that is dated March 22, 

2013, in your case, Lieutenant Savage, and it is striking in the unequivocal conclusion—I am quoting just one part of it: ‘‘Based on 

the facts as determined in our investigation and the application of 

the law to the facts, it is VETS’ position that Mr. Savage’s allegations are meritorious. Specifically, we find that FedEx is not in 

compliance with’’—and it lists the statute. You know, I think that 
30 

enforcement by the United States Department of Justice in that 

kind of case would be absolutely appropriate. And an increase in 

the remedies that are available to plaintiffs like yourself both to 

deter misconduct and to provide for fairer compensation for the 

losses just described by Mr. Odom and yourself are absolutely appropriate as well. 

Lieutenant SAVAGE. Sir, if I did not mention before, I did refer 

my case to the Department of Justice Civil Rights Division. That 

is who deals with these type issues. I was denied, and with really 

no concrete reason as to why. And so without the attorneys like Joe 

and Mr. Odom, I would have been dead in the water. There is not 

a lot of attorneys out there to take these cases. I am very fortunate 

to have these guys here doing this type of work. 

Chairman BLUMENTHAL. Well, when I talk about the Department 

of Justice being strengthened in its authority, it may also need 

greater encouragement to take these cases and use both its existing 

authority and any new authority that it is given. 

Mr. de Planque, you have been very patient and very helpful in 

response to Senator Hatch’s questions, and I do have a couple of 

inquiries based on your written testimony. I notice that you refer 

to a couple of the same gaps or loopholes in the law that I think 

General Davis may have mentioned regarding the refinancing of 

student loans and also the refinancing of mortgages. And you touch 

upon the loss of SCRA protections against exorbitant interest rates 

in both those circumstances. In other words, if a student loan is refinanced, the legal protections no longer apply. The same is true of 

refinancing of mortgages or home loans. And I wonder whether— 

you may not be authorized to say it, but whether the American Legion would support a legislative effort to fill those gaps and reform 

the law? 

Mr. DE PLANQUE. Well, you know, the American Legion, we are 

a resolution-based organization. We are grass roots. We take our 

mandate for advocacy from what our members pass up. And the 

loan specifically is a little bit outside of my area of expertise, but 

I do have some colleagues who are very sharp on that. So I would 

be happy to, for the record, take that back, compare it to that, and 

get you an answer very quickly as to how our resolutions address 

that specific provision and certainly continue to work with you on 

that. 

[The information appears as a submission for the record.] 

Chairman BLUMENTHAL. And I think it was Mr. Odom who mentioned this gap, and it was the American Legion in their testimony 

before the VA Committee that spoke about it. So I would appreciate any additional information you may have on it. 

And I appreciate your comments on the backlog in the remarks 

that you gave today. Senator Hatch has given me a couple of questions just to ask you for the record, if you do not mind responding. 

The Senate Working Group that he mentioned when he spoke to 

you issued a report a week or two ago, and the report reveals data 

about the numbers of claims and the rate at which they are processed. But it also says—and here is the quote: ‘‘Since at least 1993, 

the VA has underperformed in its duties to provide timely and accurate disability compensation claims for veterans. The VA continues to see the backlog rise every few years.’’ 
31 

Do you agree with that assessment that the problem has persisted and even growth for more than two decades? And the second 

part of his question is: What do you think is the primary reason 

that this has been such an intractable problem for so long? 

Mr. DE PLANQUE. Well, first of all, I wanted to address something 

you said earlier when you were discussing your amendment, which 

we are aware of, to kind of hold VA and DOD’s feet to the fire, and 

I wanted to thank you for that amendment and your commitment 

on that. 

Second, as to the specific thing, yes, there has been a long trend, 

I would say even more than two decades. I have a poster in my office of the 1928 Poppy Days of the American Legion, which was a 

fundraising effort to help World War I veterans with their claims. 

And they certainly dealt with that. You know those stories of the 

compensation army that marched on DC. 

This has been a consistent problem as it has gone through. There 

are a variety of reasons for it. Some of the ones that are most critical right now, in some cases it was a planning issue, not expecting 

certainly as a section of the workforce was moving towards retirement and as the baby boomers reach that age and not necessarily 

having new people to replace it. There have been some plus-ups to 

VA personnel in the last several years, some big plus-ups to personnel. But the VA themselves will tell you that when a claims 

worker starts working on it, it can take him 2 years to get up to 

speed to really be doing regular production level stuff. And so even 

if you double the staff in an office—I looked at statistics at one 

point last year that said that in most VA regional offices, 50 percent of the employees had been there less than 3 years. So you 

have some new employees who are being brought in to plus-up 

those levels, and so there is a learning curve for working with this. 

It is a little bit different than many adjudication systems, and so 

it takes some work. They need to have the time for training. They 

need to have—you know, as it stands right now, they are committed to 80 hours for training, but that sometimes gets sacrificed 

because you have to just keep doing production, you have to keep 

doing production. And we need to look at that. 

VA employees have been pushed very hard, and they have been 

going on 3 years of mandatory overtime now. You know, 3 months 

of mandatory overtime might be taking care of a problem. Three 

years, you might have to look at whether or not you have the right 

number of people working on that job. 

So both sides of the aisle have been very sympathetic to making 

sure and asking VA, ‘‘Do you have the right resources you need to 

meet this task?’’ They have consistently said that they have, but 

I think maybe some outside investigation and looking into that. 

I think it is important when you look at what a group like the 

American Legion is, a third-party group that goes in there, we are 

not there to dig the VA, we are not there to do any—but we are 

there to look from the outside with no other interest than let us 

make sure that we get this right. The working group is a great example, again, of a bipartisan effort that went to listen to what the 

veterans had to say. 

There are a number of things that go with that. VA did a better 

job of aggregating the errors that they get. Now that they are 
32 

tracking everything electronically—they are operating on a fully 

electronic model now—they should easily be able to list what are 

our common errors: do we have problems rating back claims, do we 

have problems rating PTSD claims, do we need to develop our 

training based on that, if there was a better aggregated system of 

that. They are just starting to use these sort of 21st century all 

electronic office place tools. It just went completely online last year. 

As with any new IT project, that takes a while, and there are going 

to be bugs and so forth. But we need to hold them kind of to the 

fire to make sure that as you put these tools in, you are really 

transforming the way you are working. 

I mentioned at one point having electronic tools, it is not a cureall. It is not something you can wave a wand and fix everything 

with. In some ways, if you just keep doing things the way you did 

it before, it just gives you the ability to make mistakes faster, and 

that is not helpful to anyone. 

What you want to do is really look at the process and how you 

do that, and, you know, VA is a large veterans employer. I think 

they are the largest veterans employer in the Federal Government. 

There are a lot of veterans who go to work every day at the VA 

and believe that their mission is, ‘‘I am here to help veterans.’’ But 

a lot of them are frustrated because the system demands pressure 

to just turn it over without necessarily paying attention to the detail to get it right. 

In the Army, as a sergeant, we used to teach our people, slow 

is smooth, smooth is fast. It is okay to sometimes take time, pay 

attention to detail. There is nothing wrong with just being a sergeant. 

So I think if they take some of those messages back, and most 

importantly, if they continue to talk to the stakeholders, the veteran service officers, the people who are sitting there working on 

the other side of the claims system every day, if they take that 

feedback, if we continue to have a two-way street of dialogue and 

do not look at each other as adversaries but look at each as people 

who were trying to work towards—the point of the VA is to serve 

not the veteran service groups, not the VA employees, but the point 

of the VA is to serve the veterans. And so if we can work together 

to make that happen, I think communication is key to that. 

Chairman BLUMENTHAL. Thank you. I have just a couple more 

questions from Senator Hatch. One is based on Senator Heller’s 

statement, which he submitted for today, which emphasizes that 

veterans have to be better informed and given the tools to understand the claims process and provide necessary information. I assume that you think that information is important and that we can 

improve that process. 

Mr. DE PLANQUE. Absolutely, and we did a lot of discussion with 

Senator Heller and Senator Casey’s office, and I am working on 

those and getting the forms, getting the information to the veterans so that they can make an informed decision. You know, a 

veteran might have a choice between doing two types of hearings. 

If I order a book on Amazon, it is going to come up at the end, and 

it is going to say, ‘‘Do you want it in 4 or 5 days?’’ It is free. ‘‘Do 

you want it tomorrow?’’ It is going to cost you 12 bucks to do that. 
33 

If a veteran can look at that and say, you know, do you want an 

in-person hearing, that is going to take 12 to 15 months. Do you 

want a video hearing? We can do that in 5 months? Some veterans 

might think, you know, ‘‘An in-person hearing is more important 

for me. I need to sit there right across the table and look that person in the eye. I am willing to wait a little bit longer to get that.’’ 

They make that informed choice because they have information 

from the VA about what that is going to be. Whereas, other veterans would say, ‘‘You know what? Fastest option, I am going to 

go with that.’’ But they are making the choice that—and in that 

way, that helps the VA reduce some of the load to then be able to 

process some of the other claims in time. It is a better sort of 

triage. By giving them more information, we are not limiting the 

veterans’ choices. We are giving them the information so they can 

make the right choice. 

Chairman BLUMENTHAL. You have talked about various numbers, we have been discussing various numbers, and as high as 

they are, they only cover a portion of the benefit claims. In other 

words, those numbers only cover disability claims and do not include various other categories of benefits. Do you have any assessment of the overall situation when those other areas are included? 

Mr. DE PLANQUE. Well, if you want to look at it, there are a number of other things that are out there. There are things that are 

called dependency claims. It could be a simple action. It is just adding—if I am a veteran and I have a husband or a wife, if I have 

a child that I want to add, because if I am disabled veteran above 

a certain percentage, I get additional compensation if I also have 

family members that I am supporting. Well, those dependency 

claims are only worth a tenth of a point in work credit. They receive a very low priority in the office because it takes work to do 

it and they do not really get a lot of credit in what they are graded 

on. 

Some offices, because of the pressure to get the production down, 

we have understood talking to some of the people in the offices that 

they have pushed those aside entirely. They are not working those 

dependency claims at all. Well, that is going to create another 

backlog. 

And keep in mind, for those veterans that are entitled to benefits 

based on having a spouse or based on having a number of children, 

if you are delaying that, you are delaying the benefit that they are 

getting. That is not fair. 

You also look at the appeals side of things, and this is something—so much of this attention is focused on the initial claims of 

veterans. We are not seeing the appeals side, both the decision review officers in the regional offices, but also the Board of Appeals 

and then eventually sometimes the Court of Appeals for Veterans’ 

Claims. 

But when we look at a veteran who is taking maybe 400 days 

to get an initial claim decided, maybe a year or two to get an initial 

claim decided, once that claim goes into appeals status and goes up 

to the Board of Appeals, you can be looking at 4, 6 years or longer. 

I mean, it is a massive increase in time, which is one of the reasons 

that we have always stressed working on getting it right the first 

time so the veteran does not have to appeal it. Well, if they are 
34 

rushing to make decisions on some of these things with some of the 

provisional decisions, that is a situation where now a veteran has 

to appeal that, and now they are stuck in a situation where they 

have an even longer wait. You know, you get through one line, and 

then you realize that there is an even longer line over here that 

you now have to go stand in. And that is unfortunate. 

We have recently had some conversations with both VA and 

some Members of the House and the Veterans’ Affairs Committees 

of looking at ways—there were ways we improved some of the 

speed on initial claims with the fully developed claims process, possibly looking at things that may apply to that for the appeals process and see if there are things that—lessons that have been 

learned already in helping to slowly chip away at the backlog on 

the one side that are going to be helpful on the appeals side. And 

that is important because the appeal is going to be an issue. All 

of the attention is focused right now on the initial claims, but those 

appeals are out there. Those dependency claims are out there. 

Those death benefits claims and things like that, those are out 

there, and they are not necessarily counted in the numbers that 

people look at Monday morning. 

Chairman BLUMENTHAL. Thank you. 

I have one more area of questioning that I would like to direct 

to both General Davis and Mr. Odom and Lieutenant Savage if he 

has any comments on it. And you alluded to it, General Davis, I 

think Mr. Odom as well, when you said that most employers are, 

in quotes, savvy enough to avoid leaving a trail of evidence to show 

intent or motivation when they discriminate. And, of course, under 

USERRA, liquidated damages depends on a defendant willfully violating the law. The proof of willfulness I would guess is one of your 

major hurdles, never having done one of these cases myself. But in 

your experience and opinion, does the standard need to be 

changed? Does the law need to be reformed in some way so that 

either a private plaintiff or even the Department of Justice, because it has to meet a similar kind of burden of proof, have to be 

changed in order to make the law more enforceable? 

Colonel ODOM. Senator, I will tackle that one first. I think you 

are going to have a difficult time redefining the word ‘‘intentional’’ 

in the statute, but I would urge the Senator to remember that even 

if you are able to prove an intentional violation, all you do is double 

the past due wages, which is really not adequate compensation. 

I know this may be beyond the purview of what you really wanted to hear, but the way to put teeth in USERRA is to allow proof 

of compensatory and/or punitive damages. 

When the mortgage industry straightened up and started flying 

right was when the DOJ came after them. I can file individual 

suits until the cows come home, and I am a rounding error to them 

on one day’s trade. DOJ comes after them, that gets their complete 

and undivided attention because they are nationally chartered and 

you hold their charter, and they are going to pay pretty much when 

DOJ says, ‘‘You need to cough up some dollars.’’ 

And I do not mean to be anti-corporation. I have represented corporations throughout my legal practice and hope—before today’s 

hearing, I had hoped to possibly do so after this hearing. But here 

is the reality: The potential for getting hit with a big damage 
35 

award makes people act better. And if that is what we need to do 

to make the employer see the light, then that is where the law 

needs to be changed, as opposed to requiring proof of intentional 

damages, which does nothing more—you could leave intentionality 

in there and then say and if intentionality is proven, then in addition to double the wages, you are entitled to—you are liable for 

compensatory and/or punitive damages, plus a mandatory award of 

attorneys’ fees. That is going to get big business’ attention, not just 

saying you have got to rehire him. With all respect, sir, I think 

that is where the—it might be a tough battle, but that is where you 

would get real teeth into the statute. 

Chairman BLUMENTHAL. Thank you. 

General Davis. 

General DAVIS. Thank you, Senator. I would like to defer that 

question to our expert, who is Captain Sam Wright, who was one 

of the co-authors of the USERRA Act, an expert more than I on 

this subject. 

Captain WRIGHT. Thank you. I just wanted to bring up Staff Sergeant—— 

Chairman BLUMENTHAL. Just for the record, sir, if you could 

identify yourself. 

Captain WRIGHT. Yes, I am Samuel F. Wright, and I am the Director of the Servicemembers Law Center for the Reserve Officers 

Association. 

Chairman BLUMENTHAL. Welcome, and thank you for your service. 

Captain WRIGHT. Thank you. And the case of Staff Sergeant 

Copeland in South Carolina, where he was re-employed, but the 

State of South Carolina Department of Corrections did not reinstate his health insurance, so he had to utilize the VA process, and 

that took—I am not talking about compensation. I am talking 

about medical care, and that took many months. And then when 

he finally was able to get a colonoscopy, it turned out he had colon 

cancer. You know, if they had complied with USERRA, it would 

have been discovered maybe a year earlier, and the chance of successful treatment would have been much better. 

That is not the kind of thing that under USERRA as currently 

enacted there is any relief for. You get compensation for the salary, 

wages, benefits, you know, maybe they would have to compensate 

what they would have paid for the health insurance, but not the 

damage to his life expectancy and his quality of life because of the 

delay in getting the medical care. 

Chairman BLUMENTHAL. Thank you. 

Lieutenant Savage, if you have any further comment? 

Lieutenant SAVAGE. Could Mr. Napiltonia—— 

Chairman BLUMENTHAL. Without objection. 

Colonel ODOM. Senator, we now have General Davis surrounded 

on both sides by lawyers. 

Chairman BLUMENTHAL. Yes, but he is a Marine. 

[Laughter.] 

Chairman BLUMENTHAL. If you would identify yourself. You can 

turn on your microphone and identify yourself, please. 

Mr. NAPILTONIA. Thank you, Senator. Joe Napiltonia. I am an attorney representing Lieutenant Savage. 
36 

What I will tell you is this: I just want to touch on what you said 

in your opening remarks about the damages. I think from a practitioner’s standpoint, you are exactly correct. The damages are not 

adequate enough to deter bad behavior by companies. They are just 

not. And something akin to Title VII damages would be a good 

starting point. The question begs, as a veteran myself, why is it 

that sex discrimination and race discrimination claims are treated 

better or offered more remedies than a servicemember who is discriminated against? It just does not make sense to me. So that 

would be a good starting point. 

In regard to the willfulness standard, for the record I think 

something similar to the Fair Labor Standards Act would be appropriate. I can tell you this: Many, if not most, of the servicemembers 

I represent have jobs that are low-paying. They are blue-collar 

folks, men and women, working class, whose damages are rather 

low, and so there is no incentive for an employer to do the right 

thing. They look at their ultimate exposure, and so it is rare that 

they are willing to come to the table and broker a deal. 

I will tell you this, Senator: The only way oftentimes that I am 

able to negotiate a deal is through the threat of the attorneys’ fee 

provision—which incidentally is not guaranteed. The statute says 

‘‘may’’ and not ‘‘shall,’’ interestingly enough. But it is the threat of 

having to go through a trial, and you as an attorney understand 

how significant that would be in Federal court, a couple hundred 

thousands dollars to get through a trial and pre-trial motions. That 

is ultimately the deterrent. The problem is there are not enough 

attorneys like myself and Colonel Odom who are willing to invest 

our time without getting paid and the significant amount of outof-pocket costs to litigate these cases. 

And so I just wanted to thank you and say that I think that you 

have it correct. The damages are very inadequate, and they do not 

deter bad behavior. 

Chairman BLUMENTHAL. Thank you. Thank you for being here 

today, and thank you for your representation of Lieutenant Savage. 

I want to thank all of the members of this panel, as well as the 

previous one, for, again, your service to our country and your service to the United States Senate in being here today. 

I am going to use the material that we have gathered today and 

what I hope we may be able to gather from you in subsequent 

questions that we may have for you in arming ourselves to seek 

some of the changes that have been described today in the disability claims system and most especially in USERRA and the Military Lending Act and other statutes that are supposed to offer better protection to our servicemen and -women and our veterans than 

they have right now. I know that you have served many individual 

men and women who have been victims of some of these abuses, 

and their stories really need to be told just like Lieutenant Savage’s has been told today. 

And, in closing, let me just offer my thanks again to Lieutenant 

Savage for your courage in coming forward. You know, this hearing 

is not about FedEx; it is not about big corporations. It is about 

really the rule of law and honoring our servicemen and -women 

who honor us with their service, just as you have. 
37 

I know that the Military Officers Association and a number of 

other organizations have submitted statements, and they will be 

made part of the record, as will all of your written testimony. 

[The statements appear as submissions for the record.] 

Chairman BLUMENTHAL. I will be speaking out and doing so on 

the floor of the Senate and every opportunity I have to try to build 

momentum for the kinds of reforms that we have been discussing 

today. So once again, thank you for your service and for your help 

today. 

We are going to keep the record open in case any of my colleagues have questions for you that they want to submit, and you 

can respond in writing. And with that, this hearing is adjourned. 

Thank you. 

[Whereupon, at 5:08 p.m., the Subcommittee was adjourned.] 

[Additional material submitted for the record follows.] 

(39) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
40 

STATEMENT OF 

COLONEL PAUL KANTWILL 

DIRECTOR, OFFICE OF LEGAL POLICY 

OFFICE OF THE UNDER SECRETARY OF DEFENSE (PERSONNEL & READINESS) 

DEPARTMENT OF DEFENSE 

BEFORE THE 

COMMITTEE ON JUDICIARY, 

SUBCOMMITTEE ON OVERSIGHT, FEDERAL RIGHTS, AND AGENCY ACTION 

U~ITEDSTATESSENATE 

ON COMPLIANCE A~D ENFORCEMENT OF THE SERVICEMEMBER'S CIVIL 

RELEIF ACT AND FINANCIAL CHALLENGES CONFRONTING 

SERVICEMEMBERS, VETERANS, AND THEIR FAMILIES IN THE CONSUMER 

FINANCIAL MARKETPLACE 

MARCH 27, 2014 
41 

Good Morning, Chairman Blumenthal, Ranking Member Hatch, and Members of the 

Committee. It is an honor to appear before you and represent the Depatim~nt of Defense and all 

of our great men and women in uniform. On behalf of the Department, I thank you for your 

assistance and support in protecting our Servicemembers and their families in the consumer 

financial marketplace. It is a pleasure to testify before you regarding the consumer financial 

issues we see affecting Servicemembers and their families and the Department's response to 

these issues and challenges. 

I should first like to provide a bit of background on the current state of the Department's 

involvement in consumer law issues and tinancial readiness. I will then turn my focus to the 

Servicemember's Civil Relief Act (SCRA), with specific focus on the Department's efforts to 

support compliance and enforcement thereof. Thirdly. I will discuss other financial challenges 

confronting Scrvicemembers .. and their families in today's consumer marketplace. These 

challenges arc many and varied. but I will focus primarily on issues and challenges that relate to 

the Military Lending Act (MLA)-- use of high cost loan products, particularly by Service 

members who have already exceeded their ability to repay their existing debt--as the Department 

sees this as the biggest, current financial challenge facing our Serviccmembers and their families. 

I will conclude with some very specific observations on where the Department sees the consumer 

credit industry going and the actions currently underway in very specific response to these 

developments. 

Department of Defense Financial Readiness Programs 

The financial readiness of Servicemembcrs and their families is essential to their wellbeing and their ability to contribute to the mission. Over the course of my career as a Judge 
42 

Advocate, I have assisted Servicememhers and their families in deployed and garrison 

environments, and know well that a Servicememhcr distracted from the tactical mission hy 

financial issues cannot be completely mission-focused. Thus, the Dcpanment has, for over a 

decade, created. refined. and enhanced financial readiness programs predicated on 

Scrvicemembcrs and their families receiving reasonable protections, acquiring at least a basic 

understanding of finances. and receiving access to helpful financial products and services. 

Since the term ''Financial Readiness" was lirst coined in 2003. the Depmiment has 

continually improved and expanded its financial readiness campaign to increase Servicemember 

awareness of saving and tinancial stability. and enhance understanding of linancial products and 

services. Utilizing a combination of education. resources, programs, and protections (such as the 

SCRA and the MLA), the campaign's goal is to reduce the financial stress on military families, 

thereby enhancing overall mission readiness. 

The Financial Readiness Campaign involves eight pillars of financial readiness: 

I. Maintaining good credit 

2. Achieving financial stability 

3. Establishing routine savings 

4. Participation in the Thrift Savings Plan and Savings Deposit Program 

5. Retention of the Service-member's Group Life Insurance and other insurance 

6. Utilization of low-cost loan products as an alternative to payday lending and 

predatory loans 

7. Use of low-cost Morale. Welfare and Recreation programs such as the 

Commissary and military exchange system 

8. Preservation of Security Clearances 
43 

The campaign has been effective and is on-going. Scrvicemcmber participation in the 

Thrift Savings Program is strong. The Savings Deposit Program. available to all deployed 

Servicemcmbers. enjoys similarly strong participation rates. The campaign is augmented by 

nonprofit organizations that produce programs and campaigns such as ''Saveandlnvest.org'' and 

·'Military Saves." The recent ""Military Saves'' campaign was very successful. 

An essential element of our Personal Financial Readiness Program is proactive life cycle 

financial management services. The program addresses the effects of financial decisions on 

personal and professional lives. provides resources needed to make prudent consumer decisions, 

and offers related services and support. 

A variety of resources are available to help Serviccmembers and their tiunilies avoid the 

consequences of poor financial decisions. and to put them on the path to financial freedom. 

Education. counseling, and training are available both on-line and in-person to military members 

and families of all components. The Department has Personal Finance Managers (PFMs) at 

every military installation who provide financial counseling. education, training, and services. 

All PFMs hold a nationally recognized financial counselor certification. 

As part of the DoD Military Family Life Consultants program, the Department has 

additional resources in the form of Personal Financial Counselors who augment other resources 

and provide ·'surge" capability to units or installations at critical times or with critical needs. 

Other excellent resources, such as Military One Source (MOS), a confidential, 

Department of Defense-funded program providing comprehensive information on military life at 

no cost to active duty. Guard and Reserve Component Members and their families, are available 

24 hours per day for all Service members and their families. MOS offers free and confidential 
44 

financial consultations over the phone or face-to-face, in addition to providing specialized 

financial and tax planning consultations. The "Money" section of MilitaryOneSource.com 

provides financial information and resources that include calculators. tips. books and CDs. and 

personal finance newsletters. 

The Department has also partnered with nationally-recognized, financial literacy nonprofit organizations. Groups like the Consumer Federation of America (CF A), the Better 

Business Bureau Military Line, and the Financial Industry Regulatory Authority Education 

Foundation provide tremendous resources free of charge. The Department and CF A conduct the 

tremendously-successful Military Saves Campaign every year. DoD also partners with the 

Department of the Treasury and the Federal Trade Commission (FTC)-just two of more than 

twenty such organizations with whom we work in Treasury's Financial Literacy and Education 

Commission to address consumer awareness. and provide information on identity theft and 

insurance scams to Servicemembers and families. 

The Servicemember's Civil Relief Act 

The Department recognizes and appreciates the critical importance of the SCRA. It is 

clear that no other statute provides such a unique breadth of benefits and protections for 

Servicemembers. The purpose of the SCRA is a lofty one. to provide Servicemembers' peace of 

mind. knowing that their personal affairs and economic interests will be protected while they put 

their lives on the line in defense of our Nation. and the Act has lived up to that goal. 

The Act's protections are broad and diverse. It protects Servicemembers from evictions, 

default judgments. and foreclosure. It allows them to delay judicial proceedings and to place 

caps on their interest rates. It also provides them and their spouses certain tax relief. Over its 
45 

long history of more than 70 years, it has lessened some of the many burdens associated with 

military service. 

Congressional Efforts to Strengthen Enforcement of the SCRA 

Congress has continued to play a critical role in protecting our Servicemembers and their 

families. Over the last few years Congress has strengthened the SCRA's protections through 

such measures as the Veterans· Benefit Act of2010, which provided for additional civil 

enforcement. as well as monetary damages and attorneys' fees. It also clarified that the Attorney 

General has similar enforcement authority on behalf ofServicemembers and other aggrieved 

persons. 

Congress has extended the 6% interest rate cap for pre-service mortgage obligations. 

This interest rate cap, which had been in effect for decades. had previously applied only to actual 

periods of active duty. Now the interest rate cap for pre-service mortgage obligations has been 

extended for an additional 12 months after leaving active duty. Congress also amended the 

SCRA to extend protections from foreclosure on pre-service motigage obligations for twelve 

months after the Service member leaves active duty .. 

SCRA Education and Enforcement 

Congressional support through the SCRA. and other measures, however, means little if 

our Servicemembers arc not aware of their rights. Thus. the Department has developed programs 

to ensure that Serviccmernbers know about the benefits and protections of the SCRA. This 

educational process involves coordinated and overlapping efforts to alert Scrvicemembers and 

their commanders of these benefits and protections and then to ensure that the proper counselors 
46 

are there to help the Servicemember fully understand the nuances of the relevant laws and 

receive their full protections under the law. 

The Department's efforts to educate Servicemembers and their families center around 

installation readiness facilities, pre-deployment and re-deployment process facilities, and reserve 

component mobilization and demobilization processing centers. These reserve component 

processing centers have been of critical importance because two oft he most important economic 

protections and benefits-the 6% interest rate cap and the extension of foreclosure protectionsapply only to pre-service obligations and thus efTect predominately Reservists and National 

Guardsmen called to active duty. As a result, SCRA and related financial training at predeployment and re-deployment processing facilities is more detailed and helpful than ever 

before. 

Thus, it is with pride we assert that SCRA education, compliance, and enforcement is a 

"good news story." Certainly there have been accounts of mortgage foreclosure abuses and other 

prominent SCRA violations. We know well, the ravages the economic crisis and burdens of 

more than 13 years of sustained conflict with related deployments have had upon the financial 

fitness of military families. 

As it relates particularly to the SCRA, however, we have been effective in curbing 

foreclosure abuses against military personnel and their families. While there may still be some 

foreclosures in process or in the ''pipeline," it appears that the majority of the abuses seen in the 

past have been curbed. This is the result of sustained and hard work within the Department, with 

other government agencies, as well as with the financial industry. 

The Depmtment is fortunate to enjoy a very cooperative working relationship with other 

federal agencies relating to consumer Jaw issues-the Department of Justice. the Consumer 
47 

Financial Protection Bureau (CFPB). the CFPB's Office of Serviccmember Affairs (OSA), and 

the Office of the Comptroller of the Currency (OCC). to name just a few. Federal enforcement 

actions brought by our colleagues at Justice have been swift and effective. State and local 

compliance and enforcement efforts are critical. \Ve are grateful for our cooperative working 

relationships with consumer advocates and other organizations such as the CFA and the HOPE 

NOW Alliance, dedicated to assisting all persons with their financial needs-but who are also 

tremendously dedicated to our military families. 

We have been and remain engaged with the consumer financial industry. If we are to 

represent and protect our Servicemembers and their families-and we will-·-·it is essential to 

have open lines of communication with the industry. We are proud of our cooperation with the 

American Bankers Association. the Association of Military Bankers of America, the Credit 

Union National Association, and the Defense Credit Union CounciL in efforts to keep them 

apprised on the SCRA and the MLA. and advise them of issues affecting our Force. Our close 

working relationship with the Financial Services Roundtable and the Housing Policy Council has 

allowed us to advocate frequently and effectively on financial issues affecting the Force. The 

industry remains supportive and complementary of the Department's enhancements to the 

Defense Manpower Data Center's database capabilities. providing industry with real-time, 

public-access, large batch data search capabilities and allowing industry to identify military 

customers and provide them SCRA and other benefits to which they are entitled. Other 

initiatives include fon11S, accepted by the financial industry, that allow Servicemembers to 

invoke their SCRA protections more easily. Our work with industry and other agencies has 

already produced great developments regarding protections and benefits for military families 

disadvantaged by Permanent Change of Station moves. 
48 

In conclusion. while there may be more foreclosures on the horizon. and we arc not yet 

out of the .. economic woods;· we are very encouraged by solid progress on the SCRA front. 

The Military Lending Act and Related Financial Challenges 

Despite the aforementioned successes on the SCRA front. we have commensurate 

concerns regarding small dollar lending and related products and services. Seven years ago. the 

Depmiment recognized there were some specific lending practices causing problems for 

Scrvicemembers and their families which could not be adequately addressed through education 

programs and awareness campaigns. Significant Departmental and Inter-Agency action resulted 

in our Report on Predatory Lending Practices Directed at Members of the Armed Forces and 

Their Dependents (2006). and subsequent Congressional action in the fonn of the Talent 

Amendment. commonly referred to as the Military Lending Act (MLA) (Sec 670 of the John 

Warner National Del'ense Authorization Act for FY 2007). The MLA gave the Department 

authority to write a regulation to define .. credit" subject to the limitations posed by the MLA. 

With the assistance of the Prudential Regulatory Agencies we did just that. and the 

resulting rule (32 CFR Part 232) covered tax refund anticipation loans and closed-end payday 

loans and vehicle title loans-- both of which are tightly defined. This good work stamped out the 

majority of abuses in the areas regulated, and we have relied upon the enforcement efforts of 

Federal and state regulators to great effect. 

The Department has remained vigilant in this area. Annually. we send a representative to 

the National Conference of Consumer Credit Administrators to ensure uniforn1ity in compliance 

by covered creditors. Each year the regulators have reported that their examinations have found 

compliance with the Rule and no need for enforcement action. In some states where such loans 
49 

are authorized, but in which enforcement authority has not been provided, the Department has 

engaged the States, requesting they make technical amendments to their statutes allowing for 

administrative enforcement. To date. 37 States either do not authorize these loans or provide 

their regulators with adequate administrative enforcement authority. 

The Department has also been working with the FTC and the CFPB to assist in recording 

violations of the SCRA and the MLA in the FTC's law enforcement database- Military Sentinel. 

DoD legal assistance attorneys and financial counselors assist military clients with recording 

instances of fraud, deception. abusive practices, and identity theft into the database so U.S. 

Attorneys, State Attorneys General, Federal and state regulators. and other law enforcement 

agencies have access to allegations. 

Our Servicemembers. families. legal assistance attorneys. and financial counselors have 

informed us that the MLA legislation has been extremely effective in stamping out abuses 

involving the types of credit covered. In addition, military Relief Societies, military banks, and 

credit unions have assisted Servicemembers and families in need. llowever in response to 

changes in the marketplace and Federal and state policies, lenders have sought. and are seeking, 

to create products and services which fall outside of the MLA and the enforcement actions 

mentioned above. 

Several years removed Jl·om its enactment, however, our financial counselors and legal 

assistance attorneys still see clients who have payday or vehicle title loans. They also report that 

internet and overseas opportunities exist outside of the law. and that some unscrupulous lenders 

-and even borrowers- still attempt to skirt or evade the law. by entering into loans that are 

covered by the MLA. Additionally, many lenders now offer loans in addition to those covered 

by the MLA that charge interest greater than 36 percent and contain terms that are outside of the 
50 

current definitions in the implementing regulation for the MLA. The credit marketplace has 

changed since 2007 and we anticipate that it will continue to adjust to market demands and 

changes in state and Federal policy. 

Lending over the internet remains an issue. with the most egregious offenders located offshore or outside the United States. thereby avoiding coverage under the Act. The usc of 

allotments in consumer credit transactions and the abuse of high cost installments loans are also 

of concern to the Department. 

The Department's Efforts 

This has not escaped our-or Congress'-attention. and at the direction of the Congress, 

the Department is studying changes in the credit marketplace and their effects on 

Servicemembers and their families. DoD posted an Advanced Notice of Proposed Rulemaking 

(ANPR) in the Federal Register on June 17, 2013 through August l, 2013, requesting public 

comment on the report request made on pages 782 and 783 of House Report 112-329, to 

accompany H.R. 4310. Specifically. the ANPR requested the public respond to the [()!lowing 

four questions: 

(l) The need to revise the implementing regulation (32 CFR Part 232), with special 

attention to the definition of covered consumer credit: 

(2) If there is a need for change. what should be included in any revision and why; 

(3) What should not be included in any revision and why: and 

( 4) Examples of alternative programs designed to assist Scrviccmembers who need 

small dollar loans. 
51 

The perspective provided in the responses depended primarily on the role of the 

respondents or the constituents the respondents represented. Eleven letters from 5 bank 

associations. 7 credit union associations/affiliates/councils/leagues. 2 financial 

services/installment lender associations. one credit union and one financial services company 

expressed their satisfaction and support for the current regulation and warned against the 

potential for unintended consequences ifthe scope of the definitions are extended. Four of the 

responses from credit union associations and the one financial services company went further to 

say DoD should continue to take targeted action through the regulation against problematic 

lenders. Three responses from rent-to-own (RTO) companies expressed that RTO is not credit 

and therefore should not be subject to the regulation and that RTO is ·'an attractive marketplace 

choice for many. including some service members." The response from the online lenders 

defended the need for access by Servicemembers to small dollar, short term credit. Seven letters 

from 45 consumer advocacy groups advocated extending the scope of the definitions in the 

regulation, and 44 consumer groups recommended extending the scope of the definitions to 

cover all credit subject to the Truth in Lending Act (TlLA). One of the Military Relief 

Societies, a national veterans support organization. and two individuals also provided input to 

extend the scope of the definitions in the regulation. 

The perspective of agencies within state governments has been particularly insightful to 

the Department. since many of these organizations have oversight and enforcement responsibility 

over several of the credit products in question. Fourteen State Attorneys General recommended 

covering the full range of credit products and advocated including overdraft protection and RTO. 

Three State Departments of Veterans Affairs and the association representing 49 state credit 

regulators recommended covering all credit subject to TILA. Finally, a letter signed by 54 
52 

Members of the House of Representative recommended extending the scope of the definitions to 

close loopholes that allow continued access to payday and vehicle title loans. and a letter signed 

by 23 Senators advocated extending the scope of the definitions. along with covering installment 

loans. 

Loan providers expressed their concern that changes in the MLA may have unintended 

consequences for military borrowers (such as limiting credit), add to their regulatory burdens, or 

restrict their ability to offer high cost loans. Consumer advocates and state officials said that if 

the MLA has been designed to protect military borrowers from high cost loans (even if limited to 

payday and vehicle title loans). the MLA cannot fulfill its role without considering loans with 

longer terms (that can feature installments). open-end credit, and increased principal. These 

opposing viewpoints lead to the important question whether the limitations provided by the MLA 

since 2007 can be continued without creating undesirable consequences. 

As a result of what we have learned, the Dcpmiment assembled the Prudential 

Regulatory Agencies and the CFPB to explore revisions to the regulation. We established a team 

of skilled economists and analysts to assist us in this initial rulemaking, in addition to a 

similarly-skilled team of drafters. From all of these sources, and with all of this assistance. we 

will determine the best course our proposed rulemaking should take. 

As our work progresses. and in response to these challenges and in support of our 

Servicemembers and their families. the Department remains proactive and vigilant; employing 

multi-faceted education and training programs. and leveraging all available resources, including 

extensive cooperation with all of the Agencies and partners described above. 

The Services Legal Assistance Programs have continued to provide expert legal 

assistance in all consumer law areas. These services, focused where needed at the installation 
53 

level, are available to assist in a large number of consumer law related areas. These include 

services in all the areas noted above, to include the burgeoning areas of suspect auto 

loans/purchase practices. deployment-related SCRA violations, and aggressive debt collection 

practices. 

The Services continue to designate consumer law matters in their highest tiers of 

available services and provide specialized training to all legal assistance practitioners. The 

Department's long-term association with the Legal Assistance for Military Practitioners 

Committee of the American Bar Association (ABA) and its Pro Bono Project (PBP). enables the 

Services· Legal Assistance organizations to refer eligible clients to the PBP, where they receive 

both in- and out-of court-representation from local volunteer attorneys who are subject matter 

experts in consumer law. The PBP has been so successful that the ABA has pushed the concept 

to state and local bar associations. who are now offering very similar programs in conjunction 

with their local military installations. 

The Way Ahead 

Current efforts of the Depatiment, other Government agencies, and non-profit 

organizations are important. But even more important are future efforts to protect and advocate 

for our Servicemembers, the way ahead on consumer law issues affecting the Force. and how we 

work to meet those challenges. We remain committed to balancing regulation with education 

and assistance to maintain the financial readiness of the force. The MLA and implementing 

regulation have done what was intended over the past seven years. and the Department plans to 

maintain a steady approach to the implementing regulation to balance the protections offered 

through the regulation while sustaining unimpeded access to helpful financial products. 
54 

On behalf of the Department, I thank you for your assistance and support. It is my 

privilege to appear before you and I look forward to your questions. 
55 

NOT FOR PUBLICATION 

UNTIL RELEASED BY THE 

SENATE COMMITTEE ON THE ,JUDICIARY 

STATEMENT OF 

DW AIN ALEXANHER, II 

SENIOR CIVILIAN ATTORNEY 

REGION LEGAL SERVICE OFFICE, MID-ATLANTIC 

UNITED STATES NAVY 

BEFORE THE 

SENATE JUDICIARY SUBCOMMITTEE ON OVERSIGHT, FEDERAL RIGHTS AND 

NOT FOR PUBLICATION 

UNTIL RELEASEH BY THE 

AGENCY ACTION 

ON 

MARCH 27, 2014 

SENATE COMMITTEE ON THE JUDICIARY 
56 

Chairman Blumenthal, Ranking Member Hatch, and distinguished members of this 

Subcommittee. as a legal assistance attorney in the United States Navy, I am honored and 

humbled to have the privilege of representing the >Javy's Judge Advocate General's Corps and 

the serviccmcmbers we support 

I am a civilian legal assistance attorney. who. like all uniformed and civilian legal 

assistance attorneys. works to support and enhance sailor and mission readiness by addressing 

their legal readiness issues. From my practice I am constantly reminded that our national 

defense begins with the individual servicemember. There is and has to be a great deal of focus 

on the military training and equipment that will be applied in battle. It is important to remember 

that the servicemembcr is not a machine that can be programed. fueled. launched and repaired. 

Servicemembcr mission readiness must include the legaL financial. medical, and familial issues 

that are part of the human element. Denial or inattention to the human elements of readiness can 

impact the servicemember negatively. affecting focus, morale, dedication. and in the endsuccess and survival. My otTice focuses on the legal needs of the servicemember. 

One of the best protections the law provides the servicemember is the Servicemember's 

Civil Relief Act (SCRA). The Act contains 60 statutory sections that among other rights and 

beneJits provide for the: reduction of interest rates, termination of certain contracts, stay of civil 

proceedings, reopening of default judgments, tolling of the statute of limitations. and court 

intervention prior to action to foreclose or reposse;;s property. 

Working with the SCRA I have seen its impact on the servicemember, the military 

family. and the businesses that engage in commerce with the servicemember. I have learned that 

our national defense comes at a cost to everyone. The servicemember risks her life and faces the 

uncertainty of the diverse defense needs of the Nation. The servicemember's family deals with 

frequent moves. fear and anxiety over dangerous duties, deployments. and the possibility of 

prolonged absences. Individuals engaged in commerce manage the cost associated. with the risk 

that the servicemember may be unable to comply with an obligation due to military duty or that 

additional costs may be incurred in transactions with the military. The SCRA provides the men 

and women of our armed forces flexibility in their private lives enabling them to provide service 

to the nation without being penalized and distracted by their inability to comply with some civil 

matters. In providing this flexibility and protection the SCRA strikes a balance between 

individual rights and the nation's need for a mission ready fighting force. 

The SCRA embodies a public policy extending and protecting the rights of 

servicemembcrs that dates back to at least the civil war where Congress acknowledged that a 

focused servicemember is vital to successful mission accomplishment. This public policy and its 

implications for the nation's defense can be thwarted by the application of one provision of the 

SCRA. Section 517 of the SCRA allows the servicemember to waive any and all rights provided 

by the Act. It sets forth the conditions f(lr this waiver. but in comparison to many other statutes 

that establish a policy protecting a national interest. the SCRA does not expressly and 

specifically prohibit the prospective use of the waiver or any other law that would act as a 

waiver. The laws of many states require that a valid and enforceable waiver be voluntarily 

executed with an understanding of the rights being waived and the facts that give rise to the right. 

2 
57 

This knowledge requirement is especially important for the scrvicemember who may be called to 

serve at any moment in response to national or international developments. The use of 

prospective waivers removes the clement of knowledge and makes the waiver unenforceable. 

The application of waiver requirements found in state law is not an effective defense for 

servicemcmbers. Young sailors and soldiers do not have the financial resources or legal 

understanding to argue the law. They are trained to follow orders and regulations. The 

prospective waiver on its face appears to be lawful. For Example: Section 535 of the SCRA 

allows a servicemember to terminate a lease any time after she receives orders to deploy in 90 

days or more or for pennanent change of station (PCS). The servicemember who signs a 

prospective waiver \vith a landlord and then receives orders to deploy or PCS may not know the 

law or challenge the waiver. This servicemember will follow the landlord's direction that she 

waived her rights under the SCRA and comply with the written contract. This servicemember 

will be subject to additional costs and penalties that could: prohibit her from tem1inating the 

lease, expose her to financial risk from the vacant property, add transportation costs. 

substantially increase living expenses, and/or prevent her from sending her family home to a 

more secure and supportive environment. The emotional stress placed on the scrviccmember and 

her family from this housing situation can be devastating. Most of our servicemembers will 

follow the terms of the contract and waiver to their detriment. The fact that prospective waivers 

are unenforceable does not matter to the young servicemember when she does not know the 

truth. 

Individuals and companies employing the prospective waiver seek to avoid the risks and 

cost of conducting business with the men and women of the military. There are two primary 

reasons for this: they believe that the law as applied in their case against is unfair and/or that the 

servicemember does not need to use the law. 

The perception that the application of a given law in a given case may be unfair is not 

unusual and in fact may be correct in some cases. The application of the SCRA, at times. may 

appear unfair. as is true with many of the statutes and regulations imposed on an industry to 

effectuate national policy. However, when the policy objective of the law is a national priority, 

the needs of the nation must prevail over the individual. The avoidance of the rights afforded 

scrviccmcmbers under the SCRA through waiver, arbitration, or declaration remove the balance 

imposed by the SCRA and shift the burden for mission readiness to the individual 

servicemember. Once this burden is shifted, the commanding officer can no longer issue an 

order to deploy knowing that the civil legal matters of his servicemembers are protected during 

the deployment. The members of her unit will have to address the: distractions of law suits. loss 

of property. and denial of rights. The use of the waiver effectively places command and control 

of this aspect of readiness in the hands of the individual or company seeking to enforce the 

waiver. 

When an individual or company evaluates the rank, duties or status of a servicemember 

and determines that for this individual the SCRA should not apply, they fail to understand the 

importance of every individual in the anncd forces. Each servicemember is part of a unit and 

that unit is an integral part of the command's overall mission. There are no superfluous 

3 
58 

members of a command or mission. An E-3 is a junior ranking enlisted scrvicemember. This 

individual may be trained to maintain any number of complex oJTensive or defensive systems on 

a ship. One such defensive system is the close in weapons system (C!WS) that protects our 

warships. It detects incoming threats and propels a wall of bullets to destroy the threat. This E-3 

is important to the commands mission and the ships defense. Distractions to this individual can 

result in faulty maintenance and weapon malfunction. The cook is a position in the military that 

may not be considered an element of combat; however, that cook may prepare meals for 500 

sailors on a ship. That cook is critical to the command's mission. The health and morale of an 

entire command can be impacted by one cook. If he is distracted due to legal issues and makes a 

mistake he can give those 500 people food poisoning. A company or individual cannot be 

allowed to select a servicemember and determine that because of his rank or position he should 

have fewer rights than others. 

The application of prospective waivers under the SCRA's waiver provision has the 

potential to undermine and the entire Act and the national policy is supports. It is a natural 

function of an etTective business to want to control costs. However. if the use of the prospective 

waiver is considered an acceptahle means to control costs, the provision will be employed and 

deployed by all types of businesses: mortgage lenders, banks. credit unions, sub-prime lenders, 

automobile dealerships, motor vehicle leases, furniture merchants, service contract companies, 

storage facilities. and others. Any entity that disagreed with the application of the law could 

require a waiver. When one company obtains an advantage because of the waiver, then others 

will follow. Once the market is saturated with waivers in contracts the election is no longer 

voluntary and the impact on the SCRA is disastrous. A company or individual should not be 

allowed to undermine this important policy and determine that their needs are more important 

than either the servicemember's rights or the nation's defense. 

We do our best to educate servicemembers on their rights and to protect servicemembers 

when their rights are violated. It is important that the SCRA is clarified to allow a waiver only 

aJler the event giving rise to the right for which the waiver is sough exists and is understood by 

the servicemember. 

4 
59 

C:HASEO 

0ear· FJill 

We m respo!idl!li to your 111*\t requeat ~!bout a ~holt .. ibr tb11 !llCO\Ult above. You reoently e.Wd 

about your ellalblllt' tO parllclpate lu thf Jbort aa!e option tltrollgb OUr~ Aasls!antoe 

~t. 

W~wOU!d Jib to teb this op~lty\\1 remind yoU of~ ~evdlabl• \\I)'OillltlderllM 

Servloamembe!J Clvll iellef~{"SCKA"). YOIImqbG~slblei!Jrll!l ~ nrte~ of6'Kpwywr oo.)'Our low ~you 111t ort ae1M duty lllll fbr 011&:\lftl' aftotyouriC!!vo dutyieMce tlldll, In 

mldltilm. you nir.Y i{ulllfY1br ~OM trom ibreelosure, lllllo, and nizunurfprop&rty \'ihtlt on acti-ve 

<lui¥ and lornlno 111011tbnftet;your IW!!vt duly military~ ooda. }IUrlber, you:~ bul!glble ibt 

pl'(l!eetlollf b ~credit~ w evlotlan. You 1114Y Wish to speak with en~ about 

tho ben~ po!entfelly ~VIIIllblt to you boft:te ClOIIlimllilg wUh tb& proposed sbort $!dO. 

lfyao $1lliwlshto~ tn O!d~fwusto be&lntbashCI!tsale~ tll$attachod Vo~ur~WySCRA 

Waiver mutt be slanll4 and l'f!JUMe\f to us at the aMress Ql' • num!m" pl'OV!ded bolow.lfth• Walvw Is ~d, ~.end orlnltTa1ed1'1A ~ !twtll bsill;lll$fdllfe<l tho 81BlRl 1111 Ill! orlglnel alpt~~re. 

~Mail: Clwe Fu11'llhl:lel'l Center 

110 South Ash St 

Sutld20() 

Gllll1dala,. CO 80246 

(&65) 2SZ.S682 

P~J~Rdlitalt!Qitlllle opdllnw!ll notbooonaldmd mrtll a.sizned llopJI ofUI11 meloml~olunta:ry SCM Waiver !s I'CCI'llved b.Y us at tl\!1 ad<lrlln Ql' tltx pn;n•!dod ll1llm. · 
60 

!Cknowttdp th1t I tnay be lltfjlb!a fct promcttons tmtler the Stl¥b 

me.mbers blfef Act ("SCAA"}.I um!ei'Stllnd tmttht bamriltsoftht seRA fartllilbl'tt Hrvlet 

mambers Include, for e&I'Qtn debt!, a mmnum Mtel'e$t rate of 696 peryearwlltltl on ac:I:Nt duty and for 

on~e y.ar ifter1he completion ofact!va ctuty servfce.lll addition. the SCM provkles qualify! til~ 

member& prottcUon from Slit, fctldosure, or !allUre Of P~rtYt or evlct!Oilt tfUlirll a~ dUW an4 

fclr nine months e.fterthe complttson ohttll/t duty n:Met, lnd ftom defauttjudgments. 

I hmal~nstrvlctd by JPMorpn Cbtse Bri, AA ('dlaae"). The lOan nummon my lGlln k-

••• Tilt loin hln currtllt llllptld prtnd~l ba!tnte of I" ?1(1( as of MIYl7, lOU. 'I'M 

klan It~ by an rnttrtrt ll'l pNIJ*t.Y lom.d at • I 

td<tlow!IKfltttl•t•n nMt:l mtml:ierudtflned bytht seRA, I mayba alljJibltJbrQertafnseAA 

p~ctfoN. ontht.l®n.ladcnovmdp ~:hit u • sarv!ct mamber,u det'lntd by the ~A. Chase ~~ttends 

1ddttlonal benefits for loa~ bl1yond those m~utred bV tbt SCAA. Tbt banlftts mllllbk to $eNICfl 

mambartunder Chase pofleV may tr!Cilude loan modtfimkms, de ads In rttu ot'I'Ontctosure. and 

forbnraneat •monc other loss mltfptkln ~~In lddltkln. Chell pclley ~V provfde fur 

lntemt:raw btloW~ and foreclosure ll~ctfon beyond l!lne months aktht eomplet!On ofmlllttry 

wvfee.ln tddltlont Chtii may provlde fw ~tonal fo~ prote*nsfOriQMI duty m\'lce · 

mtmbtnln some dt'eumttl!lei~t. . · · 

t ldalowildp and und&rmnd tllewrtOUJ prctet:tfl>ns and/or mdts ~nttally SllillabiUQ•rvlce 

~bar.s under th• SCRA and elmo policy, UnderstllndlnJ tbm baneftt1, 1t Is my Tnttnl ft!l' ChaM to 

l)'lpi'OVI thalhort nle oftl'tl prop.ny loartl!d 1t lacknowlad&l 

that Chue h1s In no Wtl/ IO!lcltad, nqulred, d4manded, cr oth~ ~d tlmt 1 wetva llfl'/ of my 

ScAArl.sbti-1 ~wv, beenl4vlmtthtUmoukf SHit the ed.vke ohn tttemeypr!Crto execut~ncthll 

welv&r.l he,ve t!so been advised that 1 should .m~k profmlonal tal! llMet l'f!Pfdlna thee~ Ofthts 

walvlr.lacknoWIIdle that I have read amf underitlnd thff wa!Wir. No eondftlons onuoml!et were 

mJde'ttlll!lln conjunetlPrt Wl'th ~1$ waf\ler.l he!'4by, ~wl~and \!Olumart!y, ~to 'tilt short 

Slllt oftht propertY referenced •hove, llrnl walvund summdenny and all rJghti tO whidr I mav be 

tllglb!t untrer tftt SCAA tn conl'l!letion witt! 'tit~ ~w. 1'htl walvtr t1mwttd dutlnS or atttr my pt~tlod of 

ac:t~ve~. 
61 

LEASE ADDENDUM REGARDING 

U.S. SERVICEMEMBERS' CIVIL RELIEF ACT 

(Each Tenant must sign a separate Addendum) 

::;> 1. Reason for Addendum. In order to balance the needs of Landlord and Tenants and 

allow Tenants that are service members in military service with the Army, Navy, Air Force, 

Marines or Coast Guard (whether on active duty with the regular armed services, National Guard 

or Reserves) or commissioned officers of the Public Health Service or the National Oceanic and 

Atmospheric Administration (collectively "Servicemember") to meet their military service 

obligations and, further, in order to comply with the requirements of the U.S. Servicemembers' 

Civil Relief Aet ("SCRA") and the Virginia Residential Landlord Tenant Act ("VRLTA"), 

Landlord and each Tenant have executed this Addendum. 

2. Military Status; Notice Requirement. The tmdersigned Tenant_ is or_ is not 

a Servicemember entitled to benefits under the SCRA. Tenant agrees to notifY Landlord at any 

time, if and when Tenant's military status changes, they are required to go on temporary duty 

("TDY") for three (3) months or more, they receive orders for a permanent change of station 

("PCS") or their duty station changes or is scheduled to change, or if Tenant's military duties 

otherwise interfere or reasonably may interfere with Tenant's duties and obligations tmder the 

Lea.<~e. 

3. TDY and PCS. Tenant acknowledges that Para. of the Lease requires that 

Tenant notifY Landlord if Tenant is not going to occupy the property or be away from the 

property for more than seven (7) consecutive calendar days, even if Tenant goes on TDY or 

receives orders for a PCS. If such cvent(s) occur, Tenant shall timely notifY Landlord prior to 

such TDY or PCS (except in emergency situations) and make suitable arrangements to ensure 

that the remaining tenns and conditions of Tenant's Lease are satisfied. Specifically, Tenant is 

reminded of their duty to timely pay any and all rent due, protect the property, and keep the 

property secured. 

~/, 4. Waiver ofSCRA; Non-Waiver ofVRLTARights. In accordance with SCRA § 

517 (as amended or replac&lfrom time to time) Tenant hereby waives all rights, duties and 

liabilities of any kind tmder the U.S. Servicemembers' Civil Relief Act, including but not limited 

to those provisions relating to automatic stays of proceedings for eviction, for nonpayment or 

rent or other breach of the Lease. This waiver shall not be deemed or construed to reduce or 

adversely effect Tenant's rights reserved under the VRL TA, namely Va. Code Ano. § 55-

248.21 : l (Early Tenninatitm of Rental Agreement by Military Personnel), including but not 

limited to Tenant's right to terminate the Lease early if certain conditions relating to ID Y or 

PCS occur. All other rights, duties and obligations of Landlord and Tenant set forth in the Lease 

shall remain unchanged and in full force and effect. 

LANDLORD: TENANT: 

Sign and Print N arne (Date) Sign and Print Name (Date) 
62 

m 

RE'\LlDR" VIRGINIA ASSOCIATION OF REALTORS® 

RESIDENTIAL LEASE 

@ 

EQUA.tHDUSJNG 

OPPORTUMITY 

(This is a legal!)' binding contract. If not understood, seek competent advice before signing.) 

EFFEC'l'fVE DATE OF LEASE: 

This Properly will be shown and made available to all persons without regard to race, color, creed, religion, national origin, 

sex, farnllial status) handicap or elderliness in compliance with all applicable and fCderal, slate and local fair housing lav.,•s 

and regulations. 

THIS LEASE AGREEMENT (the "Lease") is made as of the __ day of ______ , 20_, by and between 

---------·· ·--------·-·" -------------("Landlord))) whose 

addre~s is 

through ~------ ___ ----~----~----------~-- ··---- ("Listing Brok~~:.~. who 

represent.<; Landlord) whose address is -~--------~-~~---- ___________ , 

("Ten~ 

and _ ________ _ --~-· .. __ ... ___ ~- ---~ _______ . ·--·---- ______ ("Leasing Broker," who does~ 

or does not 0 represent Tenant). Listing Broker is sometime hereinafter referred to as "Agent". 

NOW, THEREFORE, in consideration oftbc mutual covenants and conditiom contained therein, Landlord and Tenant agree 

as follows: 

Landlord docs hereby lease and demise unto Tenant, and Tenant docs hereby lease and take from Landlord the Dwelling Unit 

hereinafter described (the ~•nwetHng Unit") on the terms and conditions set f01ih in this Lease. 

I. SUMMARY OF LEASE TERMS: 

b. Thrm 

Commencement Date of Lease: 

Length of Term is: 

Lease Tcnn Ends: 

c. Rent 

Monthly Rent 

Per Diem Rent: 

Prorated Rent (for 

Additional Rent: 

Non-Re\\mdable Lease Fee: 

to 

Non-Refundable Pet Fcc. if applicable: 

Pet Rent, if applicable: 

Damage Insurance: 

Actual cos{ of policy: 

Adminisuative fee: 

Opt-out fcc: 

Renter's Insurance: 

Actual cost of policy: 

Administrative fee: 

Opt-out fee: 

VAR FORM200 REV. 8/11 PAGE I OF 14 

at__ __am/pm 

_): $ ______ _ 
63 

Landlord and Agent will not be liable to Tenant or any guest, invitee, or occupant fOr injury, damage or loss to 

person or property cm1sed by crimina! conduct of other persons, including theft, burglary, assault, vandalism, or 

other crimes. Landlord and Agent will not furnish security personnel, security lighting, security gates or fences, or 

other fOrms of security. If the employees of Landlord or Agent are requested to render services not contemplated in 

this Lease, Tenant will hold Landlord and Age11t harmless from any and ali liability for same. lf information on 

Tenant's rental history is requested by others for law enforcement or business purposes, Landlord may provide same 

in accordance with the "Tenant Consent Form.'} Lat1dlord and Agent. in addition, shall not be liable under any 

circumstances of Tenanes failure to provide Landlord or Agent with prompt notice of any such conditions existing 

in the Dwelling Unit or Premises. Tenant hereby releases Landlord and Agent from any and all liability and agrees 

to indemnify Landlord and Agent for such iosses, with respect to Tenant, and all authorized occupants and guests or 

invitees of Tenant 

14. PETS. No pets of any kind wlli be allowed to be kept or maintained on the Dwelling Unit\Nithout Landlord's prior 

written consent and the execution of an addendum entitled HPct Addendum." Landlord reserves the right, however, 

to prohibit pets, except for qualified service animals, completely from the Dwelling Unit and .Premises. 

15. REPRESENTATIONS IN APPLICATION FOR UcASE. This Lease has been entered into in reliance on the 

information given by Tenant on Tenant1S "Application for Lease'\ which by this reference is made a pa1i of this 

Lease. Tenant shall advise Landlord or Agent in writing of any changes to the information contained in the 

application. If any of Tenant's material representations are found to be misleading, incorrect, untrue or omitted, 

Landlord may immediately terminate this Lease and require Tenant to vacate the Dwelling Unit. 

16. FINANCIAL RESPONSlBlLJTY. If Landlord is required to make any payment tu Tenant hereunder~ Tenant 

(lgrees that such financial obligation wil1 be satisfied solely from Landlord's estate and interest in the D"velling Unit 

and the real estate upon which the Dwelling Unit are situated and the improvements of which it is part, or the 

proceeds thereof, so that Landlord wlll incur no individual or other liability for such financial obligations, 

17. NOTICE. All notices shall be in accordance with Section 55~218.6 of the VRLTA1 whiGh provides fOr written 

tJotice to be given by regular mftll or by hand delivery, with the party giving notice retaining a certificate of mailing, 

or delive1y of the notice, as tlte case ml:ly be. Notice to the Landlord will be given to the Agent's Office or to such 

other place as may be specified by Landlord or Agent. Notice lo Tenant will be given to the address of the Dwelling 

Unit Landlord reserves the right fix I...andlol'd and Tenant to send notices in electronic form; however, if Tenant so 

reque$ts, Tenant may elect to semi and receive notices in paper fOrm. If electronic delivery is used, the sender shall 

rdain sufficient proof oft he elect1·onic delivery, which may he an electronic receipt of delivery, a confirmation that 

the notice was sent by facsimile, or a certificate of service prepared by the sender confirming the e!ec.tronic delivery. 

7 18. MILITARY. 

a. Any Tenant who is a member of the armed forces of the United States or a member of the Virginia National 

Guard serving on fulltime duty or a Civil Ser·vice technicians with a National Guard unit may, through the 

procedure detailed in subseclion (b) of this section, terminate this Lease if the Tenant (i) has received 

pcnnanent change of station orders to depart thi1iy~five miles or more (radius) from the location of the 

Premises; (ii) has received temporary duty orders in excess of three months' duration to dcpati 

miles (radius) from the location of the Premises; (iii) is discharged or released from active duty 

armed forces of the United States or from fullRtime duty or technician status with the V irginla National 

Guard; or (iv) is ordered to report to governmenlRsupplied qumters resulting in the forfeiture of basic 

allowance for qumters. 

b. If Tenant qualifies to terminate this Lease pursuant to subsection (a) ot' this section~ Tenant may do so by 

serving on Landlord a written notice of termination at least thirty (30) days prior to the next Rent due date. 

The termination date shall be no more thau sixty (60) days prior to the date of departure necessary to 

comply with the official orders. Prior to the termination date, Tenant shall furnish Landlord with a copy of 

the official notification of the orders or a signed letter, confirming the orders, from Tenant's commanding 

oftlcer. 

c. Nothing in this section shaH limit the amount of the Security Deposit that Landlord may retain as provided 

in section 3 of this Lease. 

Landlord reserves the rlght to requ!re 1 as a condition of this Lease, that Tenant execute a waiver of all or 

VARFORM 200 REV. 8/ll PAGE901'14 
64 

.;;> e. 

pa1t of the rights the Tenant may otherwise have under the Servicemembers Civil Relief Act. 

If no waiver of rights under the Service members Civil Relief Act is required by Landlord, in the event of a 

nonpayment of rent by Tenant, Landlord reserves the right to request an allotment from the pay of the 

servicemember tenant as permitted in the Setvicemembers Civil Relief Act. 

19. CANCELLATION; RENEWAL. 

a. Either party may terminate this Lea>e in accordance with section 1 G) of this Lease. If notice of 

termination is not timely given, the Term of this Lease shall be extended upon the same terms and 

conditions as set fot1h in this Lease, for the term specified in section l(i) until either pm1y gives timely 

notice to terminate fn accordance herewith~ unless this Lease is terminated in accordance with any other 

applicable provision of this Lease or Virginia law; provided, however, that if the duration of the t•cncwal 

term as set forth herein is less than the number of days specified in section 1 0) to terminate this Lease, then 

the notice period for teiTninating any renewal term of this Lease shall be the same period as the renewal 

term. 

If Landlord intends to chnnge the terms ot conditions of this T.e<1se~ including increasing the Rent, for 

renewal tcnn thereafter, Landlord shaH give Tenant written notice in accordance with section 1 G) 

Lease, advising Tenant of the new terms and conditions of a renewal lease. Should Tenant fail to provide 

Landlord timely written notice of TenatH1

s intentions. to terminate the Lease in accordance with the 

preceding subsection (a), Tenant shall be deemed to have agreed to the tem1s and conditions set forth in 

Landlord's nolice) and shall be bound fur such, until such Lime as the Lease is tenninatcd in accordance 

with this. section. 

b. Upon termination of this Lease~ Tenant shall smTender the DweHing Unit in good condition, with the 

exception of reasonable wear and tear and must pay for all damages or assessments for damages made by 

Landlord against Tenant in accordance with the Damage Addendum, 'other provisions of this Lease, o.r as 

Land!ord reasonably determines. 

20. ACTION BY LANDLORD UPON DEFAULT flY TENANT. Under Virginia law and this Lease, Landlord may 

terminate this tenancy during the term of the Lease upon one of the tblJowing: 

a. Material Nill!_g}!}mliance by Tenant Failing to Pay Rent \Vhen Due. If Tenant fails to pay Rent when due 

or pays Rent with a bad check, and such failure continues after Landlord has served a five-day notice of 

material noncompliance for failure to pay Rent} Tenant shall be in default} and Landlord may terminate this 

Lease and Tenant's right to possession in accordance with law and seek such damages as arc appropriate 

under this Lease and the VIli.TA. 

h. Mitterial Noncomnliance __ byJ'en~.ttl! \Vhich Can Be Remedied \Vithin 21 Days. lf Tcmmt fails to comply 

materially with any other provision of this T,ease, Landlord may serve on Tenant a material noncompliance 

notice stating that if Tenant does not remedy the specified noncompliancc{s) within twenty-one {21) days 

after receipt of sucb notice, then if such noncompliance is remediable} this Lease wil1 terminate thirty (30) 

days after Landlord has served such notice. 

c. Repeat Violations. If Tenant has been served with a prior written notice that required Tenant to remedy a 

breach, and Tenant remedied such breach, if Tenant intentionally has committed a subsequent breach of a 

like nature as the prior breach, Landlord may serve on Tenant a thirty (30) day termination notice for such 

repeat violAtion. Such notice must make reference to the prior breach of a like natur-e and state that the 

Lease will terminate in thitty (30) days for the reasons stated therein without allowing Tenant an 

opportunity to remedy such subsequent breach. 

d. Nonremcdiable ViolatiQll~Cri!nin&:Lj\ct~. If Tenant commits a material noncompliance that is not 

remediable, Landlord may serve on Tenant a termination notice stating that this Lease will terminate in 

thirty (30) days for the reasons stated therein without allowing Tenant an opportunity to rernedy ::~uch 

breach. If a breach of Tenant obligations under Virginia law or this Lease involves or constitutes a criminal 

or willful act that is not remediable and that poses a threat to health or safety, Landlord may tenninatc this 

Lease immediately by giving of written notice thereof. Tenant and any other persons in or about the 

Dwelling Unit with consent of Tenant, including but not limited to members of the family, guests, invitees 

or authorized occupant~~ shaH not engnge in criminal activities or activities intended to facilitate crimina{ 

activities including any illegal drug-related activity on the Dwelling Unit and any area of the PTcrnises, 

including common areas and streets, involving a controlled substance (as defined in Section 54.1-3401 of 

V AR F'O.RM 200 .REV. 8/11 PAGE IOOF 14 
65 

AGREEMENT REGARDING THE SERVICMEMBERS CIVIL RELIEF ACT 

(Each Tenant must sign a separate Agreement) 

1. Agreemep.j;_: This Agreement relates to the rental agreement dated 09/17/2013 

-·------·~__b_e.t;w_e_<m_Tim];lt)rS Norfolk. LLC DBA Timbers Townhomes (tl.le Lessor)_a_!l<:l_.ltiiiP.!L 

Feemster (Tenant/Dependant) for the leased premises described 7010 #4 N01'thgate 

Drive Norfolk, VA 23513 (the Lease) . 

.:;> 2. Reason fur Agreement: For purposes of the Servicemembers Civil Relief Act ("SORA"), it 

is important for the landlord to be advised of the military status of the Tenant. Further, 

the SCRA permits the waiver of certain rights under the SORA, and this Agreement 

contains such a waiver. 

3. Military Status: The tenant represents as follows: 

The Tenant (check omi) XIS or IS NOT an active member in the military service of 

the United States. 

If the Tenant is in the military service of the United States, the names, address and 

teleph!)ne .numqer .o( the Tenant's CO!p.J;)lllr:ld is: 

Tenant agrees to notify the landlord in writing of changes to the Tenant's 

or the Tenant's command's mailing address or phone number or changes to the Tenant's 

military status . 

• .:_;, 4, Waiver: In accordance with the provisions of 50 App. U.S.C.A. 517, if the Tenant is, at 

the time of signing this Agreement, in the military service of the United States, the 

tenant/Dependant may waive certain rights under the Servicemember Civil Relief Act 

relating to the Lease, including the Landlord's need to appoint a Guardian Ad Litem to 

represent our interest before obtaining judgment for rent, interest, utilities, late fees, 

attorney's fees and other damages as well as eviction from the leased premises. The 

service member expressly acknowle.dges by executing this agreement tbat he/she waives 

such rights under the Servicemembers Civil Relief Act and that Landlord will not be 

required to appoint a Guardian At Litem (should TenantiDependant fail to appear in 

court) in order to obtain judgment for the items listed above and possession of the leased 

premises. 

5, Oth~_:~.:ig)lte ll-.!!P.h!J.11_@.d,; This Agreement is separate from the Lease and does not, except 

as expressly state herein, modify any of the contractual rights and duties of the Landlord 

or the 'fenant set forth in the lease. 

(SEAL)~ /r_...},_.,f?'----

Date 
66 

(/" /t ;r;j::L& ( 2- ~ WAIVER ADDENDUM D ' REGARDING TilE 

SERVICEM~I\ffiERS CIVJL RELIEF ACT 

(Each Resident Must Sign a Sepante Agreement) 

THIS WAIVER ADDENDUM REGARDING THE SERVICEMEMBERS CIVIL RELIEF ACT (this "Addendum") to the Apartment LeaBe 

da1ed • 2012 (the 11Le11se"), by and between Landlord and Resident is incorpo:ated_and m~d~ an Integral part of the Lease.. .~ny 

term with its initialldter capitallz.ed ~~ ... -~all have lhe meanmg g:ven tot\ !U the ].ease. ~- _ 

A B. · Re.!dent(s) I.andlord: c:~~====~~=~=::=:::~==============-_.~:::_ - __ c. CommW!ity: Diamond Springs Apartments & Townhomes 

RESIDENT HAS READ AND SHALL MllDE BY ALL OF TilE RULES, REGULATIONS AND AGREEMENTS IN THIS 

ADDENDUM AND THE LEASE. 

RESIDENT: LANDLORDIMANAGEMENTt 

Signature: ___________ _ 

By: ___ ~-·-------

Date~· 8/16il2 Name. 

Title: A!l.~!st:mt Property Man;lgcr 

Date:'/1&/12 

RESIDEN!' AND LANDLORD AGREE AS FOLLOWS: 

-::> t. Re:u:on for Agreement Forptll1HJSes of the Servicemembers Civil Relief Ad., 50 US. C. opp. § 50t et seq. (the "Act"). the Landlord hereby 

requires Resident to tlisclose wh~her the Resident is a membet cf any branch of the United States Military, i11Chtding, but not limited to~ the Air 

Force, Auny, Coa~;t Guard, Marine Corps, Navy, the Virginia National Guard, or the National Guard ot'any other State or United States Territory, 

either active duty or r.ost:rves. Further, pursuant to the provisions of the Act, the Landlord requires all Residents to waive any and al! rights under 

the Act. The Wndlord is .enti!led to rely upon Resident's assertions for v.ny and fill purposes. 

2. MiUt'lli"Y StatUS'. The Resident states .as follows: 

I affirm that I AM __ AJ:\<1 NOT __ a member of the United States Military, either active duty or reserves.. 

!fthe Resident is in the military service of the Unlted Slates, the oame..~,nddress, and telephone number oftbe Resident's command is: 

Branch: 

Commanding Qfficer.' --· 

Address: 

Phone Number: 

Military Email: 

3~ Notfce Requirement. The Resident agrees to immediately notify the Landlord in writing of any chunge to h!s or her command ot military 

stat\1s during the term of the Lease. This obligation includes, but ls not limited W, the requirement that ooy Resident not currently in the service 

of the United Stirtes military, must immediatelynotifythcLandlord if he or she hereafter becomes a member of the military . 

..;> 4* Waiver. lrt :tec.ordance with the nrovisipns of 50 U.S. C. Apo '§ 517. irthe Re!iidtt!t is • .ai tile time of signing this Agreement. in the 

mmtaO' s.ervke of tbe IJnited ~tates or 2 depende-nt of ;l sen-ire member in tbe military servke of the Uilited StMes. the Re~ident wivi'S 

aU right! under tl:te Servicf'members Civil Relief Act rclatln'g to the LeMe, the termination of the LeAse. a¥!d/or eyktiqn from the lepsed 

IJremises. 

S.. Otbc:r rights undtangcd. This agreement doe:umt, except as expressly stutcd herein, modify any of the contractual rights and duties IJf the 

Landlord or the Resident set forth in the Lease. To the extent that nny laws impose any requirerneni on Landlord or Resident !hat is contrary to 

ony provision of this Waiver Agreement this Waiver Agreement shall be deemed to be antumaticlilly amended 1m as to comply. with Stlch law. 

The refonnation of any provision of this Waiver Agreem·ent.shal! not invalidate t11e Leuse. If an invalld provision CllMOt be reformed, it st~all be 

< severed and the remaining portions of H·.Js Waiver Agreement and the Lease shan be enforced. 
67 

MILITARY WAIVER 

DATE: 

TIHS MlLlT AR Y. W AJVER, by and between Archer's Green II, LLC , doing business as 

Archer's Green Apartments, hereinafter called Landlord; and hereinafter called Resident(s). 

The Lease Agreement dated 20tlby and between Landlord and Reside:nt(s) (the 

••tease''), as written, Is all inc!U!jive and binding on Landlord and Resident(s), with the exception 

of the following amendments and/or revisions: 

..:..? I. I agree to waive any and all rights which mRY be afforded to me or to which I may be 

entitled under the Serv:icemembers Civil Reller Act, (the "SCRA"), includhlg the right to 

a sta.y of a judgment under Section 204 of the SCRA, and my eviction rights under 

Section 301 of the SCRA. Notwithstanding the preceding, I shall retain the right to 

terminate the Lease prior to the end of its tel'lll; in accordance with the ·provisions of 

Section 305 ofthr: SCRA. 

:2. This waiver only applie$ to my rights and obligations relating to the Lease, and i!Qes not 

affect any otlter rights to which I may be entitled under the SCRA. 

Please check one of the following boxes, as applicabl~:: 

D I am CUI.'fently either a "Servicemember'' or "Dependent," as those tetn1s are defin~ in 

Section 101 of the SCRA, and/or Section lOIS of the SCRA regarding members of the 

military reserves applies to me. 

0 t agree that should l become e\lher a "Servicemembc;" or "Dependent" during the term 

e~f the Lease, and/or I become a reserve member ordered to report for military sel.'Vice 

pursuant to Section 106 ofthe SCRA, that this Military Waiver shall be binding. 

IN V.'ITNESS WHEREOF, Landlord and Resident(s) have ex~utecl this MIL~tm:y Waiver on the da'les reflected below. 

WITNESS our signatures: 

Dato~=------------- Landlord 

Date: ______ _ 

Resident 

Date:._~---~-

Resident rev. 12107 
68 

MILITARY TRANSFER ADDENDUM 

1. Addendum. This Addendum to the Lease dated 

0911712013 between 

~.Agent fc..-, lt!IIV<=Hii:l .~ ............ , -~ 

·u-l!mbers Townhomes kffOWft as· C€KS0Tti1"it1-.Rf.!!lla:--

Feemster for the dwelling unit -· _m 

~ · · •• ~" ··· :I.!n.!A, shal. "'~"'""'"''~"'"''"'"""'in 

_ ··---- .. -·. -· ____ aforesaid Lease. 

For the purposes of tt11s addendum, "you" means a 

service: member as defined by the "U.S. Service 

members Civil Relief Acl" {SCRA), 

... ~ 2. Reason for Addendum. Congress has enacted 

into law the "U.S. Service members ClVi! Reflef Act" 

(SCRA). l'h!s law, among other things, modifies the 

rights of military personnel to terminate a lease tn 

certain cases and provides that ml!ttary personnel 

may waive their rights under the SCRA in certain 

circumstrmces. There are dtfferent Interpretations 

of how the SCRA affects de~ndents' and 

ctcupants' rights to terminate a lease in ihe event of 

a deployment. lhfs addendum clarifies your rights 

an·d our obligations in the event of a deployment. 

This addendum provides for a limited waiver of the 

terms of lhe SCRA However, we agree to grant 

lndlvidu.:Jis covered by the SCRA and their spous~s 

aU the rights described in this addendum. 

·-·-- 3:· ····MIIitary·personnel"right-to·te-rminate. r::xcept··as- ~ 

proVIded in paragraphs 4 or 10 below, you or your 

spouse may terminate the Lease if you enlist or are 

drafted or commissioned in lhe U.S. Armed Forces 

dllring the original or renewal Lease term. You or 

your spouse also may terminate the Lease if: 

a. you are {1) a member ot1he U.S. Armed 

Forces or reserves on active duty or {2} 

a member of the National Guard called 

to active duty for more than 30 days ln 

response to a national emergency 

-declared by \tie President; and 

b. You {1) receive orders for permanent 

change of station, (2} rece:ve orders to 

deploy with a military unit or as an 

individual in support of a military 

operation for 90 days or more, or (3) are 

relieved or released from actlve duty. 

If you or your spouso terminates t:nder this 

addendum, we must be fumished wah a copy of 

your mf!itery orders, such as permanent change-of. 

station orders. call-up -orders, or deployment orders 

or letter. Military permisslon for base houslng does 

nol constitute permanent change-of~statlon orders. 

4. Exception for termination upon deployment 

orders. lf you or your spouse are terminating the 

Lease due to deployment orders, you or your 

spouse may terminate the Lease only on the 

condition that during the rema!ndnr of the orfgtna! or 

renewal Lease term m:ither you nor your spouse wm accept an assignment for or move into base 

housing, or move into other 11ousing located lflilhin 

45 miles of the dwelling unit described above. 

If you or your spouse terminate the Lease and 

viokate this paragraph, the Lease shall be deemed 

to have not been legally terminated and you and 

your spouse shall be ln deFault under the Lease. !n 

that event, v.:e Will have all legal remedies, including 

those descnbed In the Lease, such as charging a 

termination fee as described In the leass 

Termination Addendum and liquld~ted damages. 

5. Effect of hous!ng allowance continuation. The 

fact 1hat the service member continues to receive a 

h.ouslng allowance for the se:v1ce member'a spouse 

--- -~and/or- dependen1s-aftor-daployment.does-not.affecL. 

the right of the service member or the service 

member's spouse to terminate unless other\ovlse 

stated in paragraph 10 ofthls addendum. 

6. Other co·resldents. A co-resident who is not a 

spouse of a servk:e member may not terminate 

under this addendum. You and your spouse's right 

to term\nate \he Lease under this addendum only 

affect the Lease as it applies to you and your 

spouse-other resident's rfghts and ob!'lgations under 

the Lease remain unchanged. 

7. Termination date. !f you or your spouse terminate 

under this addend1Jm, aU tights and obligations of 

you and your spouse unrler the Lease: W111 be 

terminated 3U days; after the date on which the next 

rental payment is due, with the exception of 

obligations arising before the termination date and 

lawful security deposit deductions" 

B. Representations. Unless you state othefVIisa In 

paragraph 10 of this addendum1 you ~epresent 

when signfng this addendum that {1} you have not 

already received deployment or change-of~station 

><·, -~ .. -_Q!I!Qm;JZ)_y_g.\.!__~villl1C?!J?e retiring from t~~ military 

during the Lease term; and {3) -lhe ternfOf your --.. 

enlistment or obligatlon will not end before the 

Lease term ends. Uquldated damages for making a 

false representation of the above will be the amount 

By: 

of unpaid rent for the remainder of the Lease term 

when and if you move out, less rent from others 

received in mltlgation under the tem1s of the lease. 

You must immediately notify us if you are called to 

active duty or receive deploymelit or permanent 

change of siation orders. 

Other rights unchanged. 1\U oiher conlractua! 

rights and duties of both you and us under the 

Leasa remain unchanged. 

10. Addition provisions. The following provisions will 

supercede an}1 confllctlng provisions of the Lease 

and this addendum. 

N 

Resident 

Resident 

·~ 

Date 

Date 

llGLil4 

Rev. !1/06 
69 

Oct/12/2012 11:05:13 AM 

1. AgroCJment. This Agreement relates to the lease agreement datad 04/01/2012, ("the 

Lease"), between the Landlord and Resident/Dependent Identified below for the Leased 

Premises described as follows: 

-> 2, Reason for Agreement, For purposes of the Ssrvicemembers Civil Relief Act 

("SORA"), It Is Important for the Landlord to be advised ofthe mll!tary status of the Resident. 

Further, the SCRA permits the waiver of certain rights under the 11SCRA", and this Agreement 

conialns such a waiver. 

3. Military Status. The Resident represents as follows: 

The Resident (check one) __ IS or __ IS NOT an ac;tlve member In the mflltsry service of 

the United states. 

lfthe Resident is ln the military service of the United States, the names, address, end telephone 

number of thE! Resident'~; command is: 

The Resident agrees to Immediately notify the Landlord In writing of changes to the Resident's 

or the Resident's command's mailing address or phone nt.tmber or changes to the Residant's 

military status. 

-::> 4. Waiver. In accordancewllh the provisions of50App. u.e.c.A. § 517, If the 

Resident Ia, at the tlme of slgnlng this Agreement, In the mll!iary service of the United States or 

a Dependent of a servicemember In the military service of the United States, the 

Resident/Dependent maywa!ve certain rights under the Servir:;emembers Clvll Relief Act 

relating to the Lease, Including the Landlord's need to appplnt a Guardian Ad Litem to represent 

our Interests before obtelnlns judgement for rent, Interest, !Jt1lrties, leta fees, attorney's fees and 

other damages as well as eviction from the leased premises. The service member expressly 

acknowledges by executing this agreement that he/she w~lves such rlghl$ t.Jnder the 

Servicemembars Civil Relief Act and that !he Landlord ll{llf not ba required to appoint a 

Guardian Ad Litem (should Resident/Dependent fall to appear In court) In order to obtain 

jUdgment for tha rtems listed above and possassJQn of !he !eased premises. 

5. Other rights unchanged. Thls Agreement !s separate from the Lease and 

does not, except as expres~y stated herein, modify any of the contractual rights and duti~Ss of 

the Landlord or the Resident set forth in the Lease. 

l'llnt•a Nome oll\••idan! 

_,. 
70 

STATEMENT OF 

.JOHN S. ODOM, .JR., ESQ . 

.JONES & ODOM, L.L.P. 

SHREVEPORT, LOUISIANA 

BEFORE THE 

SUBCOMMITTEE ON OVERSIGHT, FEDERAL RIGHTS 

AND AGENCY ACTIONS 

COMMITTEE ON THE .JUDICIARY 

UNITED STATES SENATE 

"ACCESS TO .JUSTICE FOR THOSE WHO SERVE" 

MARCH 27, 2014 

John S. Odorn, Jr., Esq. 

Colonel, USAF .JAGC (ret.) 

.Jones & Odorn, L.L.P. 

2124 Fairfield Avenue 

Shreveport, Louisiana 71104 

318-221-1600 

john.odorn@jodplaw.corn 
71 

Chairman Blumenthal. Ranking Member Hatch and members of the Subcommittee. My 

name is John S. Odom. Jr.. and I am an attorney ti·om Shreveport, Louisiana. I am also a retired 

Air rorce judge advocate and served over 31 years of combined active and Reserve duty. In 

20 I 0 I was recalled to active duty from retirement to author a repoti to Congress for the 

Department of Defense concerning certain matters related to proposed amendments to the 

Servicemembers Civil Relief Act. The vast majority of my civilian law practice involves 

representing serviccmembers in claims they have against banks and other institutions and 

individuals who have violated their rights under the SCRA. In 2011. I represented a Michigan 

National Guard soldier in a suit against his mortgage servicing company. in what was the first 

federal jury trial involving claims under the SCRA in the history oft he Act. I frequently teach at 

each oft he service judge advocate schools and speak to judges' associations, attorneys general 

training seminars and both industry and consumer groups around the country on matters related 

to the SCRA. Prom 2006 to 2009. I served on the American Bar Association Standing 

Committee on Legal Assistance to Military Personnel and am the author of A Judy,e 's Benchbook 

.fur the Servicemembers Civil Re/iefAct, published by the ABA in 2011. 

I am grateful for the invitation to appear today and offer comments and observations on 

the degree to which our servicemembers do or do not have access to justice with regard to SCRA 

enforcement and other servicemcmber protections. This Committee's oversight of the federal 

judiciary is an ideal forum in which to analyze whether or not the Act is working as Congress 

intended it to for the protection of servicemembers. 

The subcommittee has witnesses planned for today to cover the entire spectrum of SCRA 

issues including policy and education of the troops to the efforts of active duty legal assistance 

attorneys to persuade creditors and their counsel to abide by the SCRA. As private counsel for 
72 

servicemembers. I usually don't arrive on the scene until policy and persuasion have failed. 

come along when ifs time to sue someone for trampling on a servicemember's federallyprotected rights. In that regard, I seek to judicially enforce somcone's rights under the Act every 

day of the week in federal courts across the nation. 

Over the past few years as the number of litigated SCRA cases have increased, I have 

come to realize that the Act means only what the judge in front of whom I am standing at that 

moment thinks it means. Litigation under the Act is a somewhat uncommon event for most 

federal and some state judges and the number ofjudges and opposing counsel who have served 

in the military- and therefore appreciate how devastating some of these violations can be is 

shrinking with every passing year. With the advent of PACER and online legal search engines, 

I'm seeing district court rulings on Rule 12(b)(6) motions cited as authoritative law by opposing 

counsel. There was recently a decision dismissing a SCRA case in a federal court in California 

in which the servicemember was a prose litigant. The court's decision was absolutely wrong, 

but no appeal was taken. Now I'm seeing that case cited against my clients in virtually every 

new case. All of that is to say: the battle goes on to protect servicemembcrs' federally-protected 

rights in coutis across the nation. 

There are several recurring issues lor the troops the impact of which could be lessened or 

completely eliminated by a few technical amendments to the SCRA that would not cost the 

taxpayers a dime. A number of bills proposing SCRA amendments have been introduced on the 

Senate side during the 113'11 Congress, the most comprehensive of which was S. 1579. After the 

Veterans Affairs Committee held hearings on that bill on October 30, 2013, portions of it were 

inserted into Senator Sanders' larger S. 1982 and there they died when the bill was defeated on 

2 
73 

procedural votes on February 27. 2014. I appreciated that your Chairman. among 28 other 

Senators from both sides of the aisle, was a co-sponsor of that proposed legislation. 

Speaking from personal experience, in 20 I 0 I had urged every Congressional staffer who 

would give me live minutes that the Act should be amended to confirm that a private right of 

action for damages and attorneys fees existed when SCRA rights were violated. That 

amendment. which became Section 802 of the Act. was passed on the last legislative day of that 

Congress. so I know that the score can change rapidly. I have learned that there are two rules in 

the legislative process: Rule No. I -if Congress does not want a bill to pass. no pO\ver on earth 

can push it into law. Rule No.2 if Congress wants a bill to pass. no power on earth can stop it. 

I have hope for some much-needed SCRA technical amendments yet to come from this session. 

Today I'd like to identify several issues that cause ll·equent and unnecessary problems for 

our servicemembers- all of which could be vastly decreased or eliminated entirely with the 

passage of the technical amendments to the SCRA lam suggesting. In the interest of time. I 

have attached my complete '·wish list" of SCRA amendments. but want to highlight what I 

consider to be the changes in the Act that are most critically needed. 

Default Judgments 

First, the protection against default judgments provided in Section201 needs to be 

improved to mandate that a litigant seeking a default judgment must make a due and diligent 

effort- an actual inquiry- to asce1iain if the defendant is or is not on active duty with the 

military. At a bare minimum. the plaintiff should be required to access the Dclense Manpower 

Data Center SCRA database (a process that takes no more than 15 seconds) before stating in an 

affidavit that the ddendant is not on active military duty. Fmihcr. if the plaintiff has in its 
74 

possession information on how to contact a defendant who is on active duty, the plaintiff should 

be required to furnish that information to the attorney appointed to represent the scrvicemember. 

As hard as this may be to believe, in a recent case I handled for a Navy scrvicemember 

and his wife in Florida, counsel for one of the largest national mortgage servicing companies said 

that unless I could show him a case holding that under Section 20 I there was an obligation for 

his client to pass that contact information on to the attorney appointed to represent the absentee 

sailor. he felt there was no requirement that his client was obligated to have done so. At the end 

of the mediation the defendant wrote a large check to settle the matter and avoid a judicial 

determination of who was correct. 

Definitions of'·permancnt change of station" and "military orders" 

At least three or four times a month. I receive calls or cmails from military legal 

assistance attorneys \\ho are jousting with apartment complex managers over the meaning of 

"orders for a permanent change of station" as found in Section 305 of the Act. The term 

"permanent change of station" is not defined in the Act, and the definition of"military orders" is 

found at the end of Section 305- so that it only applies to Section 305 instead of the entire 

SCRA. The Joint Federal Travel Regulations ("JFTR") define "permanent change of station" to 

include separation and retirement moves, which apparently no apartment complex manager in 

the world is willing to accept. So. when a soldier at Fort Hood. Texas separates or retires from 

the Army and wants to move to Shreveport to accept a job at the new steel factory there. the 

manager of the XYZ Apartments in Killeen, Texas tries to hold him up for the remainder of his 

lease term saying that a move when the soldier separates or retires from active duty is not a 

permanent change of station. The .IFTR says it is. The solution is incredibly simple- define 

.. permanent change of station'' in Section I 0 I (the definitions section) as having the same 
75 

definition as that found in the JFTR. Additionally. Congress should move the definition of 

'·military orders·· trom Section 305 (where it was added in a hasty 2004 amendment seeking to 

overcome new and ingenious arguments offered by a number of Texas apartment complex 

managers) to Section I 0 I so that it would apply to the entire Act and not just the section 

pertaining to termination of leases. These amendments are purely technical in nature. require 

zero outlay of federal funds and would be of tremendous benefit to our servicemembers. 

Orders to move into Government housing 

Another recurring problem arises when a servicemcmber who has rented a house or an 

apartment receives orders to move into Government quarters on base or on post. Apartment 

managers some of whom have actually read Sect ion 305 of the SCRA proudly point out that 

such a move is not a permanent change of station or covered specifically by Section 305 of the 

Act, and therefore routinely refuse to allow the servicememher to break the lease to move on 

base. Another simple fix provide that a move into Government quarters (including privatized 

Government quarters) constitutes grounds for termination of a lease. Both of these suggested 

technical changes were included inS. 1593 which was reported favorably by the Veterans 

Affairs Committee on November 19. 2013. 

Clarilication of the existence of private causes of action 

The adoption of new Section 802 (50 U.S.C. App. §597a) in 2010 concerning private 

causes of action under the SCRA brought a new wave of motions by defendants claiming that 

prior to the enactment of that amendment. there really was no private right of action for damages. 

Fortunately. since a number of cases had previously held that there was an inherent right of 

action to sue violators of the SCRA for damages. I've been successful in overcoming the latest 

arguments thus far. However, it would be extremely helpful to servicemembers if Congress 
76 

would clarify that such a private right of action has existed since the Soldiers' and Sailors' Civil 

Relief Act of 1940 was enacted. Such a provision appears in S. 1579 and was in the nowdefeated S. 1982 (Senator Sanders' bill). 

Post-event atlirmation of forced arbitration agreements 

The prevalence of forced arbitration agreements embedded in virtually every mortgage 

instrument and credit card agreement has caused many of our servicemembers who have disputes 

vvith creditors to be denied access to a federal or state court for resolution of their complaint. 

Instead. if a dispute arises creditors point to a mandatory arbitration clause that may have been 

signed long before the individual became protected by the SCRA. The creditor then requires the 

American Arbitration Association rules to be followed- sometimes over a dispute involving 

only a few hundred dollars in overcharged interest. When the servicemember discovers that the 

filing fee and the ··proceed fee" of the arbitration proceeding- not to speak of the charges that 

arbitrators require to be paid in advance of the arbitration- are more than the entire amount in 

dispute, the matter is dropped because the servicemember frequently cannot afford the process. 

A reasonable compromise would be to amend the SCRA to provide that attcr a dispute 

under the SCRA arose, the parties would be free to then mutually agree to arbitration, but 

arbitration could not be mandated on the basis of some document signed prior to the dispute. In 

other words. infi.lturo waivers of rights under the SCRA would not be allowed. I have long 

interpreted Section I 07 to mean that you cannot waive a right under the SCRA until you have 

that right (as a result of the occurrence of circumstances giving rise to the right) but no case has 

ever decided the issue and at this point. this is my interpretation of the Act. !psi dixit. as one of 

my law professors used to say: .. it is because I say it is." A legislative fix for the problem 

outlined above was proposed in both S. 1579 and inS. 1999. 

6 
77 

Re-financing of pre-service mortgages and student loans 

Servicemembers should be able to re-finance mortgages and student loans they incurred 

prior to active duty at lower interest rates without such transactions nullifying their rights to the 

protections of the SCRA. Such a proposal concerning student loans (but not home mortgages) is 

found in S. 1399. Without an amendment to the SCRA. if a servicemember re-finances a preservice debt either a student loan or a home mortgage during a period of active duty. the 

servicemember will lose the protections of the SCRA. That protection against home foreclosures 

except in conformity with the Act is perhaps the single most vital protection in the entire SCRA. 

I was pleased to be able to work with Senator Rockefeller's staff on many of the 

provisions that appear inS. 1579. The proposed amendments in the list attached to my testimony 

are based on real world problems I have encountered and attempted to solve on behalf of 

servicemembers and their families. Some. but not all of these proposals have been covered in 

my testimony today. lam happy to otTer any Member or their staff the benefit of 40 years of 

experience with the SCRA and nearly three decades of litigation experience with the Act in the 

continuing efforts of Congress to keep the Act up to date. 

Revision of Section 602 (50 U.S.C. App. §:?..[0 

Section 602 provides that a certificate ''signed by the Secretary of the service concerned'' 

shall be accepted as prima .facie proof of military status. Theoretically. to establish that someone 

was or was not on active duty on a particular date, you would then have to obtain certillcates 

from the Secretaries of the Army, Navy. Marine Corps and Air Force plus the Secretary of the 

Department of Homeland Security for the Coast Guard. To my knowledge and I've askedthere is no service Secretary with a process for the issuance of such ce1iificates. That role has 

been taken over by the Internet-based services provided by the Defense Manpower Data Center 

7 
78 

and its SCRA database. All of the services' records have been consolidated in the DMDC. 

which is among the most efficiently run and helpful of all Government agencies. 

The Act simply needs to he updated to provide that certificates of service may also he 

issued by the DMDC through its SCRA database. This is merely an example of the legislation 

being overtaken by the technology. As with the other amendments I have suggested in today's 

testimony. the legislative fix is technical in nature and would not require the expenditure of any 

federal funds except to print the change. 

SCRA Enforcement by State Attorncvs General 

Last week I went to New York City to teach SCRA to the National Attorneys General 

Training and Research Institute. The session sought to encourage increased state efforts at 

enforcement of the various state "mini-SCRAs··. Those state AGs should also be allowed to 

enforce the SCRA when their state statutes do not provide sufficient protections for 

servicemembers. The more watchdogs there are keeping the wolves at bay, the better the tlock 

will be protected. l know that one of the aspects of protecting the rights ofservicemembers 

being considered by this subcommittee is increasing the cooperation between the state attorneys 

general and the Department of Justice. Violations of the Act happen on both a local and a 

national basis. The closer to the scene of the action we can find efforts to enforce the Act, the 

better. l strongly encourage such mutual enforcement efforts and, to the extent an amendment of 

the Act is needed. urge the Members of this subcommittee to consider proposing such legislation. 

USERRA Damages 

On several occasions over the past decade I have represented clients who had USERRA 

claims. In very brief summary, let me say that the biggest problem with USERRA for a private 

practitioner is the fact that the statute lacks an adequate provision for imposing damages on 

8 
79 

violators. Irs as simple as that. There is a requirement that a USERRA plaintiff seek to mitigate 

damages. meaning your client has to be out looking for work while the case progresses. If they 

lind employment elsewhere. then they have just cut the measure of their damages by the amount 

of their new salary. This result is because, as a general rule. damages under USERRA only 

involve payment of past-due wages unless intentional violation can be proven. Even if 

intentional violation can be proven. the damages only increase to twice the past-due wages. net 

of whatever the plaintiff has managed to earn elsewhere. Without compensatory and punitive 

damages. USERRA is the proverbial toothless tiger from the standpoint of attracting private 

attorneys willing to take on these types of cases. In many cases. the employer may ultimately 

agree to rehire the plaintiff but only if the plaintiff drops the claim for past-due wages and 

attorney's fees. The client. desperate to get his old job back and willing to waive the past-due 

wages, wants to settle. That means the attorney who took on the case takes it in the neck because 

there arc no funds from which a fee can be paid. making counsel most reluctant to take future 

USERRA cases. 

I thank the Members for their attention to these critically important protections for our 

servicemembcrs and their families and would be pleased to respond to any questions you or your 

staff's might have now or in the future. 

Respectfully submitted. 

John S. Odom, Jr.. Esq. 

Colonel. USAFR JAGC (ret.) 

Attachment: Suggested SCRA Technical Amendments and Additions 

9 
80 

SUGGESTIW SCRA TECHNICAL AMENDMENTS AND ADDITIONS 

John S. Odom. Jr.. Esq. 

Col, USAF (ret.) 

Jones & Odom, L.L.P. 

Shreveport, Louisiana 

3!8-221-1600 

l_c~)ll,,>d '' 112fuc1c!p_l_g_l~~c_,,,l1 

27 \1arch 2014 

The suggested amendments to the SCRA listed below are in numerical order as they would be 

found in the SCRA. not in order of imponance: 

1. Amendment to Section 102 (50 U.S.C. §512) 

Provide that mandatory arbitration agreements, unless ratified by the serviccmembcr after 

rights under the SCRA have accrued and a controversy has arisen. are invalid. 

2. Amendment to Section 107 (50 U.S. C. §517) 

Provide that waivers of rights under the SCRA (including waiver of the right to bring a 

civil action rather than submit to mandatory arbitration) cannot be executed until after the right 

accrues and must be in an instrument separate from the document that created the obligation. 

3. Amendments to Section 201 (50 U.S.C. App. §521) 

a. Require that the attorney appointed to represent the absent servicemember 

make some reasonable effort to locate the servicemember and, at a 

minimum, run a check through the DoD Defense Manpower Data Center 

SCRA website and attach a copy of that search results. 

b. Require that any information in the hands of the plaintiff concerning the 

whereabouts or identify of the person for whom the attorney has been 

appointed be communicated by plaintiff or plaintiff's counsel to the appointed 

attorney. 

c. Amend Section 201 (b)(2) to provide that the reasonable fees of the attorney 

appointed to represent the servicemember shall be taxed as costs of court, 

unless the creditor seeks relief from such charges from the court 

4. Amendment to Section 303 (50 U.S.C. App. §533) 

!0 
81 

Revise first sentence of (a) to read "'This section applies only to an obligation on real or 

personal property owned by a servicemembcr or an obligation on real or personal propertv fbr 

which a servicememher is personallv liahle as a guarantor or co-maker that 

5. Amendments to Section 305 (50 U.S.C. App. §535) 

a. Change the title of the section to "Termination of premises or motor vehicle 

leases" (It currently reads "Termination of residential or motor vehicle leases" 

but authorizes the termination of leases for both residential purposes and 

many other purposes. This is going to cause a problem someday) 

b. Provide that an order to move into base housing (including privatized 

housing) is a grounds for terminating a lease; 

c. Define a "permanent change of station" (subsections ( b)(1)(B) and (b)(2)(B)) 

as the same as the definition found in the Joint Federal Travel Regulations. 

d. Move subsection (i) to the end of current Section 101 (50 U.S.C. App. §511), 

so that those definitions will apply to all sections of the SCRA. 

6. Amendment to Section 501 (50 U.S.C. App. §561) 

Add a new subsection (a)(3) to protect from tax sales: 

"real property occupied for professional. trade, business or agricultural 

purposes by a business (without regard to the form in which such 

profession. trade. business or agricultural operation is carried out) owned 

entirely by a servicemember or a servicemcmbcr and his or her spouse. 

when written notice has been given by the scrvicemember to the taxing 

authority ofthe scrviccmcmber's active duty status."' 

A Guardsman or Reservist's small business is likely going to he a 

Subchapter S COI])(lration or a limited liability company. The 

servicememher will not he personally liablejbr property taxes on the 

business property However, if a taxinx authority seizes and sells the 

servicemember 's company's propertyfbr unpaid taxes while the 

servicemember is gone on deployment, .fbr example, the injury to the 

servicemember is just as great as it would he if he/she owned the property 

personally Since the taxing authority would have no way to know the 

property was owned by a seiTicemember-owned business. written notice of 

active duty status should be requiredfi'omthe servicememher to the taxing 

authority (which would not be the case in the event the property was 

mrned in the name of' the servicememher.) 

II 
82 

7. Amendment to Section 602 (50 U.S.C. App. §582) 

This section needs to he completely re-written. At present. no Service Secretary issues 

the types of certificates of service contemplated by Section 602. The SCRA should provide 

that a certificate from the Defense Manpower Data Center SCRA database (which can be 

accessed free of charge via the Internet) could be substituted as one of the documents that will 

be considered primafctcie ev idencc of active duty status. 

8. Amendment to Section 802 (50 U.S.C. App. §597a) 

Clarify that the section (providing for private causes of action to sue for damages for 

violations of the SCRA) applies to any violation of the SCRA occurring on. before or after 

October 13, 20 I 0. 

9. New added Section on expiration of licenses and continuing education 

required to maintain licenses during periods that servicemembers are 

entitled to hostile fire pay: 

Add a section to provide that: 

a) if any license issued by a state or local government (including licenses for 

drivers of vehicles or motorcycles, truck drivers, nurses, attorneys, architects, 

engineers, doctors, contractors or any other trade or profession licensed by a 

state) expires during a period that a servicemember is entitled to hostile fire 

pay, the license shall be automatically extended for a period of 180 days after 

the servicemember's entitlement to such hostile fire pay terminates; and 

b) If any continuing education courses are required of a servicemember to 

maintain a license for a trade or profession, the requirement for such 

continuing education hours shall be extended during any period that the 

servicemember is entitled to hostile fire pay and for a period of 180 days after 

the servicemember's entitlement to such hostile fire pay terminates. 

Guardsmen and Reservists who are deployed cannot renew 

licenses and should not be penalized or deterred from reemployment when they return home after their duty. Similarly, 

there is no place in a war zone for continuing legal education 

classes and examinations or similar mandatory training for doctors, 

CPAs, engineers, nurses and the like. It should all wait until after 

the Guardsman or Reservist returns home and has a reasonable 

amount of time to get current on training/certification requirements. 

12 
83 

Reserve Officers Association of the United States 

And 

Reserve Enlisted Association 

From Major General Andrew "Drew" Davis, USMC (ret.) 

National Executive Director, ROA 

for the 

Senate Judiciary Committee 

Subcommittee on Oversight Federal Rights, and Agency Actions 

"Access to Justice for Those Who Serve" 

March 27, 2014 

RESERVE OFFICERS 

ASSOCIATION 

"Serving Citizen Warriors through Advocacy and Education since 1922."TM 

Reserve Officers Association 

1 Constitution Avenue, N.E. 

Washington, DC 20002-5618 

(202) 646-7719 

REA 

)f.!\\:'E lNL!':JlL 

! l! :, 

Reserve Enlisted Association 

101 Constitution Ave N.E. Suite 200 

Washington, DC 20002 

(202) 646-7715 
84 

The Reserve Officers Association of the United States (ROA) is a professional association of commissioned 

and warrant officers of our nation's seven unifnrmed services and their spouses. ROA was founded in 1922 

during the drawdown years following the end of World War L It was formed as a permanent institution 

dedicated to National Defense, with a goal to teach America about the dangers of unpreparedness. When 

chartered by Congress in 1950. the act established the objective of ROA to: " ... support and promote the 

development and execution of a military policy tnr the United States that will provide adequate National 

Security." 

The Association's 55.000 members include Reserve and Guard Soldiers, Sailors, Marines, Airmen, and Coast 

Guardsmen who frequently serve on Active Duty to meet critical needs of the unitnrmed services and their 

families. ROA's membership also includes commissioned officers from the U.S. Public Health Service and 

the National Oceanic and Atmospheric Administration who often are first responders during national disasters 

and help prepare tnr homeland security. 

ROA is a member of The Military Coalition where it co-chairs the Guard and Reserve Committee. ROA is also 

a member of the National Military/Veterans Alliance and the Associations tnr America's Defense. Overall, 

ROA works with 75 military, veterans, and family support organizations. 

President: 

CoL Walker Williams, USAF (Ret.) 

StatTContacts: 

Executive Director: 

Major General Andrew "Drew" Davis, USMC (Ret) 

Legislative Director: 

CAPT Marshall Hanson. USNR (Ret) 

Air Force Director: 

CoL Bill Leake, USAFR 

Army and Strategic Defense Education Director: 

Mr. "Bob" Fe idler 

USNR, USMCR. USCGR: 

CAPT Marshall Hanson, USNR (Ret) 

Service Members' Law Center Director: 

CAPT Sam Wright, JAGC. USN (Ret) 

202-646-7706 

202-646-7726 

202-646-7713 

202-646-7713 

202-646-7717 

202-646-7713 

202-646-7730 

The Reserve Enlisted Association is an advocate for the enlisted men and women of the United States Military 

Reserve Components in support of National Security and Homeland Defense. with emphasis on the readiness, 

training. and quality of life issues affecting their welfare and that of their families and survivors. REA is the 

only joint Reserve association representing enlisted reservists all ranks from all five branches of the military. 

Executive Director 

CMSgt I ,ani Burnett. USAF (Ret) 202-646-7715 

DISCLOSURE OF FEDERAL GRANTS OR CONTRACTS 

The Reserve Officers and Reserve Enlisted Associations are member-supported organizations. Neither ROA 

nor REA have received grants, subgrants, contracts, or subcontracts from the federal government in the past 

three years. All other activities and services of the associations are accomplished free of any direct federal 

funding. 
85 

EXECUTIVE SUMMARY 

Improvements to increase employment supported by ROA and REA toll ow: 

Employer Support: 

Continue to enact tax credits for health care and diiTcrcntial pay expenses for deployed Reserve 

Component employees. 

Provide tax credits to offset costs for temporary replacements of deployed Reserve Component 

employees. 

Supp011 tax credits to employers who hire service members who supported contingency operations. 

Employee Support: 

Permit delays or exemptions while mobilized ofregularly scheduled mandatory continuing education 

and licensing /certification/promotion exams. 

Continue to support a Jaw center dedicated to USERRA/SCRA problems of deployed Active and 

Reserve service members. 

Unijimned Services Emplu)menl cmd Reemployment Rights Act (L/St'RRA !:Serviccmembers Civil ReliejAct 

(SCRAJ. 

Improve SCRA to protect deployed members from creditors that willfully violate SCRA. 

Fix USERRAiSCRA to protect health care coverage of returning service members and family for 

continuation of prior group or individual insurance. 

Broaden the !Jipes of insurance that the service member is entitled to reinstate atl:er returning from 

military service, such as protections for professional, dental, and disability coverage. 

Enact USERRA. protections ft)f employees who require regularly scheduled mandatory continuing 

education and licensing/certification and make necessary changes to USFRRA to strengthen 

employment and reemployment protections. 

Amend SCRA to add a provision that the expiration dates of any license or certification issued by any 

state or federal agency (including drivers, nurses', contractors licenses, etc.) shall be extended to a 

period of90 days a iter release from active duty. 

lnclude protections on leases and contracts impacting mobilized small business owners. including the 

ability to terminate or suspend a contract or lease fOr services or goods. 

Exempt Reserve Component members tfom federal law enforcement retirement application age 

restrictions when deployment interferes in completing the application to buy back retirement 

eligibility. 

Encourage Federal agencies to abide by USERRAiSCRA standards. 

Ensure USERRA isn't superseded by binding arbitration agreements between employers and Reserve 

Component members. 

Make State employers waive II'" Amendment immunity with respect to USERRA claims, as a 

condition of receipt of federal assistance. 

Make the award of attorney fees mandatory rather than discretionary. 

On behalf of our members. the Reserve Officers and the Reserve Enlisted Associations thank the 

committee for the opportunity to submit testimony on access to justice for those who serve, and how this 

can be improved. ROA and REA applaud the ongoing etTorts by Congress and this committee to address 

employment problems faced by so many veterans and service members. 

Many outstanding citizen Soldiers, Sailors. Airmen, Marines, and Coast Guardsmen have put their 

civilian careers on hold while they served our country in harm's way. They shared the same risks with 

their counterparts in the Active Components on the battlelield, but did not always have assurance of a job 

when they returned home. While laws exists to provide reemployment and employment protection, many 
86 

Reserve and Guard members had to seek private representation. when the Department of Labor, or the 

Department of Justice failed to address their cases. 

Just last week, we passed the 894.126 mark for the number of Reserve and Guard service members who 

have been activated since post-9/ll with nearly 40,500 still on active duty. More than336.250 have been 

mobilized two or more times. The United Stales has created a new generation of combat veterans that 

come fi·om its Reserve Components (RC). It is important. therefore. that we don't squander this valuable 

resource of experience nor ignore the protections that they are entitled to because of their selfless service 

to our country. Thirty percent of those who served in Iraq or Afghanistan were Reserve or Guard 

veterans, according to the Department of Labor. 

The dual status of veteran and serving member complicates the employment of Guard and Reserve 

members returning from mobilization. They face retuming to communities that don't have the same 

support structure that is available if they were near military bases. High numbers of them have been 

unable to find reemployment during this war and economic recession. Some Army National Guard units 

returned with unemployment levels above 35 percent. 

The unemployment rates of veterans and Guard and Reserve members have been higher than the national 

average rate for veterans overall. !'he Bureau of Labor Statistics reports that in February 2014, 

unemployment has risen back to 16.6 percent of veterans between 18 to 24 years of age, and climbed to 

18.8 percent of veterans between 25 to 29 years of age. The 18 to 24 year old group and the 25 to 29 year 

old group are made up in large part of the National Guard and Reserve members. 

While non-affiliated veterans have a better employment rate than the national average at 6.3 percent, 

stealth discrimination continues to make employment and even reemployment harder for returning 

Reserve and Guard members. because they are veterans who continue to serve. 

ROA and ROA fear that the unemployment rate is so high because employers are shying away from 

hiring potential employees who are serving in the Reserve Components. although such discrimination is 

clearly unlawful under section 4311 of USERRA. Three surveys show that between 60 to 70 percent of 

employers won't hire new employees who are affiliated with the Reserve and the Guard. 

Employment Protections 

Veterans and service members are provided protections through the i'Jational Committee for 

Employer Support of the Guard and Reserve (ESGR), the Unif(mned Services Employment and 

Reemployment Rights Act (USERRA). and the Scrvicemembcrs Civil Relief Act (SCRA). 

Notwithstanding the protections afforded veterans and service members, as well as antidiscrimination 

laws. it is not unusual for members to lose theirjobs due to time spent away while deployed. Sometimes 

this is because the employers have gone out of business, but more often because it costs employers 

money, time, and effot1 to reintroduce the employee to the company. thus violating USERRA obligations. 

Higher unemployment rates for younger Reserve and Guard members provide silent testimony to the 

stealth discrimination that remains. Faced with an operational Reserve model, many employers anticipate 

that Reserve Component members will continue to be called up once every five years. Smaller businesses 
87 

can ill-afford to lose key people and remain productive. They may congratulate an applicant on his or her 

military service, and then simply fail to follow-up. 

USERRA's enlorcement mechanism for States, political subdivisions of States, and private employers 

involves the U.S. Department of Labor (DoL) as well as the Department of Justice (DoJ). On paper, the 

Department of Labor (DOL) and Department of Defense (DoD) share responsibility for promoting a clear 

understanding of USERRA among employers and individuals concerning their respective rights and 

responsibilities under USERRA. DOL's Veterans' Employment and Training Service (VETS) and DOD's 

National Committee lor Employer Support of the Guard and Reserve (ESGR) provide extensive public 

education, outreach, and compliance assistance with the goal of preventing violations caused by 

ignorance or misunderstanding of the law and ensuring that protected individuals understand their rights 

and know what assistance is available to help them secure those rights. 

Both DoD's ESGR and DoL fall short at helping the number of Reserve and Guard members facing 

employment challenges. In the vast majority ofUSERRA cases tiled in comi, the plaintiff has been 

represented by private counsel or (worse) has proceeded prose, and in only a very small minority of cases 

has DoJ acted as attorney tor the plaintifC as Congress intended. 

ESGR: While the National Committee for Employer Support of the Guard and Reserve has done a 

commendable job in the past, ROA is concerned that it has shifted its focus from working to help the 

individual serving member to recognizing supportive employers. ES(IR (Employer Support oft he Guard 

and Reserve) is tasked with being the first bridge-gap to moderate the unemployment problem, With over 

4.900 volunteers, ESGR fielded 21.521 USERRA inquiries and handled 2.793 cases in FY-2012, a 3 

percent decline in inquiries. In FY 2012. ESGR volunteers communicated with 161,440 employers and 

482.916 service members, informing both groups on the responsibilities and rights under USERRA. 

lfESGR can't resolve differences between the employer and the Reservist, then the cases are sent to the 

Department of Labor for review, and the Department of Labor can't handle the number of requests as 

formal cases. Most successful reemployment lawsuits are being handled by private lawyers. 

The Commission on the National Guard and Reserve made key recommendations including expansion of 

the ESGR to enable it to work new employment as well as reemployment opportunities, the creation of an 

employer advisory council. and regular surveys to determine employer interests and concerns over 

reemployment of Guard and Reserve members. Unfortunately. the budget recommendation is to reduce 

ESGR"s budget. 

Dept of Labor: If a service member believes his or her USERRA rights have been violated, he or she 

may file a complaint with the United States Department of Labor Veterans Employment and Training 

Service (VETS). VETS will analyze the complaint. determine if a violation of USERRA has occurred 

and. if it has, try to negotiate a resolution of the situation with the employer. ln FY 20 l 2 alone, VETS 

presented USERRA information to more than 75,000 people 

A Fiscal Year 2012 U.S. Department of Labor report found that nearly 37 percent of the complaints 

reviewed by its Veterans' Employment and Training Service under the Uniformed Services Employment 
88 

and Reemployment Rights Act contained allegations of discrimination on the basis of past. present, or 

future military service or status, An additiona127 percent of the complaints involved allegations of 

improper reinstatement into civilianjobs following military service, In all VETS reviewed 1,466 unique 

USERRA complaint cases in FY 2012, according to the report 

If unable to negotiate a resolution, VETS has no enforcement authority, The service member will 

then be informed that he or she may initiate a legal action against the employer, whether with or 

without an attorney, VETS typically will also ask the service member if he or she wants the 

matter forwarded to the Office of Special Counsel for cases involving when the federal agencies 

are employers. or to the United States Attorney General for cases involving State. local or private 

sector employers. However. these oflicials typically decline to pursue the matter. The 

Department of Justice tends to pursue only the most high visibility cases. As most Reserve 

force members work for small business or local governments they rarely have federal 

representation. 

DOL involvement doesn't always help a Reservist. Evan !!art was a dentist who served in Iraq. 

After returning to work. Dr. Hart was notified by his boss on day-3 that he would he terminated 

in 60 days. That 60 days' notice became 30 days' notice when Hart protested. After Hati tiled a 

USERRA complaint with the Department of Labor, the Department told Hart's employer that he 

could not he tired for 180 days. Management complied with that directive. and tired him after 

180 days. Coutts held that Hart didn't have a USERRA case for continued complaint. 

Unfortunately. the number of cases supported by federal agencies doesn't reflect the needed 

support by Reserve and National Guard members. The federal emphasis has shifted from 

representation to education, which doesn't help individuals facing employment or reemployment problems. 

ROA, with a one man office provides information to over 800 contacts each month. In 2013. 48.6 percent 

of the queries were USERRA related. Information about ROA 'sLaw Center can be found later in this 

testimony. 

Just this week, the Department of Justice filed a lawsuit today against Con-Way Freight Inc. 

alleging that the company violated the uniformed Services Employment and Reemployment 

Rights Act (USERRA) by failing to promptly reassign a Navy Reservist. Dale Brown, to his 

former position as a driver with appropriate seniority once he notified the company that he had 

fully recovered from a temporary service-related medical disability. 

ln2006. Brown was working at Con-Way's Rock Island. Ill. facility when he reported to active 

duty. While in Iraq. Brown suffered a serious shoulder injury in a truck accident during a night 
89 

mission and returned to Con-Way in 2009 following an honorable discharge. Con-Way placed 

him in a lower-paying position due to medical restrictions that prevented him from returning to 

his pre-service position. 

In February. DOJ filed a lawsuit against the Missouri National Guard (MNG) alleging that the 

MNG violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) 

by requiring its dual technician employees to resign from their civilian positions prior to active 

duty service in the U.S. Army Guard and Reserve. The MNG's resignation requirement denied 

the complaint the benefit of 15 days of annual. and paid annual military leave that she would 

have been entitled as a dual technician. 

The DoJ successfully sued the City of Milwaukee in 20 I 0. claiming that the city violated 

USERRA when it did not provide a police officer with the opportunity to take a make-up 

examination for promotion to detective that he missed while on active duty military service, 

thereby denying him the seniority. status and compensation he would have received but for his 

active duty service in the military. The city later promoted the oftlcer to detective after he 

passed the next scheduled examination, but the delay still resulted in his loss of pay, seniority 

and other benefits. including eligibility for future promotions. The settlement provided for 

retroactive promotion date in the rank of detective, $21,190 in back pay. retroactive seniority and 

other benefits. 

In FY 2012. VETS referred Ill cases to the Justice Department's Civil Rights Division and 23 

cases to the Ot11ce of Special Counsel. 

DOJ filed nine USERRA complaints in FY 2012. 12 USERRA complaints in FY 201 I. and five 

complaints in FY20 I 0. DOJ peaked in FY 2009 working 22 complaints, compared to 12 in 

2008, seven in 2007 and three in 2006. DOJ tends to be selective. pursuing highly visible 

actions. based either on the size of the plaintiff or the subject of the complaint. 

Most Reserve and Guard members are hired by smaller companies. Over 35 percent of 

employees in America work for businesses with I 00 employees or less. according to the Census 

Bureau. These small businesses violations most often fly below the Department of Justice's 

radar. 

The USERRA case that was heard at the Supreme Court Staub v. Proctor Hospital- was 

represented by private counsel. The Supreme Court ruled unanimously that an employer may be 

liable under the USERRA when the discriminatory actions of an intermediate supervisor who 

doesn't make firing decisions influence the firing decision maker. Vincent Staub, a member of 

the Army Reserve. sued his employer after his employment was terminated. He alleged that he 

was a victim of anti-military discrimination in violation of USERRA. Mr. Staub based his claim 
90 

on his supervisors· alleged anti-military bias. asserting that they influenced the manager who 

fired him. even though the manager claimed she didn't take such bias into account. 

Subordinate discrimination at the middle manager level has been hard to prove. which was why 

the complainant sought private counsel. Vincent Staub claims he first went to DoL seeking 

assistance. but VETS denit:s it. 

Sgt. Maj. Richard Erickson was fired in 2000 by the Postal Service for taking too much time ofT 

for National Guard duty he was terminated for taking "excessive military leave." A federal 

board denied a Postal Service appeal and ordered the agency to restore his job and give him 14 

years of back pay and other benefits that could total about $2 million. This case was handled by 

a private attorncv. and it reflects the amount of time that a law firm can invest in a contingent fee 

arrangement case. USERRA cases are complex. which is why there is an aversion for private 

lawyers to accept such cases. 

In 2009. a federal judge in the case of Michael Serricchio v. Wachovia Securities L.L.C.. New 

Haven. Connecticut. awarded Serricchio $291.000 in back pay and $389.000 in damages. plus 

fees and costs. The judge also ordered Wachovia to reinstate Serricchio as a financial advisor 

with the full package of employment benefits. The case was filed in 2005 after Mr. Serricchio 

had returned from active duty and he was represented by a private firm. What was unique about 

this case was that it determined that USERRA applies to employees who work on commission. 

and that a corporation that assumes ownership of another corporation. also inherits 

responsibilities. Wachovia had become part of Wells Fargo & Co. 

It is patiicularly important that Do.l act as attorney in those cases where the defendant (employer) 

is a state, because in those cases there is literally no remedy if DOJ does not get involved. It has 

been held that USERRA is unconstitutional, under the II th Amendment. insofar as it authorizes 

a private individual to bring suit. in his or her own name. in Federal District Court. against a 

state. 

Congress solved the II th Amendment problem by amending USERRA in 1998. Congress added 

the following sentence: "In the case of such an action [to enforce USERRA] against a State (as 

an employer). the action shall be brought in the name of the United States as the plaintiff in the 

action." 38 U.S.C. 4323(a)(l) (final sentence). Only Do.l can bring an action in the name of the 

United States. When the employer is a state. there can be no enforcement of USERRA unless 

Do.l brings the suit. 
91 

A compelling example of this problem is the case of Staff Sergeant Aldous Copeland, of the 

South Carolina Army National Guard. 

Mr. Copeland was called to the colors and deployed to Afghanistan. I le left his job at the South 

Carolina Department of Corrections (SCDC). After his deployment and release from active duty, 

he returned in January 2012 and requested reinstatement to work in April from the State of South 

Carolina. He met the USERRA eligibility criteria for reemployment (see appendix). 

Staff Sergeant Copeland was entitled to prompt reemployment in his civilian job, and under 

scction4317(b) of USERRA; he was also entitled to immediate reinstatement of his health 

insurance coverage, through his civilian job, with no waiting period and no exclusion of preexisting conditions. SCDC failed to reinstate his health insurance coverage upon his reemployment. in 

a clear and egregious violation of USERRA. 

Staff Sergeant Copeland did not realize that his health insurance coverage had not been 

reinstated until several months later, when he scheduled a routine check up with his doctor. The 

visit was canceled at the last minute when it was realized that the State had not reinstated his 

health insurance coverage. and he was uninsured. 

When symptoms appeared for colon cancer. Mr. Copeland sought coverage and treatment by the 

United States Department of Veterans Affairs as this was the only option he was left. As a 

combat veteran. he scheduled a colonoscopy through the Department of Veterans Affairs (VA), 

but because of a backlog at the VA, several months went by before the colonoscopy could be 

performed. 

When the colonoscopy was finally done, colon cancer was diagnosed. The delay in the medical 

procedure has deprived Staff Sergeant Copeland of the oppot1unity to get timely and effective 

treatment and has greatly diminished his quality of live. his life expectancy and increased his 

suffering. The delay in the medical procedure has caused unknown medical irreparable harm to 

Staff Sergeant Copeland, and he is forced to drive two (2) hours from home to receive 

chemotherapy treatments whereby he then must stay in a hotel to recover until he is healthy 

enough to drive the two (2) hours back home. His filed complaint is that this delay in diagnosis 

and treatment is directly attributable to South Carolina's failure to comply with USERRA. 

Because of the I I th Amendment to the United States Constitution, Mr. Copeland cannot sue the 

State of South Carolina in federal court, so he filed suit in state court. SCDCs attorneys have 

claimed the State's Leave Without Pay ("LWP") Policy is not pre-empted by USERRA. The 

State's LWP Policy contradicts USERRA whereby the State is claims that because Aldous 

Copeland didn't .lpecificalfy ask for his health insurance to be reinstated within thirty-one (31) 

days, he had to wait until January 2014 during open enrollment to re-apply. 
92 

The State has not denied that they violated USERRA. but they contend that "you cannot do 

anything about it because we have sovereign immunity.•· 

Mr. Copeland is most ably represented by attorney John G. Reckenbeil of Spartanburg, South 

Carolina. Mr. Reckenbeil is present in the hearing room and available to answer any questions 

that you may have about this case. 

[SERVICE MEMBERS LAW CEN!§.'3: _____________________ _ 

To better serve Reserve Foree and active duty members and veterans on legal issues, the ROA established 

in the summer of2009 the Service Members Law Center (SMLC) as a source of information on legal 

issues relating to military service. 

The Law Center's goals include the following: 

Advise Active and Reserve members who have been subject to legal problems that relate to their 

military service. 

Develop a network of legal scholars. law school clinics and private practitioners interested in 

legal issues of direct importance to service members. 

Advance world-class continuing legal education on issues relating to the Uniformed Services 

Employment and Reemployment Rights Act (\JSERRA) and the Servicemembers Civil Relief 

Act(SCRA). 

Rroaden the existing database of USERRA and SCRA research. 

In conjunction with bar associations, develop standards that will help to ensure that lawyers to 

whom service members are referred tor legal services have the requisite expertise to represent 

them effectively. 

Recruiting and retaining members of the armed services. especially those in the National Guard and 

Reserve. depends in pmi on assuring current and future Citizen Warriors that laws and regulations arc in 

place to protect them effectively fi·om discriminatory practices. 

The Law Center is functioning at a modest but effective level. ROA is pursuing efforts to obtain private 

or public li.mding and to identi(v public and private entities willing to sustain this eftort in order to expand 

this service to fuller capacity. This is especially needed following potential cuts to ESGR. 

As pmi of the S:vJLC and under director Captain Samuel r. Wright. JAGC. USN (Ret.) the Law Center 

maintains the "Law Review" data base and indices contain over I 000 articles on USERRA and other 

military legal topics (available at www.servicemembers-lawccnter.org). On a monthly basis CAPT 

Wright receives about 750-800 calls fhlln concerned service members. family members, attorneys and 

others. Almost half of these calls are about USERRA. 

The Law Center's services include: 

Counseling: Review cases. and advise individuals and their lawyers as to lawfulness of actions 

taken against deployed active and reserve component members. 

Referral: Provide names of attorneys within a region who successfully taken up USERRA, SCRA 

and other military-related issues. 

Promote: Publish articles encouraging law firms and lawyers to represent service members in 

USERRA. SCRA and other military-related cases. 

Advise: File amicus curiae or "friend of the court" briefs on service member protection cases. 
93 

Educate: Seminars to educate attorneys and give them a belter understanding of USERRA, SCRA 

and other military-related issues, 

The Service Members Law Center is available at"" 1\,servicemembcrs-lil"<;enter.ort!. 
94 

Appendix 

Background about USERRA 

Perhaps the most important law, especially for RC service members, is the Uniformed Services 

Employment and Reemployment Rights Act (USERRA), which was enacted in 1994, as a longoverdue rewrite of the Veterans' Reemployment Rights Act (VRRA), which was originally 

enacted in 1940 as part of the Selective Training and Service Act our nation's first peacetime 

conscription law. 

Under USERRA, a person who leaves a civilian job for voluntary or involuntary military service, 

in the AC or the RC, is entitled to reemployment in the pre-service job if he or she meets five 

simple conditions: 

a. Must have left the civilian job lor the purpose of performing voluntary or involuntary 

service in the uniformed services-active duty, active duty for training, inactive duty 

training, initial active duty training. etc. 

b. Must have given the employer prior oral or written notice. 

c. Cumulative period or periods of uniformed service, relating to the employer relationship 

for which the person seeks reemployment. must not have exceeded five years. All 

involuntary service and some voluntary service are exempted from the computation of the 

individual's five-year limit. 

d. Must have been released from the period of uniformed service without a disqualifying 

bad discharge from the military. 

e. After release. must have made a timely application for reemployment with the pre-service 

employer. 

A person who meets these simple conditions is entitled to prompt reinstatement in the position 

that he or she would have attained if continuously employed. which is usually but not always the 

position the person left. Upon reemployment, the person must be treated as if he or she had been 

continuously employed in the civilian job, lor seniority and pension purposes. USERRA also 

makes it unlawful for an employer to deny a person initial employment (not hiring), retention in 

employment (firing), or a promotion or benefit of employment on the basis of the person ·s 

membership in a uniformed service, application to join a uniformed service, performance of 

service. or application or obligation to perform service. 

USERRA applies to almost all employers in the United States, including the Federal 

Government, the states and their political subdivisions. and private employers, regardless of size. 

You only need one employee to he an employer for purposes of USERRA. although other federal 

laws (including Title VII of the Civil Rights Act of 1964) only apply to employers with !5 or 

more employees. 

Among employers in the United States. only religious institutions (on First Amendment 

grounds), Native American tribes (on residual sovereignty grounds). and international 

organizations (World Bank. United Nations) and foreign embassies and consulates (on 

diplomatic immunity grounds) are exempt from USERRA enforcement. 
95 

USERRA applies all over the world to the U.S. Government and to U.S. companies. It protects: 

I. Re-employment Upon Return from Active Duty 

2. Initial employment hiring 

3. When employment conflicts vvith Inactive Duty Training 

4. Health Insurance Guarantee 

5. Freedom From Discrimination and Retaliation 

The federal reemployment statute has applied to the Federal Government and to private 

employers since 1940. In I 974. as part of the Vietnam Era Veterans Readjustment Assistance 

Act. Congress expanded the application of the law to include state and local governments. In 

1974. the Senate Veterans· Affairs Committee explained the rationale for this expansion: 

·'The Department of Labor generally favors such an amendment to the law. It believes that 

schoolteachers. policemen. and other public employees returning from military service should 

not be denied reemployment rights provided for other veterans. 

"'The Military Selective Service Act of 1967 declares it to be the sense of Congress that States 

and their subdivisions extend to veterans the same reemployment rights as do the Federal 

Government or private industry under present law. The provision now relating to State and local 

governments. however. is not binding under the law and. as a consequence. many returning 

veterans have found that their jobs in State or local government no longer exist. Furthermore. 

because these stated reemployment rights are not mandatory upon State and local governments, 

these veterans lose all benefits which would have accrued to them had they not entered military 

service . 

.. This year [ 1974] it is expected that an estimated half million Vietnam veterans will be separated 

from military service. More than half of these young men were employed prior to their entering 

service. Under the Military Selective Service Act of 1967, those who held jobs with the Federal 

Government or private industry are assured that their job rights are protected. This is not the case 

with those veterans who previously held jobs as school teachers, policemen, firemen. and other 

State, county. and city employees. 

·'Although a number of States have enacted legislation providing reemployment rights to 

veterans. the coverage, the rights provided. and the availability of enforcement machinery all 

vary considerably from state to state. Also. some State and local jurisdictions have demonstrated 

a reluctance, and even an unwillingness. to reemploy the veteran. Or if they do, they seem 

unwilling to grant them seniority or other benefits which would have accrued to them had they 

not served their country in uniform."- Senate Report No. 93-907, 93'd Congress. Second 

Session, pages 109-110 (June 10, 1974). 
96 

Kenneth "Gene" Savage 

Lieutenant, United States Navy Reserve 

Memphis, Tennessee 

----·----------

U.S. Senate Committee on the Judiciary Hearing: 

"Access to Justice For Those Who Serve" 

Wednesday, March 24,2014 

3:00p.m. 
97 

Good afternoon Chairman BlumenthaL Chairman Leahy. Ranking 'vi ember !latch and other 

distinguished 'vlembcrs of the Committee. I ;;ould like to thank the Committee for the opportunity to share my 

story here today. 

My name is Kenneth Eugene Savage. Jr. 'vly friends and family call me .. Gene:· I am proud to tell you 

that I have served over 24 years in the U.S. 'lavy. I began serving on active duty in the Navy from February 

1990 to November 1998. as an Aircratl Electrician; attaining the rank of2"a Class Petty Officer. Just a few days 

after my honorable discharge from active duty. I subsequently enlisted in the Navy Reserve. Whilst serving. I 

earned a Bachelor of Science in Professional Aeronautics with a i'v1inor in Aviation Business Administration 

from Embry-Riddlc Aeronautical university and then applied f(Jr a Direct Commission Officer and was 

awarded the designation of Aircran Maintenance Duty Officer. I currently serve as a Lieutenant with YR-54 in 

New Orleans, LA. as a member of a C -130 unit delivering personnel and cargo around the globe. 

I was born in 'vlobile. Alabama. \\here my father served as a Seaman in the Coast Guard. I currently live 

in the Memphis-area with my wife of 10 years. Michelle. I have one son named Quentin. a junior at Fayette 

Academy. and a step-daughter named Kathryn Luckman. a junior at Austin Peay State University. I have 

worked in the aviation maintenance industry all of my life. 

I began my career at Fed Ex in 200 I. as a junior aircraft maintenance avionics technician, working the 

graveyard shill. Early on in my career at fed Ex. I became aware that the company had policies that 

discriminated against its employees who were service members like me. In August of2004. FedEx. in both 

policy and practice. punitively charged Guardsmen and Reservists for overtime opportunities they Vvcre 

unavailable for because they were completing their required military service. At the same time. non-service 

member employees who \vcre on vacation. celebrating holidays. on temporary assignments. even doing jury 

duty. were never charged f(x missing those same ove11ime opportunities when not available to vvork at their 

assigned work centers. And then, because employees\\ ith the lowest number of cumulative overtime hours are 

offered o;ertime first. service members at fed Ex were less likely to be offered overtime opportunities as a 

result of accumulating overtime hours while performing military service. The cost of this disparate treatment to 

individual service members had the potential to amount to thousands or even tens of thousands of dollars 

annually. After \Vorking vvith other service members over the course of 8 months. \VC \verc finally ahle to 

change this discriminatory policy and end the practice. 

FedEx"s contempt towards Guardsmen and Reservists was illustrated again in May 2007. with a policy 

and practice that placed service members on .. Military Leave of Absence .. v.hile performing any military duty . 

.. Military Leave of Absence .. was the means by which Fed Ex deprived Guardsmen and Reservists of both 

seniority and non-seniority based employee benefits. In sho11. l'edEx·s policies and practices surrounding the 

use of"'Military Leave of Absence .. deprived service members of things like: participation of work shift 
98 

bidding. bidding on training/career development classes. bidding on overtime. scheduling of vacation and 

holidays. use of company jumpscats. and means of accruing vacation and company scheduled holidays. Fed Ex 

corrected some of these individual disparate conditions after the Veterans Employment and Training Service 

within the Department of Labor (DOL VETS) investigated and detennined that the "Military Leave of 

Absence" policies and practices "ere in fact discriminatory per USERRA. 

In March 2008. fellow fedEx employee. service members and I publicly expressed our concerns about 

FedEx"s new Portable Pension Account retirement program. as it applied to periods of military service. The 

Senior VP of Technical Operations at Fed Ex. Gregory !!alL assured us that the new system \VOuld credit service 

and applicable imputed income vvhen employees return to active employment He further stated. "Any missed 

employer matching contributions will be credited monthly in the same amount as if you had been \\'Orking 

during the period of military leave ... As far back as 2006. Fed Ex knew that it had an issue with properly 

crediting service member's retirement accounts. In January 20 I 0. Fed Ex admitted it had failed to make 

appropriate contributions into a fellow reservist's 40 I K account and then made an un-substantiated contribution 

correction. Finally. in June 2012. I became concerned with apparent discrepancies in my own retirement plans 

due to my years of military service dating back to the start of my employment with FedEx in August 2001. I 

again expressed my concerns to the benefits department to include the public announcement made by the Sr. VP 

in March 2008, but to no avaiL Rather than fix the problem with the failed contributions to my pension plan. 

Fed Ex sent me bouncing from one department representative to another. T\vO months later. I was terminated! 

It was apparent from my sudden termination that FcdEx was upset with my persistence in questioning its 

policies and practices relating to service members and retaliated against me by falsely accusing me of violating 

their reduced-rate shipping and Fed Ex office discount policy. This was a policy that FcdEx changed without 

prior notification to employees only days beti:>re my alleged violation. I used FedEx's appeal process. a threetier progression that ended\\ ith President and CEO. David J. Bronczek, and other Sr. VP's upholding my 

termination. 

I then filed a complaint with the DOL VETS which. alter a thorough investigation. found that Fed Ex 

had in fact discriminated and retaliated against me. which lead to my vv rongful termination. During the course 

of the investigation, Fed Ex reinstated my employment but that was shoti-lived. Four days after I v.as reinstated. 

they once again overturned their decision and fired me again. Also, the questions I had about my retirement 

benefits were discussed at that time. FedEx openly admitted that my retirement accounts were incorrectly 

credited throughout my entire II year career. Apparently. the same error that Fed Ex made with my retirement 

account was also made to other service members in their employ. Despite all of this, Fed Ex refused to reinstate 

me after the conclusion of the DOL VETS' investigation in March. 2013. which found my complaint to be 

meritorious. When I asked my DOL VETS investigator. Wendy Harrison. what stood out in her determination 
99 

in my case, she told me that Fed Ex could not demonstrate to her any other similarly situated employees that 

were terminated for violating the same policy either in a civilian or military capacity that were not reinstated to 

their fOrmer fulltime position. It was obvious to her that having a strong military voice and expressing my 

concerns about some ofFedFx's policies and practices, especially when I started looking into the retirement 

issue. \\·as the underlying motivation in FcdEx's decision to terminate my employment. 

Alter two failed mediation attempts to correct my missing retirement funds, (based in pat1 on Fed Ex not 

providing detailed calculations as to how they derived at the figures they presented), the DOL VETS concluded 

their attempts to work this out and told me to refer my case to the Depat1ment of Justice (DOJ) for legal 

representation, DOJ declined to take my case, offering no reason or explanation as to why, I then consulted 

with Captain Sam Wright at the Reserve Officers Association who gave me invaluable advice. I later retained 

Joe Napiltonia v.ho agreed to take my case on a contingency fee basis and frontal! of the costs oftbc litigation. 

even though the statute docs not guarantee that he will even be compensated if we prevaiL For some reason the 

statute states that attorney's fees "may" be awarded to a service member "ho prevails, but it does not say 

"shall" like other employment-related litigation. 

You're probably thinking, "So why doesn't he just go get another job, he's got all this experience," The 

short answer is professionally. if I obtain a job \Vith one of the big air-carriers. I would have to start my career 

all over again. As I mentioned earlier, when I started at Fed Ex, I worked the graveyard shift for approximately 

nine years to earn enough seniority to finally obtain a da)1ime shift so I could spend quality time at home with 

my family. At Fed Ex, I earned approximately $95,000 per year working a straight 40-hour week, not to mention 

extra pay \Vith ovc11ime. 

On a personal note. because of my unvvarranted termination. I \vas in such dire financial straits that my 

wife and I were forced to sell personal and family belongings and my vehicle to make ends meet. Ten months 

atler my termination. my family was forced into a short-sale of our home of almost l 0 years \vhich in turn has 

negatively impacted both my and my wife's credit. In addition, after my sons 141

h birthday, I was granted sole 

custody of him. A major stipulation in the parenting plan was that he finish school at Fayette Academy, were 

he has been a student since Prc-K. Being tied to the Memphis-area until June 2015 limits my ability to find 

another job in the aviation industry. Despite my best efforts, I'm still unemployed. I feel it very impotiant to be 

with my son during his final years in high schooL since he is destined to go to college and then pursue a sound 

career path, at which time I'll never be able to be as close to him again. If I took a job that placed me out of the 

Ylemphis-area, it would severely impact my relationship with him. 

Coming here today to testily bef<xe this Committee was a perplexing decision, But at the end of the 

day, the tragedies my family has been put through since my wrongful termination motivated me to do 

everything I can to make sure this doesn't happen to another fellow service member and their family. I felt it 
100 

was my duty as a Naval Of1iccr to speak on behalf of other service members who face discrimination because 

of their military service. 

This doesn·t have to be the end of the story. It has become clear to me that certain legislative actions 

can and must be taken to help protect service members and their families. Service members. American 

consumers. and even our small businesses should have the SAME access to the justice system as corporations, 

like Fed Ex. 

In speaking to you, I hope I have been able to shed some light on just how critically important this issue 

is nationwide. Quoting Theodore Roosevelt: ··A man who is good enough to shed his blood for his country is 

good enough to be given a square deal aften:vards:· 

Please act swiftly to address these issues and know that I look forward to engaging in a meaningful 

conversation with the Committee members today. Thank you for your time and consideration. 
101 

STATEMENT OF 

IAN DE PLANQUE, DEPUTY DIRECTOR 

LEGISLATIVE COMMISSION OF THE AMERICAN LEGION 

BKFORETHE 

SUBCOMMITTEE ON OVERSIGHT, FEDERAL RIGHTS AND AGENCY ACTIONS 

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ON 

"ACCESS TO JUSTICE ~FOR THOSE WHO SERVE" 

MARCH 27, 2014 

Chairman Blumenthal, Ranking Member Hatch and distinguished Members of the 

Subcommittee, on behalf of National Commander Daniel and the 2.4 million members 

of The American Legion, I thank you and your colleagues for attention you are devoting to 

the struggles of American veterans as they seek benefits and compensation for their injuries and 

illnesses sustained in service to this country. 

Yesterday, National Commander Dellinger addressed a joint session of the House and Senate 

Veterans' Affairs committees and the claims backlog at the Department of Veterans Affairs 

(VA) was at the forefront of concerns he brought before that body. The Commander decried an 

adjudication process "rife with errors and inconsistencies" and stressed that efforts to eliminate 

the backlog must include reform of the work credit system as well as improvement in 

communication between VA and the Department of Defense. 

The American Legion has been deeply dedicated to to end the backlog. The American 

Legion has over 2, 900 accredited service o!licers working from the county to the 

state to the national level to assist over three of a million veterans with their disability 

claims. Annually, The American Legion Regional Office Action Review (ROAR) 

visits in 12 to 15 regional offices. These weeklong ROAR visits examine a random sampling of 

recently adjudicated claims provided to The American Legion by VA, as well as interviews with 

VA staff and American Legion service olliccrs working in the regional o!lices to determine how 

national policies are being implemented in the field. 

It is important to The American Legion to get outside the 

meets the road to examine the problem. Often, even the best policies struggle when 

inconsistently implemented. What we have lound is a wide range of effectiveness in regional 

offices. The variances and lack of consistency contribute to overall efforts to solve the problem. 

!608 K Street + Washington, D.C. 20006 + 
102 

it is important to understand how the backlog is defined. In 2010 at 

The American annual convention in Milwaukee, Wl, the Secretary of Veterans Affairs 

Eric Shinseki out the laudable goal of eliminating the backlog by 2015. Secretary Shinseki 

promised no claims pending for longer than 125 days. and claims being decided with 98 percent 

accuracy. Since that time, the definition of backlog has been generally agreed upon as any claim 

pending longer than 125 days. 

The most recent figures from VA indicate that of the current 630.110 claims pending. 35! .120 of 

those claim, or 55.7 percent of those claims. have been pending longer than 125 days. 1 For 

comparison's sake. in 2010, when the major etfort to reduce the backlog began, VA counted 

510.827 claims pending. with of those claims pending over 125 days. representing only 

38.6 percent of the . While the numbers are certainly higher than they were 

when the major backlog began, at least in 20 !4 have tlnally started to trend back 

dowmvards after several years of steady increases. 

The American Legion is concerned however, because some of the factors in the declining 

numbers may not represent the whole picture. Last year. VA made a major push to work on 

initial claims that had been pending longer than two years, with a subsequent push to address 

claims pending longer than one year. These claims had provisional decisions issued, so they are 

no longer counted as initial claims. Hovvever. there were problems with the provisional ratings. 

Investigation by V A's Office of the Inspector General (VAOIG) round that 91 percent of the 

provisional rating decisions issued were in error, not in with the Veterans Benefits 

Administration (VBA) guidance related to the two year claims initiative 3

. The American 

Legion service officers in other regional offices found similar rates of inconsistency with these 

claims. 

Those claims will have to be appealed. An appealed claim no longer counts as an initial claim. 

and is not as visible statistically when looking to evaluate the state of the backlog. Furthermore. 

while an initial claim may take over a year to resolve. appealed claims can take four to live years 

or longer. thus further denying justice to veterans and increasing their wait times. 

One of the contributing factors to this is the way VA counts work credit. As the current work 

credit system stands. there is no factor for whether the work is done correctly or not. When the 

work is incorrect. veterans must appeal their claims. and clog the system up for a longer period 

of time. While many VA employees would like to be attentive to every detail of a claim. 

they are under tremendous pressure to churn out a number of claims every day. and 

cutting corners becomes natural to meet work quotas. There must be balance. 

for audits and evaluations Office of 

Subcommittee on Disability Assistance and Memorial 

Affairs, United States House hearing on VA' s 

most complex disability claims: ensuring quality, accuracy. and on complicated issues 

2013 

I':\,,, .. 12 1608 
103 

The American I ,eglon recommends examining the work credit system, and developing a work 

credit system that addresses not only the quantity of work performed by employees. 

but also the quality Even a system as simple as giving the employee credit for each 

claim completed. but removing credit when such work is found to be in error would be both 

possible in the new electronic processing environment. and would provide a more reliable picture 

of how work progresses in the offices. Furthermore. getting the claim done right the first time 

would be equally incentivized with getting the claim to the next desk in the chain. 

Finally. a contributing factor to the backlog of claims is the in communication between 

the VA and the Department of Defense (DOD). Because of the and delays. in 2009 

President Obama committed to the long goal of a single, interoperable electronic 

health record that would follow a veteran from the moment they swore their enlistment oath to 

the sad day when their family must file for honorable burial in a veterans' cemetery. Atler 

several years and over a billion dollars working towards the Integrated Electronic Healthcare 

Record (!EHR) last year VA and DOD announced they could not come to a reasonable 

agreement on a single record, and would pursue systems on their own, that would be 

compatible with one another. 

Our service members and our veterans deserve better and Congress must stop the bureaucratic 

bickering between the two departments. Hold VA and DOD to their commitments. and make 

clear to them that if they do not honor these commitments. the funds to continue their path of 

folly will not be continued. 

The project is simple. From the day a serviccmember takes their oath of office and passes their 

initial physical examination to enter military service the VA must be aware of that service 

member's hcalthcare record because, at some point in time -- whether it be the near future or 

thirty years later -- DOD and VA both know that new incoming servicemember will be leaving 

military service and entering the VA system and will have earned a certain amount of earned 

benefits, including, perhaps. certain healthcare benefits. A single system, or instant transmission 

oftbe information could cut substantial time off of the processing of most veterans' claims. The 

system must include National Guard and Reserve records, which often present addition 

challenges and delays. 

The American Legion is to this committee tor its attention to this and other issues 

veterans struggle It is vitally important that Congress maintains their locus on 

these issues, even as the size of the military is slashed and our veterans are returned from wars 

overseas. When the wars are no longer front page news. the wounds our veterans suf1er will still 

remain. They cannot suffer those wounds in silence, lost and torgotten from the attention of the 

government they honorably served. The voice of The American Legion and the voice of every 

veteran across America is vital in nnderstanding the struggles they must overcome for basic 

compensation for the injuries and illnesses they incurred defending this nation. 

Questions concerning this testimony can be directed to The American Legion Legislative 

Division (202) 861-2700. or =:o=~=-:~c.:=.~"""" 

4 American 

Adjudicators 

" c 13 

Resolution No. !18 --Revision of Work-Rate Standards for Department of Veterans Affairs 

2012 
104 

ACCESS TO JUSTICE FOR THOSE WHO SERVE 

March 27, 2014 

Senator Blumenthal Opening Statement 

General Introduction 

Thank you for joining ~s today for a hearing on what I believe is an 

absolutely crucial question: whether the rights of our servicemembers are 

adequately protected. I want to thank Ranking Member Hatch for helping to make 

this hearing happen. And of course I want to thank all of the witnesses. 

This will be my last hearing as the chair of the Subcommittee on Oversight, 

Federal Rights, and Agency Action. Over the course of this Congress, we have 

been able to explore a variety of issues related to the federal government's duty to 

protect its citizens, and I am proud of what we have accomplished. I want to 

particularly thank Senator Leahy, chairman of the Judiciary Committee, for 

working with me to make this new subcommittee a success. 

The Scope of the Problem 

Today's hearing is the product of a proud tradition and a disappointing 

reality. The proud tradition is Congress's bipartisan tradition of passing legislation 

to protect our servicemembers. The disappointing reality is that too many of the 

rights enshrined by Congress are effectively dead letter in the face of structural and 

procedural barriers to enforcement. When servicemembers cannot find lawyers to 

take their cases, cannot get a ruling on the merits even when they make it to couti, 

1 
105 

and cannot receive adequate compensation even when they win-in that case the 

laws on the books are not the strong protections they should be. 

USERRA 

The Unifonned Services Employment and Reemployment Rights Act is a 

classic example. USERRA-as it is called--passed the House and the Senate by 

voice vote. It stands for the simple proposition that American workers should not 

be discriminated against because they have chosen to serve in their country's 

armed forces. It is hard to imagine a less controversial principle. 

Yet USERRA has some of the weakest remedies in any comparable statute. 

A member of the National Guard or Reserve who is fired because they get 

deployed stands to win only back pay, reinstatement, and maybe some 

compensation for lost health care or pension benefits. If they experience prolonged 

unemployment-if they lose their home, their car, their credit-a court award will 

not even come close to making them whole. Further, because servicemembers are 

required to mitigate damages, awards are frequently far less than a 

servicemember's lost wages. Few private attorneys will take a case where the 

award after a long and difficult case is likely to be less than $20,000 and may be 

even less than $10,000. 

And because employers know that they face such a small punishment when 

they violate USERRA, they have little incentive to comply with the law. The worst 

2 
106 

that happens if they lose is that they have to pay the money they were always 

required to pay-so why not roll the dice and see if you can get away with it. Even 

when a servicemember can show that an employer willfully violated the law-a 

very difficult thing to show-that servicemember can only expect to collect double 

whatever damages they would otherwise get. In many cases, even this amount will 

not fully compensate the servicemember; and it rarely provides an adequate 

deterrent for the employer. 

USERRA stands in stark contrast to other workplace protection statutes. An 

employee tired in violation of Title VII stands to get full compensation for any 

harm that results. They can also collect punitive damages. ln other words, most 

discriminatory actions by employers come with large and powerful penalties. But 

if an employer discriminates against a serviccmcmber, the penalties are negligible. 

USERRA is also unusual in other ways. If the Justice Department finds a 

pattem or practice of discrimination under Title VII, they can file suit to vindicate 

everybody who has been harmed. lfthey find a pattern or practice of 

discrimination against serviccmembers, they are powerless. If a state government 

employer violates Title VII, they are fully liable. If the same employer 

discriminates against servicemembers, they are not. At every step, servicemembers 

have weaker protections than almost any other category oflitigants. 

The Financial Marketplace 

3 
107 

Servicemembers also face special difficulties in the financial marketplace. 

Servicemembers are taught to repay their debts, no matter how onerous. The 

Uniform Code of Military Justice tells them that failure to repay a debt is a 

punishable offense. And many servicemembers know that an unpaid debt could 

lead to a lost security clearance and, in tum, a lost job. Unscmpulous lenders know 

that where a normal consumer might refuse to pay a predatory loan or seek legal 

assistance to have the loan cancelled, a servicemember may not. 

For all these reasons, servicemembers are uniquely vulnerable to abusive 

lending practices. More importantly-when abusive practices are targeted at 

servicemembers, we are all worse off. A soldier who is afraid that he will lose his 

house cannot focus on his mission. A soldier whose family is being harassed by 

debt collectors is less able to keep the rest of us safe. 

Congress has repeatedly acted to protect servieemembers, and it has done so 

in a bipartisan fashion. Like USERRA, the Servicemembers Civil Relief Actwhich protects servicemembers from foreclosure and default judgments while they 

serve-passed the Senate by voice vote. The House passed the bill 425 to 0. The 

Military Lending Act-better known as the Talent Amendment-was a bipartisan 

proposal that was rolled into the National Defense Authorization Act without 

controversy. It was intended to protect servieemembers from loan shark interest 

rates of more than 36 percent. 

4 
108 

Yet while these statutes have made a tremendous difference, commonsense 

reforms are needed for them to live up to their goals. The Servicemembers Civil 

Relief Act-better known as the SCRA f"Sick-Ruh"]-can be waived by contract. 

As a result, the worst lenders can protect themselves from liability just by 

demanding that servicemembers give up their rights. The Military Lending Act 

suffers from an outdated implementing regulation that allows lenders to avoid the 

act's protections with small, cosmetic tweaks to their loans. 

And serviccmembers saddled with unfair loans too often tind that federal 

protections intended to protect them from debt collector harassment do not work. 

While it would be illegal for a third party debt collector to harass a servicemember 

by going to the servicemember's commanding officer, creditors can and do call 

commanding officers directly, sometimes scaring servicemembers into paying 

debts they don't even owe. I have called on the Consumer Financial Protection 

Bureau to help address this problem, and I hope that the Administration shares my 

view that servicemembers must be protected. 

Conclusion 

As I said at the beginning, Congress has done great work to protect 

servicemembers, and we have done it on a bipartisan basis. I hope that the effort to 

make these protections truly work for our men and women in uniform will also be 

5 
109 

bipartisan. I intend to listen hard today. and if there are legislative solutions needed 

I will work with my colleagues to get that done. 

With that, I want to again thank Senator Hatch for being here and to 

recognize him for a statement. 

6 
110 

Statement of Senator .Jeff Flake 

"Access to .Justice for Those Who Serve" 

Senator Committee on the .Judiciary 

Subcommittee on Oversight, Federal Rights, and Agency Action 

March 2014 

While I am pleased the Senate is focusing on our veterans today, I am disappointed more 

attention is not being paid to the failures of the Veterans Administration to provide veterans their 

medical services and benefits. Congress has a responsibility to address this problem since the 

administration is apparently failing to do so. 

For example, a recent CNN investigation revealed dozens of veterans with medical 

conditions are sutlering at the hands of the VA, while thousands more wait months to receive 

basic medical care. Sadly. reports indicate that more than 20 veterans have died or are dying of 

cancer ''because they had to wait too long for diagnosis or treatment" at a VA facility in South 

Carolina. In the Texas region, seven vets or their families were sent disclosures about adverse 

events and serious injuries sutlered because of delayed care. These are just a few examples of 

veterans nationwide who have suffered due to the failures of VA hospitals. 

Here is another startling statistic. In 2013, only 41 percent of new primary care 

appointments for our veterans were completed within 14 days of when the appointment was 

scheduled. In other words, 60 percent of all new appointments require veterans to wait more 

than two weeks to see the doctor. It is troubling to think that veterans are waiting more than 

fourteen days to receive an initial doctor's appointment. 

The V ctcrans Administration's processing of veterans· disability bene tit claims is 

troubling as well. According to a recent study, it takes an average of 3 76 days for the VA to 

process veterans' disability benefit claims. In Cleveland, Ohio, it takes an average of 464 days 

for the VA to process veterans' disability benefit claims. Approximately 34,000 veterans have 
111 

been waiting for a year or longer on requests for disability compensation. A March 2014 

analysis of the VA claims backlog found approximately 400,000 veterans are still waiting for 

their claims to be processed. This administration has seemingly done little to combat this 

problem. 

I believe that Congress has an obligation and duty to provide veterans with adequate 

healthcare and benefits. Unfortunately, too many veterans have to wait too long to receive their 

benefits. Towards a solution, I cosponsored an amendment to the Veterans Health and Benefits 

and Military Retirement Pay Restoration Act, which would have compelled the VA to process 

the backlog of claims. Although the amendment was not adopted, I believe Congress should first 

focus on e!Torts like mine to eliminate this backlog and ensure the federal government is 

providing veterans with the benefits they were promised and certainly deserve. 

2 
112 

QUESTIONS .FOR THE RECORD 

Senate Judiciary Committee 

·'Access to Justice for Those Who Serve" 

March 27.2014 

Senator Amy Klobuchar 

Question for Col. Paul Kantwill and Dwain Alexander, IL Esg 

I know that ensuring our service members have all the necessary information about their 

rights is very important for making sure that they get the protections in the Uniformed 

Services Employment and Reemployment Rights Act and the Servicemembers Civil Relief 

Act. 

How can we improve our etiorts, so that those who serve are aware of these important 

consumer protections? 
113 

QUESTIONS FOR THE RECORD 

Senate Judiciary Committee 

·'Access to Justice for Those Who Serve" 

March 27, 2014 

Senator Amy Klobuchar 

Question for John S. Odom. Jr.. Mai. Gen. Andrew Davis. and Ian DePianque 

A number of federal agencies have a role in upholding the rights of our service members. 

!low can \Ve improve agency collaboration and coordination to ensure that our service 

members get the protections in the Uniformed Services Employment and Reemployment 

Rights Act and the Servicemembers Civil Relief Act? 
114 

Senate Judiciary Committee Hearing 

Subcommittee on Oversight, Federal Rights, and Agency Action Subcommittee on the 

"Access to Justice for those who Serve" 

Questions for the Record Submitted bv Senator AI Franken 

Questions for Major General Davis 

Question 1. I'd like to thank the Reserve Officers Association for its support of the Arbitration 

Fairness Act. Can you share with this Committee the ROA's reasons for supporting the bill? 

Question 2. The Minneapolis Star Tribune recently ran an editorial in which it said: "There are 

already solid laws on the books to protect the financial security of military men and women, 

Provisions under the Servicemembers Civil Relief Act include a cap on interest rates, stays on 

proceedings and protections from evictions, The Military Lending Act guards against loans 

notorious for high interest rates. such as payday loans and auto title loans. The problem is that 

service members often are unaware of these safeguards." One of the reasons servicemembers are 

unaware of their rights is that we've basically gotten rid of class notice under Concepcion. What 

can Congress do to make sure servicemembers know about their rights under the laws we're 

discussing today? 
115 

Senate Judiciary Committee Hearing 

Subcommittee on Oversight, Federal Rights, and Agency Action Subcommittee on the 

"Access to Justice for those who Serve" 

Questions for the Record Submitted by Senator AI Franken 

Questions for Colonel Odom 

In your written testimony, you wrote, '"The prevalence of forced arbitration agreements 

embedded in virtually every mortgage instrument and credit card agreement has caused many of 

our scrvicemembers who have disputes with creditors to be denied access to a federal or state 

court for resolution of their complaint." You also pointed out that a lot of servicemcmbcrs will 

abandon their cases instead of incurring the filing fees and costs associated with arbitration. 

Could you elaborate on your recommendation that we eliminate pre-dispute arbitration for SCRA 

claims'' 
116 

"Access to Justice for Those Who Serve" 

March 271

h, 2014 

Senator Blumenthal 

Questions for the Record 

Does the American Legion support providing servicemembers with SCRA 

protections for student loans and home loans? 

For Ian DePlanque 

Mr. DePlanque, when the American Legion presented its 2014legislative agenda 

to the Senate Veterans Affairs Committee, it argued quite powerfully that the 

Servicemembers Civil Relief Act should protect servicemembers from excessive 

student loan interest rates. In his testimony for today's hearing, Mr. Odom has 

pointed out a loophole in SCRA [Siek-Ruh] protections in this area. CuiTently, if a 

servicemember refinances his student loans during his period of service, he loses 

SCRA protections against exorbitant interest rates. Senator Durbin has proposed 

closing this loophole, and I believe Mr. Odom has made a compelling case for that 

reform. 

1. Does that strike you as the kind of reform the American Legion would 

support as part of its effort to protect servicemembers from excessive 

student debt? 

The American Legion has also been a leader in trying to reduce homelessness 

among servicemembers and veterans. Mr. Odom points out that scrvicemembers 
117 

who refinance home loans also lose SCRA protections designed to protect 

servicemembers from losing their homes. 

l. Would closing this loophole, so that serviccmcmbers retain SCRA 

protections against foreclosure during their period of service, help 

reduce homelessness among servicemembers and veterans? 

2. Is such a reform consistent with the American Legion's goals? 
118 

CHARRTS No.: SJC-01-001 

Hearing Date: March 27.2014 

Committee: S.lC 

Member: Senator Klobuchar 

Witness: COL Kantwill 

Mr. Dwain Alexander II 

Question: #l 

Consumer Protections 

Question: I know that ensuring our service members have all the necessary information about 

their rights is very important for making sure that they get the protections in the Uniformed 

Services Employment and Reemployment Rights Act and the Service members Civil Relief Act. 

How can we improve our effmis. so that those who serve are aware of these impmiant consumer 

protections? 

Answer: 

The Depa1iment of Defense has developed forward-leaning programs to ensure that Service 

members know about the benefits and protections of the SCRA and USERRA. This educational 

process involves coordinated and overlapping efforts to alert the Service members and their 

commanders of these benefits and protections. and then to ensure that the proper counselors are 

there to help individuals fully understand the nuances of the relevant laws and receive their full 

protections under the law. 

First, it is vital that we actively listen to Service members and their families. taking stock of what 

they have to say. in order that we can assess what we are doing and how we can improve. What 

products are they using? How frequently arc they using them') Why are they using them? What 

is their assessment of their own financial situation? What help do they need? In order to do this, 

the DoD has commissioned three surveys of DoD personnel: (I) members of our force; (2) the 

"boots on the ground"" financial counselors; and (3), legal assistance attorneys. consumer 

watchdogs and advocacy groups that help us look out for military families. 

Secondly. based upon what we hear and what these surveys tell us. we will then appropriately 

tailor the education and training of our Total Force. Specifically. the Depmiment's efforts to 

educate Service members and their families are centered at our installation readiness facilities. 

pre-deployment and re-deployment process facilities, and reserve component mobilization and 

demobilization processing centers. Reserve component processing centers. in particular. have 

been of critical importance because two oft he most important economic protections and 

benefits-the 6% interest rate cap and the extension of foreclosure protections-apply only to 

pre-service obligations and thus predominately affect Reservists and National Guardsmen called 

to active duty from the civilian workforce. 

Likewise. USERRA protects the job rights of individuals who voluntarily or involuntarily leave 

civilian jobs to perform service in the uniformed services. As a result, SCRA, USERRA, and 

related financial training at pre-deployment and re-deployment processing facilities is more 
119 

detailed and helpful than ever before. To the extent that we can, it is the Department's goal to 

get out in front of these issues through education. counseling. and offering a range of programs. 

as well as individual counseling, that better meet our Service members' needs. 

Regarding USERRA, the Employer Suppo1i of the Guard and Reserve (ESGR) is a DoD office 

v\hich helps inform and educate Service members and their civilian employers about their rights 

and responsibilities under the Act. ESGR serves as a neutral. free resource for employers and 

Service members. Furthermore. ESGR's Ombudsman Services Program provides information 

and mediation on issues related to USERRA. The ESGR Customer Service Center is available to 

answer USERRA questions. Specially trained ESGR Ombudsmen are also available to assist 

members of the Guard and Reserve in resolving disputes with their civilian employers related to 

service in the uniformed services through neutral and impartial mediation throughout the U.S. 

and U.S. territories. In Fiscal Year (FY) 2013. more than 4.700 ESGR volunteers donated 

230.850 hours of time assisting service members. recognizing employers and helping resolve 

employment and reemployment issues. 

Last but not least. these results are reinforced through sustained. proactive engagement between 

the DoD and other government agencies. as well as with the financial industry. The Department 

is fortunate to enjoy a very cooperative working relationship with other Federal agencies relating 

to consumer law issues-the Department of Justice. the Consumer Financial Protection Bureau 

(CFPB). the CFPB's Oftlcc of Service member's Affairs. and the Office of the Comptroller of 

the Currency, to name a few. These cooperative working relationships enable swift and effective 

Federal enforcement actions brought by our colleagues. as well as critical compliance and 

enforcement efforts at State and local compliance and enforcement effo1is. Our overarching goal 

is to provide comprehensive support for our Service members and their loved ones. ensuring a 

\veil-informed. financially-secure. and resilient force. 
120 

QUESTIONS FOR THE RECORD 

Senate Judiciary Committee 

'"Access to Justice for Those Who Serve .. 

March 27,2014 

Senator Amy Klobuchar 

Question for JohnS. Odom. Jr., Maj. Gen. Andrew Davis. and Jan DePianyue 

A number of federal agencies have a role in upholding the rights of our service members. 

How can we improve agency collaboration and coordination to ensure that our service 

members get the protections in the Uniformed Services Employment and Reemployment 

Rights Act and the Servicemembers Civil Relief Act? 

Response of Coi.John S. Odom, Jr. 

My primary area of practice is SCRA-rclated. so I will confine my response to that pot1ion of 

the question. 

Agency collaboration and coordination are a starting point but cet1ainly are not the complete 

solution. No level of coordination between agencies will solve the problems our 

servicemembers face when bad actors force their claims into mandatory, pre-dispute 

arbitration. When that happens and the servicemembers discover how much out-of-pocket 

expense is involved merely to invoke and pursue mandatory arbitration over what might be 

an amount that is less than the cost to arbitrate the matter, they arc just going to abandon all 

effm1s to enforce their SCRA rights. That is yet another reason that mandatory pre-dispute 

arbitration clauses should be disallowed under the SCRA. 

From my perspective, the effot1s of the DoJ, CFPB and banking regulators to investigate and 

bring to justice violators of serviccmcmbers' SCRA rights have resulted in some 

monumentally large settlements, but I have continuing questions about how much of that 

money actually percolates down to the troops' pockets. As a private attorney, I am still a big 

believer in the rights of an individual to seck justice fi·orn ajury in a trial. I know that the 

settlements I have obtained for my clients account for significantly larger damage payments 

than those negotiated in the various OCC and DoJ settlements, but that's probably just in the 

nature of working one-on-one as opposed to working an issue from an industry-wide 

standpoint. 

There will always be a need for close collaboration between the DoD and the various 

agencies that seek to enforce SCRA rights on behalf of servicemembers (Do.L CFPB. FTC. 

OCC and others) to make the agencies outside of DoD aware of trends in SCRA violations 

that legal assistance officers see on a daily basis. Armed Forces legal assistance attorneys 

should remain vigilant to help spot new trends in SCRA violations and to report those 

through appropriate channels so that federal enforcement agencies can be made aware of 

what is happening to serviccmembers in the field and can take action to protect the rights of 

those servicemembers. 
121 

Senate ,Judiciary Committee Hearing 

Subcommittee on Oversight, Federal Rights, and Agency Action Subcommittee on the 

"Access to Justice for those who Serve" 

Questions for the Record Submitted by Senator AI Franken 

Questions for Colonel Odom 

In your written testimony. you wrote. ''The prevalence of forced arbitration agreements 

embedded in vi1iually every mot1gage instrument and credit card agreement has caused many of 

our servicemembcrs who have disputes with creditors to be denied access to a federal or state 

court for resolution of their complaint.'' You also pointed out that a lot of servicemembers will 

abandon their cases instead of incurring the filing fees and costs associated with arbitration. 

Could you elaborate on your recommendation that we eliminate pre-dispute arbitration for SCRA 

claims? 

Response of Colonel John S. Odom, Jr. 

None of the protections of the SCRA apply to anyone until they either enter the Armed Forces 

or, in the case of certain members of the Guard and Reserve, receive their orders notifying them 

of impending mobilization to active duty. For example, the typical 19-year old college student 

who receives a credit card application in the mail which contains a mandatory arbitration clause 

embedded in the agreement in very small type may have absolutely no clue that several years 

later, he or she may enlist in the Armed Forces. At the point in time when they receive the credit 

card or the card application application (many of which provide that by using the card for the 

tirst time, the user agrees to all the terms of a multi-page contract), they are not protected by the 

SCRA but as soon as they go into the Armed Forces they are protected by the Act It simply is 

not fair to deny those persons the full range of protections found in the SCRA- the most 

important of which may well be the right to bring an action against violators in an appropriate 

court and seek justice from a court or a jury- because of a pre-dispute arbitration clause. 

More impot1antly, as I pointed out in my written testimony, the provisions of the SCRA simply 

do not apply to private arbitration proceedings. Suppose Sergeant Snuffy's rights are violated by 

a creditor under a contractual agreement containing a pre-dispute mandatory arbitration clause. 

Assume further that Sergeant SnuiTy invokes the arbitration clause. pays the $450 filing fcc with 

the American i\rbitration Association. nominates an arbitrator and pays that person several 

thousand dollars as a deposit to satisfy a condition for the designated arbitrator accepting the 

appointment. Then before the scheduled date for the arbitration the Army dispatches Sergeant 

Snu!Ty somewhere on the globe to go fight terrorists and he cannot attend the arbitration hearing. 

Under that scenario. the SCRA cannot be invoked to bring about a mandatory stay of the 

proceedings until such time as the serviccmembcr can be present to participate. The obvious 

lack of fundamental faimess that such a realistic hypothet raises is sufficient by itself to justify 

my strong opposition to pre-dispute mandatory arbitration clauses when the contract 

subsequently becomes subject to the SCRA. 
122 

The proposal that if. once the dispute has arisen. the parties mutually agree to arbitration seems 

to be imminently fair. Otherwise, I am unalterably opposed to pre-dispute mandatory arbitration 

clauses. 
123 

Statement for the Record on the Dcpmiment of Veterans Affairs Backlog 

Senator Robert P. Casey, Jr. 

The Department of Veterans Affairs (VA) is currently facing a disability claims backlog that has 

been a persistent and inexcusable problem. This backlog has been an issue for over twenty years 

as spikes in demands outpaced the V A's capacity. It is our duty to protect those who have 

protected this country. Our Nation's heroes shouldn't have to wait for months or more for their 

claims to be addressed. It is unacceptable that some veterans in Pennsylvania have waited a year 

or longer to get their disability claims processed. We must honor the valor of the men and 

women who served our country by acting to address this recurring issue. Our gratitude upon 

their return home must be ret1ected in our commitment to helping all those who have served, 

especially those who have suffered injuries of war. We currently have the resources to assist our 

veterans, however. too often we hear about the delay in the disability claims process. This is 

unacceptable. 

W c need a commonsense. bipartisan approach to bring all parties together to research and try and 

solve this national problem. That is why in July of2013: Senator Heller and I established the 

bipartisan VA Backlog Working Group. Through this Working Group, we met with a variety of 

stakeholders to take a deeper look at this issue. 

There are many things that can be done to assist the VA in addressing this issue. Secretary 

Shinscki and the employees at the VA have done an excellent job trying to bring down the 

backlog but we need to ensure they continue this progress. We must work to bring the VA 

benefits system into a 2 P' century delivery system. 

By rctining management practices in the Veterans AfTairs Regional Ot1ices and modifying 

current procedures, the VA can serve our veterans more quickly. We need to ensure that the VA 

has the adequate resources needed to implement these changes. In order to accomplish these 

goals, a greater demand for cooperation from JCderal agencies is required to obtain the necessary 

information and cooperation is needed from the VBA employees to quickly process information. 

While the VA has done many commendable things to improve this backlog, we must continue to 

help them to serve our country's veterans as quickly as possible. My legislation with' Senator 

Heller, will help to solve this problem. The 21" Century Veterans Benefits Delivery Act will 

ensure that all parts of this process, from the vcterm1 to the government agencies, cooperate in 

providing benefits to the veterans who have earned them. Veterans deserve a comprehensive and 

permanent solution to this problem, and our hope is that this legislation will ensure we reach that 

goal. 
124 

Statement o.lSenator Dean Heller before the 

Senate Judiciary Committee's 

Oversight, Federal Rights, and Agen'y Action Subcommittee 

on "Access to Justice for Those Who Serve" 

Thursday, 1Harch 27, 2014 

Thank you Chainmm Blumenthal and Ranking 'vkmbcr flatch for holding this hearing today. 

One of our roles and responsibilities as \1cmbers of Congress is exerting ov·crsight over federal 

agencies. An agency that I have focused on as a member of the Sen;Jte Veterans· Affairs 

Committee has been the Department of Veterans Affairs. and specifically. this agency's inability 

to process Veterans· claims in a timely mannt>r. 

This is an issue that impacts hundreds of thousands of our nation's V dcrans, and I hm·c been 

pleased to work with a bipartisan group of my Senate colkagucs--Scnators Casey. 'vloran, 

Hcinrich. \'itter. and Tester-to address this problem. 

In 2009, th0 Vi\ committed to Veterans that they would receive a decision on their disability 

claim within 125 days; yet. nearly 400.000 Veterans nationwide, including 4,200 in my home 

state of0kvada, are waiting longer than the VA 's 125-day deadline for their claim to be 

completed. 

While it is easy to point lingers and place blame. I believe it is time for Congress tc> further 

engage on this issue beyond just oversight of the Vi\ 's efforts. 

S..:ven months ago. Senator Casey (D-P J\) and I established a VA Backlog Working Group to 

analyze the current problems JilCing the Vi\ so that >vc could generate solutions that would help 

the VA reduce the claims backlog. 

\Vhat became clear is that the backlog of claims is not new; it bas been an issue plaguing the VA 

for two decades. Despite recommendations from numerous rcpm'ts ti·om the VA 's Inspector 

General. the ()overnmcnt Accountability Oftice. and Blue Ribbon Commissi0ns. the VA 

continues to face this problem because it is operating under a 1945 system in the 21 ''century. 

Unless the claims process is overhauled. the VA v~ill continue to see surges in claims that result 

in a backlog. 

That is why I. along with Senators Casey, l\·loran, Heinrich, Vitter, and Tester, introduced the 

bipartisan 21 ''Century Veterans Benefits Delivery Act (S. 2091) and the VA Backlog Working 
125 

Group \,larch 2014 Report to provid~ a full picture of the claims process and propose solutions to 

help the VA reach its goJl of eliminating the backlog by 2015. 

The 2 l" Ccnlllry V ctenms Bendits Deli\ cry Act addresses three aspects of the claims process: 

claims submission, VA Regional Office (VARO) practices, and federal agency re,;ponscs to VA 

requests. 

First, V cterans must be given every tool to understand the claims process and what they can do 

to provide information that the V ctcrans Bcnclits :\dministration ( VBA) needs by law to process 

the claim eniciently and accurately. To accomplish this, the legislation proposes improving 

.:ducation of the daims process and claims submission: increasing access to V ctcrans Service 

Organizations tn assist the Veteran; and inccntivizing and encouraging Veterans to submit fully 

de,·elupcd claims. 

If Veterans are fi.llly inf(Jrmed. they will be better equipped to provide the necessary inl(mnation 

that will allow the VA to mo\'c the claim through the system Jitster. 

Second, the VAROs must implement eflicicnt processes so that claims can be quickly processed, 

panicularly as the VBA transitions to an electronic claims processing environment. I believe the 

workforce at caci1 VARO is capable of tackling this enormous task, provided they ha\'C the 

resources and guiJance that is consistent throughout the VBA. 

Improvements to tht: current practices include analyzing consistency and accountability of 

VARO management; implementing process changes that allow claims to move quickly through 

an electronic system: and impro\·ing the transparency of the size anJ scope of the current 

backlog. 

Third, and lastly, other federal agencies must make VA records request a priority. Files at other 

dcpat1mcnts \vi thin the VA or at outside agencies are targeted as a reason for delays in the claims 

process. The V ;\ is trying to becon1e a 21 sr Century hcncfits dcli\'cry service for our Veterans. 

but cannot award claims when they bck e\'idence. In order to obtain this evidence, the VA and 

outside agencies must establish efficient processes for transferring records and set deadlines for 

such transt'crs. as well as ensure VB:\ employees arc proc.:ssing this information it rccdYes in a 

timely fashion. 

While there is no sil\'er bullet that is going to lix this problem overnight, implementing these 

bipartisan, common sense proposals will help improve the current system and reduce the number 

of days it takes th..: VA to process claims accurately. 
126 

As this Subcommittee considers Congressional accountability over and action by JCdcral 

agencies. ! hope you will also consider the role that Congress plays in assisting the VA in 

reaching a goal that I believe is shared by every Member of Congress, the VA. the Veterans 

Service Organizations. and Veterans. 

Thank you again Chairman Blumenthal and Ranking Member I latch. I look forward to working 

with you and the rest of my colleagues to address this issue critical to America's Veterans 11ho 

volunteered to serve and sacrifice to protect our freedom. 
127 

The President 

The White House 

1600 Pennsylvania Avenue, NW 

Washington, DC 20500 

Dear Mr. President: 

April 29, 2013 

We are writing to request that you take direct action and involvement in ending the current 

Department of Veterans Affairs (VA) disability claims backlog. 

After a decade of war, and despite the V A's efforts to modernize, more than 600,000 veterans 

are still stuck in the V A's disability claims backlog. While the average wait time for first time 

disability claims currently ranges between 316 and 327 days, veterans in certain parts of the 

country are waiting even longer- 681 days in Reno, 642 in New York, 625 in Pittsburgh, 619 in 

Los Angeles, 612 in Indianapolis, 586 in Houston, and 510 in Philadelphia. In the worst cases, 

veterans have waited and continue to wait 800 days, 900 days, and even more than I 000 days for 

a disability claims decision from the VA. 

In the last tour years, the number of claims pending for over a year has grown by over 2000%, 

despite a 40% increase in the VA's budget. As a reminder, during this same time period, 

Congress has given VA everything it has asked tor in terms of more funding and more 

employees; however, this has not eliminated the backlog of claims. Solving this problem is 

critical tor veterans of all generations. We need direct and public involvement from you to 

establish a clear plan to end the backlog once and for all. 

This country must be grateful for the safe homecoming of every single man and woman who has 

served in ham1 'sway. Our joy at their return must be reflected in our commitment to helping all 

who have served. We respectfully ask you and your administration to find a solution that 

ensures that no veterans are stuck in the VA backlog. 

Thank you for your consideration of this matter. 
128 
129 
130 
131 

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132 

IWruMOAA 

Fil1:ary Officers Assoclation,•t America 

STATEMENT FOR THE RECORD 

MILITARY OFFICERS ASSOCIATION OF AMERICA 

on 

"Access to Justice for Those Who Serve" 

USERRA and SCRA Improvements 

2d Session, 113111 Congress 

Subcommittee on Oversight, Federal Rights, and Agency Action 

Senate Judiciary Committee 

March 27, 2014 

One Powerful Voice. 
133 

CHAIRMAN BLUMENTHAL, RANKING :\1EMBER HATCH, Members of tbe 

Subcommittee, the Military Ollicers Association of America (MOAA), is pleased to present its 

views on protecting reemployment and other rights under the Uniformed Services Employment 

and Reemployment Rights Act (USERRA) and the Servicemembers Civil Relief Act (SCRA). 

~ational Guard and Reserve service men and women who have served a qualifying period of 

active duty are unique in our Armed Forces community in that after being called to a period of 

active Federal service under Title 10 orders they become veterans while continuing to serve in 

active status in the Reserves. 

These dual-status veterans face uniqne challenges associated with their service including 

multiple re-entries into civilian life. employment challenges and reduced civilian career potential 

dne to workplace absences. 

893,500 Guard and Reserve members (as of 11 March 2014). have served on operational active 

duty since September 10, 200 L more than 300,000 have served on multiple tours. Sustained 

reliance on citizen-warriors over the past 12+ years has no precedent in American history. 

Reliance on the "operational reserve., is likely to continue after the Afghanistan conflict. 

Operational Reserve Policy 

Reliance on National Guard and Reserve (G-R) forces for operational miSSions evolved 

gradually after the Vietnam war. Major policy changes led the way: first, a ''total force policy'' 

was established (1972) to npgrade the organization, training, equipment and integration of the GRin the nation's Armed Forces; second, the All-Volunteer Force replaced conscription. Then, in 

the mid-1970s, Congress adopted a provision that gave the Commander in Chief authority to 

activate the G-R on his own authority. 

The activation of approximately 250.000 members of the G-R for Gulf War I in 1991 was the 

first large-scale "live fire" event that tested the total force policy. Until then. there was 

considerable political and public uncc11ainty that the President would actually invoke his 

authority to call up the reserve forces. 

After Gulf War I. G-R call-ups steadily increased in the mid-late 1990s primarily as a result of 

peacekeeping operations in Kosovo and Bosnia. 

Terrorist attacks on the homeland on Sept. 11. 2001 resulted in the largest sustained activation of 

the G-R since World War II. Senior civilian and military defense leaders began using the term 

"operational reserve" to signal a de-facto change in national security policy for the employment 

of reserve forces in the operating forces to conduct missions alongside active duty formations in 

Iraq, Afghanistan and elsewhere. 

Secretary of Defense Robert Gates formally announced the operational reserve policy on January 

19, 2007 in a memorandum. Utilization of the Total Force. ". . the planning objective for 

involuntary mobilization of Guard/Reserve units will remain one year mobilized to five years 

demobilized ratio.·· 

2 
134 

The operational policy means that G-R members must be available for activation for extended 

active duty service multiple times over a 20-year or longer career. 

Usc of the Operational Reserve for Non-Emergency Missions 

The National Defense Authorization Act (NDAA) f(Jr FY 2012 (P.L. 112-81) established even 

greater !1exibility lor accessing the G-R for operational missions. The statute authorizes the callup of up to 60,000 G-R members fclr not more than 365 ··consecutive days'' active duty to 

perform ''pre-planned'' and budgeted active duty missions other than emergency and 

humanitarian operations. The missions must be funded and approved for a fiscal year or multiple 

fiscal years in the services· budget planning materials. 

The authority means that pre-planned and budgeted call-ups of the G-R can be made by the 

Service Secretaries. a policy that was unimaginable just a few years ago. 

The recent report of the Commission on the Air Force recommends the new authority be 

considered by the Air Force in planning future mission allocation tor the Air National Guard and 

Air Force Reserve. 

With the accelerated drawdown of the armed forces due to Sequestration and withdrawal from 

Afghanistan, the G-R soon will constitute more than 50% of the nation's military capability. 

All of these factors place enormous demands on the National Guard and Reserve. employers, 

family members and communities in ways not envisioned at the dawn of the all-volunteer force I 

totalf()fcc era forty years ago. 

Ever greater reliance on the Reserves means that it will be critical for the Congress to ensure that 

reservists' re-employment rights after call-ups are robust, transparent to all stakeholders and 

vigorously enforced. Similarly, personal financial protections need to be updated to rel1ect the 

sea-change in the usc of the G-Rin our armed forces. 

USERRA 

MOAA has long endorsed continuous review of the USERRA to ensure it meets the needs of our 

nation's returning citizen-warriors after completing active duty service. 

S. 944 and S. 1982, pending Veterans Omnibus Benefits bills, include provisions to improve 

reemployment rights. It's our understanding that the provisions are largely based on 

recommendations from the Justice Department on the Act 

MOAA strongly supports the USERRA provisions inS. 944 and S. 1982: 

• Allow tile United States to serve as a named plaintiff in all suits filed by the Attorney 

General, while preserving the right of the aggrieved person to intervene in suclr suits, 

or to bring their own suits where the Attorney General has declined to file suit. It 

3 
135 

would also allow the Attorney General to investigate and file suit to challenge a pattern 

or practice in violation of tlte Uniformed Services Employment and Reemployment 

Rights Act (USERRA) 

• Allow for the suspension and debarment of federal contractors that repeatedly violate 

the rights of members of the uniformed services provided for under USERRA 

• provide the Special Counsel with authority to subpoena attendance, testimony, and 

documentsfromfederal employees and federal executive agencies in order to carry out 

investigations related to USERRA 

• Authorize the Attorney General to issue civil investigative demands in investigations 

under USERRA. It would not include the authority to compel oral testimony or sworn 

answers to interrogatories 

MOAA also supports making workplace arbitration agreements unenforceable in disputes 

arising under the statute. 

Servicemembers Civil Relief Act (SCRA) 

Operational reserve policies also point to the need to ensure that financial and legal protections 

are rock solid for 0-R members called to active duty service. 

MOAA recommends the Subcommittee endorse legislation that would impose 

ln letter 10 the on S. !999. 

the 

1999. the 

introduced h> 

"This important legislation would simply guarantee that our military servicemembers can enforce 

the rights already granted to them. Their mission can easily be jeopardized when their duties are 

interrupted with financial burdens back home in cases where companies take action against 

servicemember contracts due to forced arbitration clauses. 

"Many of our servicemembers have been unable to enforce their SCRA rights due to the 

increased use of forced arbitration clauses buried in the fine print of all types of contracts, 

including mortgage origination documents, automobile leases, and student loans. These clauses 

eliminate access to the courts that would protect the servicemember and instead funnel all claims 

against those who are deployed into private, costly arbitration systems set up by the same 

businesses that hope to bypass the law in the first place. 

"Congress has already passed laws to ban forced arbitration for disputes brought by auto dealers; 

certainly our nation's servicemembers should be afforded the same protections on other types of 

contracts. It's time Congress enhanced SCRA protections for our brave men and women who 

4 
136 

commit their lives to defending our country'' (Military Coalition letter re: S. 1999. 

Serviccmembcrs Civil Relief Act Protections Act of2014, 24 February 2014). 

A 2006 Department of Defense report concluded: 

"Service members should maintain full legal recourse against unscrupulous lenders. Loan 

contracts to Service members should not include mandatory arbitration clauses or onerous notice 

provisions, and should not require the Service member to waive his or her right of recourse, such 

as the right to participate in a plaintitTclass. Waiver isn't a matter of 'choice' in take-it-or-leaveit contracts of adhesion." (Department of Defense. 2006). 

Coi1clusion 

MOAA is grateful to the Members of the Subcommittee for your leadership in suppot1ing our veterans 

and their tlunilies who have "borne the battle'' in defense of the nation. 

5 
137 

NEL·········A·· ~i ~; ' 

Netionu! ErnpbymE->ttt Luwyers As~O<iation 

FOR IMMEDIATE RELEASE: MARCH 27,2014 

CONTACT: Julie M. Strandlie 

Legislative & Public Policy Director 

(202) 898-2880 x 115; jstrandlie@nelahq.org 

The National Employment Lawyers Association 

Urges Congress To Reform USERRA And The Tax Code 

To Protect Servicemembers' Employment Rights 

(Washington, DC) - Today, the U.S. Senate Committee on the Judiciary, Subcommittee on Oversight, 

Federal Rights And Agency Action held a hearing to examine whether current laws are protecting 

"Access To Justice For Those Who Serve." Subcommittee Chair Richard Blumenthal (D-CT) presided 

at the hearing. 

NELA Legislative & Public Policy Director Julie M. Strandlie stated, "NELA commends the 

Subcommittee for convening this hearing. The Department of Defense increasingly relies on National 

Guard and Reserve forces for operational missions around the world. Since September 11, 2001, for 

example, nearly 900,000 reservists have been called up to Federal active duty for such missions and 

more than 300,000 have served on multiple call-ups. It's critical that the laws that protect National 

Guard and Reservists' civilian jobs are strengthened." 

NELA submitted testimony for the record, prepared by NELA member Kathryn S. Piscitelli, urging 

Congress to reform the Uniformed Services Employment and Reemployment Rights Act (USERRA) 

and the Internal Revenue Code to ensure that servicemembers are treated fairly by both their 

employers and the Internal Revenue Service. USERRA ensures veterans and servicemembers that 

their jobs will not be jeopardized by their military service. 

Among these reforms, NELA and its coalition partners strongly endorse two bipartisan bills, the 

Servicemember Employment Protection Act of 2014, soon to be reintroduced by Senators Mark 

Pryor (D-AR) and Lisa Murkowski (R-AK) and the Civil Justice Tax Fairness Act (CJTFA, S. 

1224/H.R. 2509), sponsored by Senators Ben Cardin (D-MD) and Susan Collins (R-ME). The 

Pryor/Murkowski legislation would ban forced arbitration of USERRA claims and provide 

servicemembers with additional Family and Medical Leave Act benefits. The CJTFA would end unfair 

taxation of settlements or awards received by individuals in employment cases brought under civil 

rights and worker protection laws, including USERRA. 

NELA Executive Director Terisa E. Chaw added, "We, as lawyers and as Americans, must do all we 

can to help servicemembers who have suffered violations of their employment rights by improving 

USERRA's enforcement and remedial provisions. NELA, our members, and our Affiliates are honored 

to serve as advocates for servicemembers, and we are pleased to have the opportunity to do so in 

partnership with the Reserve Officers Association and other organizations that support our nation's 

military and their families." 

### 

The National Employment Lawyers Association advances employee rights and serves lawyers who advocate for 

equality and justice in the American workplace. NELA provides assistance and support to lawyers in protecting 

the rights of employees against the greater resources of their employers and the defense bar. It is the country's 

largest professional organization exclusively comprised of lawyers who represent individual employees in cases 

involving employment discrimination and other employment-related matters. NELA and its 69 circuit, state, and 

local affiliates have more than 3,000 members around the country. 

National Office • 417 Montgomery Street, Fourth Floor • San Francisco, California • 94104 • TEL 415.296.7629 

Washington DC Office • 1828 L Street, NW, Suite 600 • Washington DC • 20036 • TEL 202.898.2880 

email: nelahq@nelahq.org • www.nela.org • FAX 866.593.7521 
138 

STATEMENT OF KATHRYN S. PISCITELLI 

Submitted On Behalf Of The 

NATIONAL EMPLOYMENT LAWYERS ASSOCIATION 

To The 

Committee On The Judiciary. 

Subcommittee On Oversight, Federal Rights And Agency Action 

United States Senate 

On The Subject Of 

ACCESS TO JUSTICE FOR THOSE WHO SERVE 

March 27, 2014 

Updated Apri/3, 2014 

National Office • 417 Montgomery Street, Fourth Floor • San Francisco, California • 94104 • TEL 415.296.7629 

Washington DC Office • 1828 L Street, NW, Suite 600 • Washington DC • 20036 • TEL 202.898.2880 

email: nelahq@nelahq.org • www.nela.org • FAX 866.593.7521 
139 

Chairman Blumenthal, Ranking Member Hatch, and Members of the Subcommittee: 

My name is Kathryn Piscitelli. I am an attorney in private practice in Orlando, Florida. 

I submit this testimony on behalf of the National Employment Lawyers Association (NELA) 

regarding its comments and recommendations for statutory changes to improve and ensure 

access to justice for our nation's servicemembers. 

NELA is the country's largest professional organization exclusively comprised of lawyers who 

represent individual employees in cases involving employment discrimination and other 

employment-related matters. NELA and its 69 circuit, state, and local affiliates have more than 

3,000 members around the country. 

My law practice focuses on labor and employment law, and I am Board Certified by the Florida 

Bar in Labor and Employment Law and Vice Chair of the Florida Bar's Labor and Employment 

Law Certification Committee. I am a NELA member and serve as NELA's advisor on the 

Uniformed Services Employment and Reemployment Rights Act (USERRA). I have a taken a 

special interest in USERRA since the law's inception and wrote one of the first law review 

articles on the statute, Veterans' Employment Rights: Keeping in Step with USERRA's Legion of 

Changes, 46 Lab. L.J. 387 (1995). For many years now, Edward Still (who is also a NELA 

member) and I have co-authored The USERRA Manual: Uniformed Services Employment and 

Reemployment Rights (Thomson Reuters 2014) (and all prior editions). 

NELA commends the Subcommittee for calling this hearing today. We, as lawyers and as 

Americans, must do all we can to help veterans and servicemembers who have suffered 

violations of their employment rights by improving USERRA's enforcement and remedial 

provisions. NELA and its members are honored to serve as advocates for military reservists and 

we are pleased to have the opportunity to do so in partnership with the Reserve Officers 

Association and other organizations that support our nation's military and their families. 

Our testimony will address some of the enforcement obstacles-forced arbitration, sovereign 

immunity, weak remedies--and offer specific recommendations for strengthening the Act. We 

will also address another overlooked issue: the significant tax consequences for 

servicemembers who receive lump sum payments of back pay awards in compensation for 

violations of their employment rights. 

USERRA Defined 

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 

U.S.C. § 4301 et seq., ensures veterans and servicemembers (including members of the 

Reserves and National Guard) that their jobs will not be jeopardized by their military service. 

The Act protects against employment discrimination due to military membership or service; 

provides reemployment rights and benefits to employees who leave civilian jobs to perform 

military service; and entitles employees to certain rights and benefits while they are away for 

military service. USERRA permits persons who believe their USERRA rights have been violated 

to file a complaint with the Department of Labor's Veterans' Employment and Training Service 

(VETS) and-if VETS does not resolve their complaint-to request that the Department of 

Justice (DOJ) pursue litigation on their behalf. 

The Act also provides individuals with a private right of action should they choose not to file a 
140 

complaint with VETS or pursue the DOJ representation procedure, or should DOJ decline to 

pursue the alleged violation. To facilitate the goal of full compensation for individuals wronged 

under the Act, the original legislation specifically authorized "the award of attorney fees, expert 

witness fees, and other litigation expenses as a further effort to make servicemembers whole 

and not have them suffer any loss in realizing their reemployment rights." Senate Report 

No. 103-158 at 69 (1993). 

These remedies, however, are in fact very weak because they are allowable at the court's 

discretion for employees who obtain private counsel and prevail in USERRA lawsuits against 

private, state, or local government employers. As Lt Savage testified today, these weak 

remedies make it very difficult for servicemembers to find counsel willing to take their cases. 

Furthermore, state and local government employers are arguing USERRA does not apply to 

them. 

Barriers To Access To Justice: Forced Arbitration 

Forced arbitration is a major problem for returning servicemembers attempting to get their jobs 

back under USERRA In 2006, the United States Court of Appeals for the Fifth Circuit held 

USERRA claims are subject to forced, binding arbitration under the Federal Arbitration Act 

(FAA), despite express language in Section 4302(b) of USERRA prohibiting "any" contract that 

limits "any right or benefit" provided to servicemembers by USERRA, "including the 

establishment of additional prerequisites to the exercise of any such right or the receipt of any 

such benefit"1 The court misconstrued "right" as used in Section 4302(b) as inapplicable to the 

enforcement rights USERRA grants servicemembers. 

In the wake of the Fifth Circuit's decision, numerous courts, including the Court of Appeals for 

the Sixth Circuit, have enforced forced arbitration clauses against servicemembers who sought 

to exercise their right under USERRA to have their claims heard in court 2 The arbitration 

clauses enforced in these cases, like that in the Fifth Circuit case, were imposed by employers 

without the servicemembers' knowledge and consent and before the USERRA claims alleged in 

the cases had arisen. In fact, it is not unusual in such cases for the servicemember to have any 

1 Garrett v. Circuit City Stores, Inc., 449 F.3d 672 (5th Cir. 2006) (employer's pre-dispute 

arbitration policy provided to servicemember in 1995 treated as agreement to arbitrate his 

USERRA claims arising in 2002 and 2003 by virtue of his failure to opt out of policy within 30 

days of receipt). 

2 See, e.g., Landis v. Pinnacle Eye Care, LLC, 537 F.3d 559 (6th Cir. 2008) (pre-dispute 

arbitration clause in employment agreement); McLean v. Byrider Sales of Indiana S, LLC, 2013 

WL 4777199 (S.D. Ohio 2013) (pre-dispute arbitration clause in job application); Palmer v. 

Midland Food Servs. Inc., 2011 WL 4458781 (N.D. Ohio 2011) (pre-dispute arbitration clause in 

employment agreement; clause required veteran to pay cost to initiate arbitration) Will v. 

Parsons Evergreene, LLC, 2008 WL 5330681 (D. Colo. 2008) (pre-dispute arbitration clause in 

employment agreement); Ohlfs v. Charles Schwab & Co., Inc., 2008 WL 4426012 (D. Colo. 

2008) (pre-dispute arbitration clause in securities broker/advisor registration); Ernest v. 

Lockheed Martin Corp., 2008 WL 2958964 (D. Colo. 2008) (pre-dispute arbitration agreement 

required as condition of employment); Kitts v. Menards, Inc., 519 F. Supp. 2d 837 (N.D. Ind. 

2007) (pre-dispute arbitration agreement in job application). 

2 
141 

awareness or recollection of ever entering into any so-called "agreement" to arbitrate future 

USERRA claims. 3 

Properly construed, Section 4302(b) prohibits contracts requiring servicemembers to give up 

their enforcement rights under USERRA in order to gain employment or keep their jobs. 

USERRA's legislative history confirms this construction. In explaining Section 4302(b), the 

House Committee on Veterans' Affairs stated that "resort to ... arbitration ... is not required"; 

and that "[a]n express waiver of future statutory rights, such as one that an employer might wish 

to require as a condition of employment, would be contrary to the public policy embodied in 

[USERRA] and would be void."4 Moreover, the Department of Labor interprets Section 4302(b) 

as prohibiting arbitration agreements waiving a servicemember's right to pursue a court action 

under USERRA.5 

Nonetheless, the established and growing trend in the courts is to enforce pre-dispute 

arbitration contracts against unwilling servicemembers claiming violations of their rights under 

USERRA. We urge Congress to stem the tide by amending USERRA to prohibit explicitly 

enforcement of pre-dispute arbitration provisions against servicemembers who want 

their USERRA claims to be heard in court. 

Senators Mark Pryor (D-AR) and Lisa Murkowski (R-AK) will soon reintroduce the 

Servicemember Employment Protection Act, which would ban forced arbitration of USERRA 

claims and provide servicemembers with additional Family and Medical Leave Act benefits. 

NELA strongly supports this bipartisan legislation, which was endorsed in the 112th Congress 

by organizations including the Reserve Officers Association, the Paralyzed Veterans 

Association, the Iraq and Afghanistan Veterans of America, the Military Officers Association of 

America, and the Veterans of Foreign Wars. 

To combat forced arbitration against servicemembers and their families, NELA urges 

Congress to enact the Arbitration Fairness Act !AFA, S. 878). The AFA would ban forced 

arbitration of consumer claims (including those under the Servicemembers Civil Relief Act), as 

well as employment and civil rights disputes. 

Barriers To Access To Justice: State Sovereign Immunity 

Servicemembers seeking to bring lawsuits to enforce their USERRA rights against state 

employers have increasingly been denied access to courts. 

3 See, e.g., Ernest, 2008 WL 2958964 (veteran required to arbitrate USERRA claim under predispute mandatory arbitration agreement that he had no recollection of signing). 

4 H.R. REP. No. 103-65, pt. 1, at 20 (1993), as reprinted in 1994 U.S.C.C.A.N. 2449, 2453. 

5 70 Fed. Reg. 75,246, 75,257 (Dec. 19, 2005) ("Section 4302(b) of USERRA states that the 

statute supersedes 'any * * * contract, agreement, policy, plan, practice, or other matter that 

reduces, limits, or eliminates in any manner any right or benefit provided by [the Act].' This 

provision against waivers includes a prohibition against the waiver in an arbitration 

agreement of an employee's right to bring a USERRA suit in Federal court.") (internal citation 

omitted). 

3 
142 

When enacted in 1994, USERRA authorized servicemembers to sue state employers in federal 

court. Based on well-established case law under USERRA's predecessor legislation, 

Congress's War Powers under Article I of the Constitution fully authorized Congress to subject 

states to private lawsuits to enforce servicemembers' civilian employment and reemployment 

rights. 6 

The tide turned, however, with the Supreme Court's 1996 decision in Seminole Tribe of Florida 

v. Florida, which held Congress cannot use its commerce powers under Article I of the 

Constitution to override states' immunity under the Eleventh Amendment from private suits for 

damages? Although Seminole Tribe did not concern Congress's War Powers, broad language 

in the decision suggested no Article I power authorized Congress to override the Eleventh 

Amendment. In the immediate aftermath of Seminole Tribe, some federal courts held states 

enjoyed Eleventh Amendment immunity from USERRA claims8 Nonetheless, the Court of 

Appeals for First Circuit bucked the trend, ruling that Seminole Tribe's "hold[ing] that Congress 

lacks the power to abrogate the Eleventh Amendment under the Commerce Clause ... does not 

control the War Powers analysis."9 

In response to the post-Seminole Tribe decisions holding states have Eleventh 

Amendment immunity from private USERRA suits filed in federal court, and in an effort to 

ensure state employees a forum to bring lawsuits to enforce USERRA, Congress, in 1998, 

amended USERRA's enforcement provisions to (among other things) replace federal court 

jurisdiction over private suits against states with state court jurisdiction over such suits. 10 The 

understanding at the time was that states would have no immunity from federal claims brought 

in state courts. In 1999, however, the Supreme Court ruled in Alden v. Maine that Congress's 

6 See Reope/1 v. Commonwealth of Mass., 936 F.2d 12 (1st Cir. 1991); Peel v. Florida Dep't of 

Transportation, 600 F.2d 1070, 1084 (5th Cir. 1979); Jennings v. Illinois Office of Educ., 589 

F.2d 935, 938 (7th Cir. 1979); Moore v. State of Kansas, 1979 WL 1866 (D. Kan. 1979); Sheely 

v. Idaho Falls School Dist. No. 91, 1978 WL 1667 (D. Idaho 1978); Camacho v. Public Svc. 

Com. of Commonwealth of Puerto Rico, 450 F.Supp. 231 (D. P.R. 1978). 

7 Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). 

8 See Velasquez v. Frapwe/1, 160 F.3d 389, 395 (7th Cir. 1998), vacated in part, 165 F.3d 593 

(7th Cir. 1999); Palmatier v. Michigan Dept. of State Police, 981 F. Supp. 529 (W.D. Mich. 

1997). 

9 Diaz-Gandia v. Dapena-Thompson, 90 F.3d 609,616 n.9 (1st Cir. 1996). 

10 See 38 U.S. C. § 4323(b)(2). Note: Federal appellate courts addressing the issue have ruled 

the 1998 amendment divested the federal courts of jurisdiction to hear private suits against 

states. See Velasquez v. Frapwe/1, 165 F.3d 593, 593-94 (7th Cir. 1999); Mcintosh v. Partridge, 

540 F.3d 315, 320-21 (5th Cir. 2008); Townsend v. University of Alaska, 543 F.3d 478, 484-85 

(9th Cir. 2008); Wood v. Florida Atlantic University Bd. of Trustees, 432 Fed. Appx. 812, 815 

(11th Cir. 2011) (citing Velasquez, Mcintosh, and Townsend). See also Rimando v. Alum Rock 

Union Elementary School Dist., 356 Fed. Appx. 989 (9th Cir. 2009) (California public school 

district is treated same as state for jurisdictional purposes under USERRA.). 

4 
143 

authority under Article I did not include the power to subject nonconsenting states to private 

suits for damages in state courts." 

Alden was not brought under USERRA and did not concern Congress's War Powers. Rather it 

was brought under the Fair Labor Standards Act, which is a commerce powers enactment. 

Nonetheless, in the wake of Alden, a number of state courts have held state employers enjoy 

immunity from USERRA claims brought in state court. Thus far, state courts in Alabama, 

Delaware, Georgia, New Mexico, and Tennessee have so held. 12 As a result, no forum is 

available for state employees in these states to bring private suits to enforce their rights under 

USERRA. State courts in only three states-Ohio, South Carolina, and Wisconsin-have found 

no state immunity from USERRA claims. 13 Minnesota may be the lone state with a statute 

explicitly waiving sovereign immunity; the statute, Minn. Stat Sec. 1.05, allows direct lawsuits 

under specific federal laws including USERRA. State employees in most other states have no 

assurance they can sue to enforce their USERRA rights. 

As a solution, NELA recommends that Congress amend USERRA to provide explicitly 

once again for federal court jurisdiction over private USERRA suits against states. NELA 

believes Congress's War Powers authorize Congress to subject unwilling states to lawsuits in 

federal court under USERRA. 14 NELA notes that a decade after deciding Seminole Tribe, the 

Supreme Court held in Central Virginia Community College v. Katz, 546 U.S. 356 (2006), that 

the language in Seminole Tribe suggesting that Article I power cannot be used to override 

states' Eleventh Amendment immunity was dicta based on an "assumption" that "was 

erroneous." 15 Significantly, Katz went on to hold that Congress's power under Article I to enact 

11 Alden v. Maine, 527 U.S. 706, 119 S. Ct. 2240 (1999). 

12 Ramirez v. State ex ref. Children, Youth and Families Dept.,- P 3d-, No. 31,820, 2014 WL 

953425 (N.M. Ct. App. Mar. 3, 2014); Smith v. Tennessee Nat. Guard, 387 S.W.3d 570 (Tenn. 

Ct. App. 2012), appeal denied, (Nov. 21, 2012), cert. denied, 133 S.Ct. 1471 (2013); Anstadt v. 

Board of Regents of University System of Ga., 303 Ga. App. 483, 693 S.E.2d 868 (2010); 

Janowski v. Division of State Police, Dept. of Safety and Homeland Sec., State of Delaware, 

981 A.2d 1166 (Del. 2009); Larkins v. Department of Mental Health and Mental Retardation, 806 

So. 2d 358 (Ala. 2001). 

13 Copeland v. South Carolina Dept. of Corrections, No. 2013-CP-42-2498 (S.C. Ct. Com. Pl. 

Mar. 28, 2014); Scocos v. State Dept. of Veteran Affairs, 2012 WI App 81, 343 Wis. 2d 648, 819 

N.W.2d 360 (Wis. Ct. App. 2012); Panareilo v. State, 2009 WL 301888 (R.I. Super. Ct. 2009). 

14 For excellent law reviews on this subject, see Harner, The Soldier and the State: Whether the 

Abrogation of State Sovereign Immunity in USERRA Enforcement Actions Is a Valid Exercise of 

the Congressional War Powers, 195 Mii.L.Rev. 91 (2008); Hirsch, Can Congress Use its War 

Powers to Protect Military Employees from State Sovereign Immunity?, 34 Seton Hall L.Rev. 

999 (2004). See also Brief for The United States as Amicus Curiae in Support of 

Appellee/Cross-Appellant, Ramirez v. State ex ref. Children, Youth and Families Dept.,- P.3d 

-, 2014 WL 953425 (N.M. Ct. App. Mar. 3, 2014) (No. 31 .820), available at 

http://www.justice.gov/crtlaboutlapp/briefs/ramirezbrief.pdf. 

15 Central Virginia Community College v. Katz, 546 U.S. 356, 363 (2006). 

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bankruptcy laws included authority to subject states to bankruptcy proceedings. 16 Certainly, the 

case for Congress's War Powers overriding states' claims of sovereign immunity is stronger 

than under the bankruptcy powers. 17 Indeed, the United States has taken the position that 

Congress's constitutional War Powers empower Congress to subject nonconsenting states to 

private suits under USERRA. 18 

As a result of the 1998 amendment replacing federal court jurisdiction over private suits against 

states under USERRA with state court jurisdiction, the issue whether the War Powers authorize 

Congress to subject nonconsenting states to private suits in federal court under USERRA was 

not fully litigated and thus never reached the Supreme Court. NELA believes jurisdiction should 

be restored to the federal courts so that the matter can be fully litigated with possible ultimate 

review by the Supreme Court. 

Barriers To Access To Justice: Weak Remedies 

NELA urges Congress to strengthen USERRA's remedies for violations of the Act. 

Damages for violations of USERRA in suits against private, state, or local government 

employers are limited to lost wages and benefits, plus, if willfulness is shown, an equal amount 

as liquidated damages. 19 ln USERRA actions against federal employers, damages are restricted 

to lost wages and benefits; liquidated damages are not authorized. 

These monetary remedies are inadequate to compensate employees for violations of their rights 

under USERRA. Employees unlawfully denied reemployment upon their return from military 

service or unlawfully fired because of their military obligations who fully mitigate their wage and 

benefit losses in other employment will have no recoverable damages under USERRA. 

Employees who suffer USERRA violations involving no lost compensation, such as employees 

who experience unlawful harassment in the workplace because of their military status or 

service, have no recoverable damages under USERRA. In each of these examples, liquidated 

damages cannot be awarded regardless of the willfulness of the violations because liquidated 

damages are unavailable under USERRA in the absence of a wage or benefit loss. 

16 /d. at 379. 

17 Cf. Lichter v. United States, 334 U.S. 742, 781 (1948) ('"[Congress's war] power, explicitly 

conferred and absolutely essential to the safety of the Nation, is not destroyed or impaired by 

any later provision of the constitution or by any one of the amendments."') (quoting address by 

Hon. Charles E. Hughes) (emphasis added); In re Tarble, 80 U.S. 80 US. 397, 408 (1871) 

(Congress's war powers are "plenary and exclusive"). 

18 See Brief for The United States as Amicus Curiae in Support of Appellee/Cross-Appellant, 

Ramirez v. State ex rei. Children, Youth and Families Dept.,- P.3d -, 2014 WL 953425 (N.M. 

Ct. App. Mar. 3, 2014) (No. 31 ,820), available at 

http//www.justice.gov/crt/about/app/briefs/ramirezbrief.pdf; United States' Brief as Intervenor, 

Weaver v. Madison City Bd. of Educ., 2013 WL 4433799 (N.D. Ala. Aug. 14, 2013) (No. 5:11-cv03558-TMP), available at http//www.justice.gov/crt/about/app/briefs/weaverndala.pdf. 

19 See 38 U.S.C. §§ 4323(d), 4324(c)(2). 

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NELA further notes that even when a USERRA plaintiff can prove a wage or benefit loss, there 

is no guarantee the plaintiff will be awarded liquidated damages. An employer's violation of 

USERRA is willful if the employer knowingly violated the plaintiff's USERRA rights or did so in 

reckless disregard of the plaintiff's USERRA rights. 20 The plaintiff bears the burden of proof on 

the issue of willfulness 21 This is a difficult and sometimes impossible burden to meet. For 

example, courts have declined to award liquidated damages in USERRA cases where the 

employer claimed it consulted with counsel about its USERRA obligations, 22 or contended its 

violation of USERRA was an honest mistake. 23 Because the plaintiff solely bears the burden of 

proof, the plaintiff must disprove such allegations to show willfulness. 24 

Furthermore, because USERRA does not authorize awards of compensatory damages beyond 

lost wages and benefits, no matter how much an employee is injured in other respects as a 

result of a USERRA violation-whether through emotional pain, suffering, inconvenience. 

mental anguish, loss of enjoyment of life, other nonpecuniary losses; pecuniary losses other 

than lost wages and benefits; or future pecuniary losses-there is no remedy to compensate for 

the injury under USERRA. 

Moreover, the absence of a monetary remedy for a USERRA violation can result in denial of a 

servicemember's access to justice. Courts have held servicemembers lacked standing to bring 

USERRA claims when the alleged violation resulted in no loss of wages or benefits25 

NELA encourages Congress take the following actions to strengthen USERRA's 

remedies: (1) remove the willfulness requirement for awards of liquidated damages, but 

authorize a court to deny or reduce liquidated damages if the employer proves to the 

satisfaction of the court that the act or omission giving rise to the USERRA violation was in good 

faith and that the employer had reasonable grounds for believing the act or omission was not a 

violation of USERRA (this approach is authorized for cases under the Fair Labor Standards 

20 20 C.F.R. § 1002.312(c). 

21 See Davis v. Crotha/1 Services Group, Inc., 961 F.Supp.2d 716,736 (W.O. Pa. 2013); Paxton 

v. City of Montebello, 712 F.Supp.2d 1017, 1021 (E.D. Cal. 2010). 

22 See, e.g., Paxton v. City of Montebello, 712 F. Supp. 2d 1017, 1021 (C. D. Cal. 2010); Reed v. 

Honeywe/1/nt'l. Inc., 2009 WL 886844, *9 (D. Ariz. 2009). See a/so Davis, 961 F.Supp.2d at 737 

(noting that "if a jury believed that Defendant's actions, including consulting with its in-house 

counsel ... , were a good-faith attempt to comply with USERRA, it would not award liquidated 

damages to Plaintiff'). 

23 See, e.g., Brill v. AK Steel Corp., 2012 WL 893902, *13 (S.D. Ohio 2012); US. v. Nevada, 

2012 WL 1530619, *2 (D. Nev. 2012). 

24 See Davis, 961 F.Supp.2d at 736 (declining to shift burden of proof to employer on its 

contention that it relied on advice of counsel). 

25 See, e.g., Dees v. Hyundai Motor Mfg. Alabama, LLC, 368 Fed. App'x 49, 52-53 (11th Cir. 

2010) (harassment claim); Richards v. Canyon County, No. 1:12-cv-424, 2014 WL 1270665 (D. 

Idaho Mar. 26, 2014) (claim alleging forced payout of vacation leave in violation of§ 4316(d) of 

USERRA) 

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Acf6 and the Family and Medical Leave Ace7); (2) provide for awards of liquidated damages in 

a statutorily-mandated specific amount in cases where there is no wage or benefit loss (for 

example, a statutory amount could be set at $25,000); (3) authorize awards of compensatory 

damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, 

other nonpecuniary losses, past pecuniary losses, and future pecuniary losses; (4) authorize 

awards of punitive damages for USERRA violations that are done with malice or reckless 

indifference: and (5) make available to federal employees awards of liquidated damages. 

By so strengthening USERRA's remedies, Congress will provide fuller relief for servicemembers 

who have suffered violations of their USERRA rights and also more effectively deter future 

violations of USERRA. 

Barriers To Access To Justice: Discretionary Award Of Attorney's Fees 

NELA urges Congress to amend USERRA's attorney's fees provisions to make 

mandatory awards of reasonable attorney's fees to plaintiffs who prevail in USERRA 

cases. USERRA currently provides that a prevailing plaintiff's reasonable attorney's fees "may" 

be awarded 28 The absence of a mandatory-fee provision for prevailing plaintiffs can deter 

servicemembers with meritorious USERRA claims from suing out of concern a court would 

exercise its discretion to deny recovery of fees. Further, the absence of a mandatory-fee 

provision may deter attorneys from representing servicemembers who have meritorious 

USERRA claims. 

Amending USERRA to provide for mandatory awards of reasonable attorney's fees for 

prevailing plaintiffs is not a novel concept. Courts are required to award reasonable attorney's 

fees to plaintiffs who prevail on claims under the Fair Labor Standards Act, 29 Family and 

Medical Leave Act, 30 and Age Discrimination in Employment Act. 31 

Barriers To Access To Justice: Burdensome, Unfair & Confusing Tax Consequences 

Reforms to USERRA would not be complete without making corresponding reforms to the tax 

code. Current tax law penalizes all workers who successfully vindicate their workplace rights 

under various federal, state, and local laws. These laws include USERRA, Title VII of the Civil 

Rights Act of 1964, the Americans with Disabilities Act Amendments Act, the Family and 

Medical Leave Act, whistleblower protection statutes, and those regulating any aspect of the 

employment relationship. 

26 See 29 U.S. C.§§ 216(b), 260. 

27 See 29 U.S.C. § 2617(a)(iii). 

28 38 U.S.C. §§ 4323(h)(2), 4324(c)(4). 

29 29 U.S. C.§ 216(b). 

30 29 U.S.C § 2617(a)(3). 

31 29 U.S.C. § 626(b) (incorporating by reference 29 U.S. C.§ 216(b)). 

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