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41–368 2008

REVIEW OF EXPIRING PROGRAMS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ECONOMIC OPPORTUNITY 

OF THE

COMMITTEE ON VETERANS’ AFFAIRS 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

FEBRUARY 13, 2008 

Serial No. 110–68 

Printed for the use of the Committee on Veterans’ Affairs 

( 

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COMMITTEE ON VETERANS’ AFFAIRS 

BOB FILNER, California, Chairman 

CORRINE BROWN, Florida 

VIC SNYDER, Arkansas 

MICHAEL H. MICHAUD, Maine 

STEPHANIE HERSETH SANDLIN, South 

Dakota 

HARRY E. MITCHELL, Arizona 

JOHN J. HALL, New York 

PHIL HARE, Illinois 

MICHAEL F. DOYLE, Pennsylvania 

SHELLEY BERKLEY, Nevada 

JOHN T. SALAZAR, Colorado 

CIRO D. RODRIGUEZ, Texas 

JOE DONNELLY, Indiana 

JERRY MCNERNEY, California 

ZACHARY T. SPACE, Ohio 

TIMOTHY J. WALZ, Minnesota 

STEVE BUYER, Indiana, Ranking 

CLIFF STEARNS, Florida 

JERRY MORAN, Kansas 

HENRY E. BROWN, JR., South Carolina 

JEFF MILLER, Florida 

JOHN BOOZMAN, Arkansas 

GINNY BROWN-WAITE, Florida 

MICHAEL R. TURNER, Ohio 

BRIAN P. BILBRAY, California 

DOUG LAMBORN, Colorado 

GUS M. BILIRAKIS, Florida 

VERN BUCHANAN, Florida 

VACANT 

MALCOM A. SHORTER, Staff Director 

SUBCOMMITTEE ON ECONOMIC OPPORTUNITY 

STEPHANIE HERSETH SANDLIN, South Dakota, Chairwoman 

JOE DONNELLY, Indiana 

JERRY MCNERNEY, California 

JOHN J. HALL, New York 

JOHN BOOZMAN, Arkansas, Ranking 

JERRY MORAN, Kansas 

VACANT 

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public hearing records 

of the Committee on Veterans’ Affairs are also published in electronic form. The printed 

hearing record remains the official version. Because electronic submissions are used to 

prepare both printed and electronic versions of the hearing record, the process of converting 

between various electronic formats may introduce unintentional errors or omissions. Such occurrences are inherent in the current publication process and should diminish as the process 

is further refined. 

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C O N T E N T S 

February 13, 2008 

Page 

Review of Expiring Programs ................................................................................. 1 

OPENING STATEMENTS 

Chairwoman Stephanie Herseth Sandlin .............................................................. 1 

Prepared statement of Chairwoman Herseth Sandlin .................................. 29 

Hon. John Boozman, Ranking Republican Member ............................................. 2 

Prepared statement of Congressman Boozman ............................................. 29 

WITNESSES 

U.S. Department of Labor, Hon. Charles S. Ciccolella, Assistant Secretary, 

Veterans’ Employment and Training Service .................................................... 21 

Prepared statement of Hon. Ciccolella ........................................................... 51 

U.S. Office of Special Counsel, Hon. Scott J. Bloch, Special Counsel ................. 22 

Prepared statement of Hon. Bloch .................................................................. 54 

U.S. Department of Veterans Affairs, Keith Pedigo, Associate Deputy Under 

Secretary for Policy and Program Management, Veterans Benefits Administration ................................................................................................................... 23 

Prepared statement of Mr. Pedigo .................................................................. 58 

American GI Forum of the United States, Colonel Felix C. Vargas, Jr., USAR 

(Ret.), Senior Advisor ........................................................................................... 14 

Prepared statement of Colonel Vargas ........................................................... 49 

American Legion, Ronald F. Chamrin, Assistant Director, Economic Commission ........................................................................................................................ 9 

Prepared statement of Mr. Chamrin .............................................................. 44 

Iraq and Afghanistan Veterans of America, Todd Bowers, Director of Government Affairs .......................................................................................................... 12 

Prepared statement of Mr. Bowers ................................................................. 48 

Tully, Mathew B., Esq., Founding Partner, Tully Rinckey PLLC, Albany, 

NY ......................................................................................................................... 3 

Prepared statement of Mr. Tully ..................................................................... 29 

Veterans of Foreign Wars of the United States, Justin M. Brown, Legislative 

Associate, National Legislative Service .............................................................. 11 

Prepared statement of Mr. Brown .................................................................. 46 

SUBMISSIONS FOR THE RECORD 

Gold Star Wives of America, Inc., Vivianne Cisneros Wersel, Member, Government Relations Committee, statement ............................................................... 59 

Vietnam Veterans of America, Richard F. Weidman, Executive Director for 

Policy and Government Affairs, statement ........................................................ 61 

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(1) 

REVIEW OF EXPIRING PROGRAMS 

WEDNESDAY, FEBRUARY 13, 2008 

U.S. HOUSE OF REPRESENTATIVES, 

COMMITTEE ON VETERANS’ AFFAIRS, 

SUBCOMMITTEE ON ECONOMIC OPPORTUNITY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:32 p.m., in Room 

340, Cannon House Office Building, Hon. Stephanie Herseth 

Sandlin [Chairwoman of the Subcommittee] presiding. 

Present: Representatives Herseth Sandlin, Donnelly and 

Boozman. 

OPENING STATEMENT OF CHAIRWOMAN HERSETH SANDLIN 

Ms. HERSETH SANDLIN. Good afternoon, ladies and gentlemen. 

The Committee on Veterans’ Affairs Subcommittee on Economic 

Opportunity hearing will come to order. I apologize for the late 

start. Some of us had markups in other committees and the votes 

have been somewhat unpredictable today. Hopefully we will have 

about one-half hour to an hour here uninterrupted, and then we 

will be back with your patience. We appreciate the patience you 

have already demonstrated. 

I would like to call to the attention, to the Subcommittee, to the 

fact that the Vietnam Veterans of America and the Gold Star 

Wives of America have asked us to submit written statements for 

the hearing record. If there is no objection, I ask for unanimous 

consent that their statements be entered for the record. Hearing no 

objections, so entered. 

[The statements of the Gold Star Wives of America and the Vietnam Veterans of America appear on p. 59 and p. 61.] 

Ms. HERSETH SANDLIN. As many of you know, a recent Associated Press article dated February 8, 2008, highlighted the troubles 

encountered by recently released servicemembers in obtaining employment. The article went on to cite an employment histories report published for the U.S. Department of Veterans Affairs (VA), 

which concludes more can be done by the public and private sectors 

to ensure servicemembers are successful in obtaining employment 

after their service to our country. Furthermore, the article refers 

to a U.S. Department of Labor’s (DOL) Uniformed Services Employment and Reemployment Rights Act (USERRA) Annual Report 

to Congress, which cites a high rate of USERRA complaints by returning Guard and Reserve forces. 

I know that I am not alone when I say that this article raises 

serious concerns about the problems encountered by many of our 

constituents and today’s hearing gives us a venue to reevaluate 

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several programs that may help them succeed in life after the military. These programs have either recently expired, or are set to expire, or include benefits level rates of which are set to reduce to 

prior levels from prior years. These programs include the Incarcerated Veterans Transition Program, the Joint Office of Special 

Counsel (OSC) and U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS) Demonstration Project, apprenticeship and on-the-job training (OJT) benefit levels, and the Adjustable Rate Mortgage (ARM) Demonstration Projects. 

I look forward to working with Mr. Boozman, our Ranking Member, and Mr. Donnelly and other Members of the Subcommittee to 

continue to improve readjustment benefits available to all servicemembers and veterans. I would now like to recognize our Ranking 

Member, Mr. Boozman, for any opening remarks he may have. 

[The prepared statement of Chairwoman Sandlin appears on 

p. 29.] 

OPENING STATEMENT OF HON. JOHN BOOZMAN 

Mr. BOOZMAN. Thank you, Madam Chair. And I thank you for 

holding this important hearing on expiring authorities in both VA 

and VETS. When Congress creates new programs within the Federal Government, it is common to include a sunset that requires 

Congress to reauthorize the program a few years after the enactment of the law for review. This is an important management tool 

that allows us to review the program and then determine if it 

should continue. Sunsets are also the result of not having sufficient 

PAYGO offsets to make a program permanent. In general, I believe 

there is always room for improvements to any program and each 

probably also has some faults. That is why I look forward to hearing the suggestions of our witnesses on how we can do this. 

I would like to commend the testimony of Mr. Tully. While I 

have not had time to digest his suggested amendments to 

USERRA, which we will do, his good example, I think you have a 

very good example in writing a very effective testimony. He lists 

specific problems, cites the related U.S. Code, and offers specific 

recommendations on how to solve these problems. I thank him for 

the thoughtfulness with which he has addressed the issue and once 

again I thank you, Madam Chair, for holding this very important 

hearing and look forward to the testimony of our witnesses. 

[The prepared statement of Congressman Boozman appears on 

p. 29.] 

Ms. HERSETH SANDLIN. Thank you, Mr. Boozman. I would now 

like to welcome all of our panelists who will be testifying this afternoon. Let me first introduce to the Subcommittee our witness on 

our first panel, Mr. Mathew Tully, partner of Tully Rinckey, PLLC. 

Welcome to the Subcommittee. We look forward to your testimony. 

I would like to remind you, and all of the rest of our panelists this 

afternoon, that your complete written statement has been made a 

part of the hearing record. Please limit your remarks to 5 minutes 

so that we have sufficient time to follow up with you and the other 

panels this afternoon with questions that we may have. That way 

everyone has ample opportunity not only with their written testimony, but also has sufficient time to respond to some of our questions, most of which are going to be either anticipated, or will not 

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be out of left field based on your testimony and what we are trying 

to get at today, as Mr. Boozman described in his opening remarks. 

Mr. Tully, again, welcome and you are recognized for 5 minutes. 

STATEMENT OF MATHEW B. TULLY, ESQ., FOUNDING 

PARTNER, TULLY RINCKEY PLLC, ALBANY, NY 

Mr. TULLY. Thank you, Madam Chairwoman. Thank you Ranking Member Boozman, Members of the Committee, for allowing me 

to testify today. I am the victim of USERRA discrimination, I am 

also a survivor of the 9/11 attacks on the World Trade Center, and 

I am also a disabled veteran of Operation Iraqi Freedom. 

In 2004, my law partner, Greg Rinckey, who served as an Army 

Judge Advocate General (JAG) for 6 years, and I started our law 

firm with the sole purpose of helping USERRA victims. I think we 

know the law and all of its flaws better than most. With that said, 

we support the Office of Special Counsel’s continued involvement in 

the investigation of USERRA complaints. We also believe USERRA 

could be improved to better protect servicemembers. 

Specifically we would ask that the Office of Special Counsel have 

the power to discipline Federal supervisors who engage in 

USERRA discrimination. Right now, Federal supervisors routinely 

engage in USERRA discrimination and are not punished by their 

agencies unlike other laws, for example Equal Employment Opportunity (EEO) discrimination. If a supervisor were to engage in EEO 

discrimination,their agency would generally discipline that supervisor for violating the Code of conduct. That does not happen routinely in USERRA cases. And we believe that OSC should have the 

same powers that it has under the Hatch Act to bring separate disciplinary cases against members of the Federal Government who 

engage in USERRA discrimination. 

Secondly, USERRA is known in the employment law community 

as ‘‘the toothless law’’ because it does not provide for the same type 

of damages provided to other, in other employment law States. 

Servicemembers are treated as second class citizens in this respect. 

I would specifically point that the Whistle Blower Protection Act 

has additional damages that can be applied if somebody engages in 

whistle blower discrimination. EEO laws have very strong damages. They have liquidated damages. They have punitive damages. 

They have compensatory damages. 

Right now we currently have a client who works for the Post Office. His name is Richard Erickson. He is also a Sergeant Major in 

the Army Reserves. Sergeant Major Erickson was fired from the 

Post Office and received a letter. And the letter says he is terminated for taking excessive military leave. He has been unemployed 

for 2 years as his case battles through the Merit Systems Protection Board (MSPB) and through the Federal circuit. We think it is 

important to have injunctive relief and interim relief, which would 

allow Sergeant Major Erickson to immediately go to court and get 

an order reinstating him back to the Post Office before final order 

of the Merits Systems Protections Board or the Federal circuit is 

issued. That is common practice in EEO law. If somebody were to 

send a letter saying, ‘‘You’re fired because you’re an African American,’’ or, ‘‘because you’re Catholic,’’ or because you’re whatever protected class, you would take that letter into court and you would 

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be able to get an injunctive relief and that person would get returned back to work. And that is what we are talking about here 

with USERRA being toothless. None of these provisions are in 

USERRA. 

Next I would point out that the attorney fee provisions in 

USERRA are very weak. Unlike in other discrimination laws that 

mandate the payment of attorneys fees upon the successful conclusion of a case, USERRA doesn’t have that. And what you have is 

on one hand the number of USERRA attorneys in this country, 

that actively represent people, outside of my law firm. And that is 

because most employment lawyers don’t want to take on cases 

where there is no chance of recovering money, or there is a slim 

chance of recovering money. USERRA needs to have a provision 

that requires the payment of attorneys fees on a successful completion of the case. 

I know I only have a minute left. As a member of the National 

Guard, I see the hollowing out of the military occurring right now. 

And I believe the military is being hollowed out for two specific 

reasons. Employment disputes; you have combat veterans from 

Iraq and Afghanistan coming back and they are not reenlisting in 

the National Guard and Reserves because they have problems with 

their employers. This Committee has the power to change that. Nobody should not have to pick between staying in the National 

Guard or Reserve or keeping their employment. 

The second major dispute, although not on the topic of today, 

that I see as a common problem in my unit is custody, child custody. Single parents are being forced to pick between their children 

or the military. And as a father, if I was ever placed in that situation I would pick my child. And I would ask that this Committee 

review the provisions of the Servicemembers Civil Relief Act to ensure that child custody is addressed. And I know that there has 

been a change under the National Defense Act of 2008. That 

doesn’t go far enough. The law should be made crystal clear so that 

a deployment cannot adversely affect a parent in a child custody 

case. That is my 5 minutes. 

[The prepared statement of Mr. Tully appears on p. 29.] 

Ms. HERSETH SANDLIN. Well, no disrespect to some of our witnesses that will be following you but you have done a better job 

than a lot of folks sometimes do in keeping within your 5 minutes. 

I appreciate that, although I am certain that Mr. Boozman, Mr. 

Donnelly, and I have some questions for you based on not just what 

you shared with us in the last 5 minutes but other elements of 

your written testimony. I will go ahead and recognize our Ranking 

Member first for his questions. Mr. Boozman. 

Mr. BOOZMAN. Thank you for your testimony. Some have expressed concern that if you do increase the enforcement penalties 

for USERRA, that will make employers reluctant to hire Guardsmen. How do you respond to that? 

Mr. TULLY. There is already a provision in USERRA that says 

you cannot discriminate based on a person’s military status. Where 

the concern here lies, sir, is in Reservists that are on their second, 

third, or fourth deployment. I am a small businessowner. And I 

don’t know how I would handle a person who in the course of, since 

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September 11th, has deployed four times overseas. That is where 

we are running into concrete, intentional violations of USERRA. 

As a general rule, I like to hire veterans. I like to hire Reservists, 

I like to hire National Guardsmen. I think overwhelmingly that is 

what Americans like to do. So I don’t see a problem with the initial 

hiring. I see a problem when they are actually employed and they 

are on their third or fourth deployment to Iraq or Afghanistan in 

5 years. For small businesses, that is just catastrophic. And I can 

tell you as a small businessowner who deployed to Iraq, it was very 

hard for my firm. My firm lost $173,000 because of my deployment. 

Luckily I has a good partner and several associates that were able 

to make up the money. But I don’t think the issue, Mr. Congressman, is with the initial hiring. It is with once they are there. And 

educating the employers so that they don’t engage in discrimination, and then having strict penalties when they do. 

Mr. BOOZMAN. Very good. You mentioned the child custody. Can 

you give me a for real life example? 

Mr. TULLY. Absolutely. Approximately a month ago Specialist 

Towne, who is in my unit, the Headquarters, 42nd Infantry Division, lost custody of her daughter because she was deployed to Iraq. 

And the court held that the best interest of the child was that the 

child were to remain in Virginia of her ex-spouse. So she had custody of the child for approximately 9 years. She deployed to Iraq 

with me. When she came back she tried to get custody and the 

judge said, ‘‘The child has adjusted well to the schools in Virginia. 

The child has adjusted well to the new lifestyle. And although both 

of you are good parents,’’ and this is actually in the court order. 

‘‘While both of you are good parents, we don’t want to uproot the 

child again and bring her back to New York.’’ So here is a perfectly 

good soldier, a perfectly good mother, who lost custody because she 

went to Iraq to fight for her country. And I personally find it disgusting. 

Mr. BOOZMAN. And there were no other extenuating circumstances? 

Mr. TULLY. No. And it is, Towne is the name of the case. It was 

decided by the 3rd Appellate Division out of New York. It was pretty well publicized. And that is just the most recent one. And before 

that there were many that this Committee was aware about because they, you proposed changes in the National Defense Act of 

2008 to change the Servicemembers Civil Relief Act. But those 

minor changes, I believe it was six words, don’t, it pertains to temporary custody orders and not a more expansive protection of somebody’s custody rights. 

Mr. BOOZMAN. Very good. How do you respond to testimony from 

both OSC and VETS that their role as a Federal agency, with its 

natural insight into Federal processes, makes them better fit to 

process USERRA Federal claims? 

Mr. TULLY. I don’t buy it. In the U.S. Government Accountability 

Office (GAO) report, they handled approximately 200 cases, OSC 

about another 200, 300 cases by the Department of Labor. During 

that exact same timeframe, my law firm handled 1,800 USERRA 

cases. The vast majority of those were Federal employees. I will tell 

you this. My budget is a lot less than the Department of Labor, 

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ment of Labor VETS has. My firm is doing it much cheaper, much 

more effective. And that is what private sector does. And by making attorneys fees mandatory you will see a dramatic increase in 

the number of attorneys that are willing to take these cases. 

Right now, if you are an E4 and you have a USERRA complaint, you don’t have the money to pay an attorney $5,000, $10,000, 

$15,000. Now my law firm takes most of our cases on a contingency, or free, because we are trying to help USERRA veterans. 

But there are only so many cases we can take. If you are the average servicemember, your only two options are DOL VETS or, formerly Office of Special Counsel. And you are stuck with them. And 

unfortunately the DOL VETS only has a 7 percent success rate, according to the GAO Report. We have a 75 percent success rate. 

What that means is 75 percent of the clients, 75 percent of those 

1,800 clients that we took, we had a favorable settlement or we 

won their case in court. That is ten times what DOL VETS does. 

I think private sector is much more acquainted and much more 

able to handle these type of complaints. And we can do it cheaper. 

There is no reason why the Federal Government should be involved 

at all. 

Mr. BOOZMAN. You mentioned the 1,800 cases. Of that group, 

how many would qualify with the knowing, willful, malicious, 

whatever, would qualify for punitive damages? 

Mr. TULLY. I cannot, I don’t have it broken down. I would suspect it is—— 

Mr. BOOZMAN. What percentage do you think? 

Mr. TULLY [continuing]. A much smaller number. We don’t see 

on the Federal side a significant number of willful and intentional 

violations. What we see is a lack of education. And that is why we 

would hope if OSC were to have disciplinary powers, that would 

scare people into knowing what the law is. But I would say—— 

Mr. BOOZMAN. So it would be a small percentage? 

Mr. TULLY. Very small percentage. We see a higher percentage 

in the private employers that are facing the third and fourth deployment. In those cases, it is dramatically higher. But in the Federal Government side, a supervisor doesn’t really have an ax to 

grind. It is more of a lack of knowledge or lack of information. 

Mr. BOOZMAN. Thank you very much. Thank you, Madam Chair. 

Ms. HERSETH SANDLIN. Thank you, Mr. Boozman. Mr. Donnelly. 

Mr. DONNELLY. Thank you, Madam Chairwoman. In regards to 

your law firm’s work, and you may have mentioned this earlier, approximately how many firms would you say around the country 

specialize in the same type of work that you do, the USERRA 

work? 

Mr. TULLY. I am only familiar with about a handful of attorneys, 

not law firms, that do full-time USERRA litigation. Now with that 

said, there are thousands of attorneys that do employment law and 

they may do one USERRA case a year or two USERRA cases a 

year, but off the top of my head, I only know of about five private 

attorneys that work full time doing USERRA enforcement outside 

of the Federal Government. 

Mr. DONNELLY. And the Department of Labor handles cases as 

well? 

Mr. TULLY. Outside of the Federal Government. 

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Mr. DONNELLY. Right. 

Mr. TULLY. So no, including the hundred investigators, and the 

handful of attorneys that work for DOL VETS. 

Mr. DONNELLY. Do you feel that, and please don’t rely on modesty, but do you feel that your firm’s preparation, that the cases 

are much better presented and that is why your success rate is so 

much higher? 

Mr. TULLY. Absolutely. This is about a word of mouth. And unfortunately right now, DOL VETS, the word of mouth on the street 

is not very good. OSC was building a positive reputation among 

servicemembers. But DOL VETS has had 12 years, 13 years to fix 

their problems and they haven’t. So we have been successful. When 

you have a 75 percent success rate with 1,800 people that is a lot 

of happy clients that have a lot of money in their pockets that are 

telling all of their buddies in the Army Reserve and National 

Guard about this guy Mat Tully in Albany who can help you out 

with your employment problems. So the success of our firm, and 

my firm was started with just me, 5 years go. We are now up to 

almost twenty attorneys. The success of our firm is solely because 

of word of mouth and minor advertisement. 

Mr. DONNELLY. And do you feel that the awarding of attorneys 

fees would give veterans in other areas of the country more opportunity and better options in this area? 

Mr. TULLY. Absolutely. If there was mandatory attorneys fees, 

you would see a lot more attorneys get into this field than just the 

five attorneys that are there now. It would be like EEO law. You 

know, with all due respect, there is an EEO attorney on every 

street corner. And that is what I would like to see here with 

USERRA, is to have a lot of USERRA attorneys out there making 

sure that people are educated and making sure the laws are enforced. And that would come at no cost to the Federal Government. 

As a matter of fact, if there was a large private attorney base out 

there that was experienced in USERRA, DOL VETS and OSC 

would probably go out of business because what we are able to provide is immediate access to the court. When we are talking about 

OSC and DOL VETS, that is just the investigative phase. And that 

may take 6 months, a year. In one case DOL VETS has had a case 

from Alaska for 7 years. And that is before they even file in court. 

And that is assuming that the U.S. Department of Justice (DOJ) 

files the case in court. Within 2 weeks, we take a case, we are filing either before a court or before the Merit Systems and Protection Board. We bring immediate action, unlike Federal Government 

agencies, which take time to investigate and have various people 

who have to approve. DOL VETS has to, after an investigator, and 

I will turn this over to the Secretary, but there is a long process 

before it gets turned over to DOJ. In our case, you call in, we do 

a consult over the phone, you provide us a sworn statement attesting to the facts, and we take your case right into court. 

Mr. DONNELLY. Thank you very much. Madam Chairwoman, 

thank you. 

Ms. HERSETH SANDLIN. Thank you, Mr. Donnelly. Mr. Tully, you 

gave an example in your testimony today about the individual who 

was with the Postal Service I believe? 

Mr. TULLY. Yes, ma’am. 

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Ms. HERSETH SANDLIN. Would that be an example of willful and 

knowing violation, right? I think the supervisor stated it was for 

excessive time away from his job based on military service? 

Mr. TULLY. Absolutely. 

Ms. HERSETH SANDLIN. In one of the suggestions you made for 

improving USERRA you mentioned providing for injunctive relief—— 

Mr. TULLY. Yes. 

Ms. HERSETH SANDLIN [continuing]. The way other employment 

statutes do provide. So that would be, because currently there is 

no injunctive relief whether it was willful and knowing or whether 

it was ignorance of the law, correct? 

Mr. TULLY. There is injunctive relief on, for State and private 

employers at the discretion of the court. There is no injunctive relief on the Federal side. What we are asking for is injunctive relief 

on the Federal side as well as mandatory injunctive relief on the 

State side. And that is laid out in greater detail in my written 

statement. But in Mr. Erickson’s case, Sergeant Major Erickson’s 

case, if we had injunctive relief on the Federal side, I could have 

gone to the MSPB and gotten an order reinstating him until his 

case was finally adjudicated. 

Ms. HERSETH SANDLIN. Okay. Well I think that is a very good 

suggestion and we will pursue this further and perhaps with some 

of the witnesses on our other panels. Just as we will pursue some 

of the questions based on the rather stark statistics that you provide on the number of employees you have versus the number of 

cases that you have taken vis-a`-vis the OSC or DOL VETS, the 

rate of success in those cases. Now you recommend abolishing DOL 

VETS and shifting resources and responsibilities to the Employer 

Support of the Guard and Reserve (ESGR). Maybe I am misstating 

that, but if you could give me a better understanding of what it is 

you are proposing as it relates to OSC since their authority to be 

a primary referral has expired. You had mentioned they were 

building a better reputation among servicemembers in handling 

and investigating the claims under USERRA. Are you recommending a series of things that we reauthorize that authority so 

that they can be a primary referral? That we take DOL VETS entirely out of it? That we, in addition to providing for attorneys fees 

and other changes to USERRA, that there is some way of getting 

more private firms to take these cases? What exactly is the best 

case scenario in your opinion for handling the claims? Should we 

streamline it? Let one entity do the investigation, handle the 

claims? Or do it all in the private sector? 

Mr. TULLY. Thank you. I think the best case is for the ESGR to 

handle information, which is a significant part of what DOL VETS 

does. ESGR should get additional funding so that they can provide 

information to employers so they can be, for example, the good cop. 

And I believe mandatory attorneys fees would then allow private 

attorneys to get more active in these cases and enforce USERRA. 

And finally I believe OSC should be involved with, very similar to 

the Hatch Act, with the actual disciplining of Federal employees 

that engage in misconduct. As far as State employees and local employees, they are going to be subjected to punitive damages, liquidated damages, things of that nature so that there is really no 

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need for an OSC type enforcement there. But in the ideal world, 

best case scenario, turning this upside down, ESGR should get the 

funding for education. OSC should be doing discipline of intentional 

and willful violations of Federal employees, and private law firms 

should have mandatory attorneys fees when they successfully prove 

a case. If they take a case and they lose, they shouldn’t get attorneys fees, obviously. But if they take a case and win, they should 

get attorneys fees. That is the ideal situation. But in the meantime, 

today? I think that OSC should have all Federal employment cases. 

And I believe DOL VETS should continue with the State. Ideally, 

you should streamline it so that if you are going to keep one Federal agency involved in enforcement, you are going to have to decide DOL VETS or OSC. And my take on it, OSC in the 2 years 

or so that they have been doing it they have built a much better 

reputation in the community than DOL VETS. So if you are going 

to streamline it, I would say go with OSC. 

Ms. HERSETH SANDLIN. Thank you. Thank you very much for answering all of our questions. If we have further ones we will submit 

those to you in written form. 

Mr. TULLY. Thank you. 

Ms. HERSETH SANDLIN. We appreciate your perspective. We certainly appreciate the good work that you are doing on behalf of 

servicemembers and veterans. We appreciate your service to the 

country and your testimony today. 

Mr. TULLY. Thank you. 

Ms. HERSETH SANDLIN. Thank you very much for being here. 

Mr. TULLY. Thank you. 

Ms. HERSETH SANDLIN. Joining us on our second panel is Mr. 

Ronald Chamrin, Assistant Director on Economic Commission for 

the American Legion; Mr. Justin Brown, Legislative Associate in 

the National Legislative Service for the Veterans of Foreign Wars 

(VFW); Mr. Todd Bowers, Director of Government Affairs for the 

Iraq and Afghanistan Veterans of America (IAVA); and Colonel 

Felix Vargas, Senior Advisor to the American GI Forum. Gentlemen, thank you for being here. We appreciate your written testimony that has already been submitted, and look forward to hearing 

from each of you today. Mr. Chamrin, we will begin with you, and 

you are recognized for 5 minutes. 

STATEMENTS OF RONALD F. CHAMRIN, ASSISTANT DIRECTOR, 

ECONOMIC COMMISSION, AMERICAN LEGION; JUSTIN M. 

BROWN, LEGISLATIVE ASSOCIATE, NATIONAL LEGISLATIVE 

SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED 

STATES; TODD BOWERS, DIRECTOR OF GOVERNMENT AFFAIRS, IRAQ AND AFGHANISTAN VETERANS OF AMERICA; 

AND COLONEL FELIX C. VARGAS, JR., USAR (RET.), SENIOR 

ADVISOR, AMERICAN GI FORUM 

STATEMENT OF RONALD F. CHAMRIN 

Mr. CHAMRIN. Thank you Madam Chair and Members of the 

Subcommittee. Thank you for the opportunity to present the American Legion’s view on some of the VA’s expiring programs. The majority of the programs discussed today received increased payments 

by the passage of the Veterans Benefit Improvement Act of 2004, 

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Public Law 108–454. Due to the expiration of temporary increased 

payments on January 1, 2008, many veterans will receive a lower 

monthly payment for earned education benefits. The American Legion opposes any reduction in education assistance payments. The 

American Legion recommends that the dollar amount of the entitlement be indexed to the average cost of college education, including 

tuition, fees, textbooks, and other supplies at an accredited university, college, or trade school for which a veteran qualifies. 

Approximately 7,000 veterans are immediately affected due to 

the drop in monthly payments. The American Legion has long advocated for increased education benefits and raising the rates of 

the entitlement. Lowering benefits is an insult to all veterans, and 

an extension of the OJT payment rates implemented in Public Law 

108–454 should be indefinite. This would cover OJT for the GI Bill, 

Active Duty and Selective Reserve, the Veterans Education Assistance Program (VEAP), and Survivors and Dependents Educational 

Assistance Program. 

Not every veteran is destined for college. Therefore, the GI Bill 

needs to be more accessible for those veterans with vocational aspirations other than college. The overall cost of these vocational 

training and licensing programs far exceed the monthly stipend 

provided under the traditional college student for 36 months approach in the current GI Bill. Veterans should be afforded the opportunity to attend programs that will lead to the vocation of their 

choice. 

In addition, a high percentage of today’s servicemembers are 

married with children in the majority of cases when they are discharged. Meeting the financial obligations to sustain and maintain 

a household is paramount and often serve as a major obstacle to 

their timely use of the GI Bill. Every effort must be made to empower every veteran with options to make the best vocational 

choice to help them achieve the American Dream. 

I will briefly talk about the VA Loan Guarantee Program 

Projects. The American Legion supports the reinstatement of the 

Adjustable Rate Mortgage Programs that will expire at the end of 

this calendar year. Since the VA Home Loan Program was enacted 

as part of the original Servicemen’s Readjustment Act 1944, VA 

has guaranteed more than 18.2 million home loans totaling nearly 

$938 billion. From 2001 to 2006 VA assisted more than 1.4 million 

veterans in obtaining home loan financing, totaling almost $197 

billion. About half of these loans, just over 730,000, were to assist 

veterans to obtain a lower interest rate on existing VA guaranteed 

home loans through the VA’s Interest Rate Reduction Refinancing 

Loan Program. The American Legion also supports administrative 

and/or legislative efforts to improve and strengthen the loan guarantee service’s ability to serve American’s veterans. H.R. 4884, the 

‘‘Helping Our Veterans To Keep Their Homes Act of 2008,’’ addresses the expiration of these programs. 

In reference to the topics before the Committee today, the American Legion supports the following portions of the proposed legislation, H.R 4884, section 2a, the extension of demonstration project 

on adjustable rate mortgages to 2018 and the extension of Demonstration Project Hybrid Adjustable Rate to 2012. 

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In conclusion, former President Franklin Delano Roosevelt once 

said, ‘‘The test of our progress is not whether we add more to the 

abundance of those who have much. It is whether we provide 

enough for those who have little.’’ Different options for purchases 

of homes and the ability to afford an education must constantly be 

provided to veterans. The American Legion looks forward to continue working with the Subcommittee to assist the Nation’s veterans. Madam Chair and Members of the Subcommittee, that concludes my testimony. 

[The prepared statement of Mr. Chamrin appears on p. 44.] 

Ms. HERSETH SANDLIN. Thank you, Mr. Chamrin. Mr. Brown, 

you are recognized for 5 minutes. 

STATEMENT OF JUSTIN M. BROWN 

Mr. BROWN. Madam Chairwoman, Ranking Member Boozman, 

and Members of this Subcommittee, on behalf of the 2.3 million 

members of the Veterans of Foreign Wars of the United States and 

our auxiliaries, I would like to thank you for the opportunity to testify before this distinguished body. 

Today as we consider veterans issues of transition and stabilization—employment, housing, and education—I ask that we briefly 

reflect on a historical comparison. In 1973, following the Vietnam 

War, the all volunteer force was implemented. In order to fill the 

ranks of a military worn down by fighting in Vietnam, recruitment 

standards were reduced. In 1976, the Post Vietnam Era Veterans 

Education Assistance Program, VEAP, was created as a recruitment incentive to help fill the ranks. However, relative to programs 

that came before VEAP, it provided the least amount of education 

benefits to veterans. 

From 1973 to 1985, the military had lowered recruitment standards and meager transition benefits, resulting in a group of veterans that is three to four times more likely to be homeless than 

their non-veteran counterparts. In contrast, Vietnam veterans prior 

to this time period are only one to 1.4 times more likely to be 

homeless than their non-veteran counterparts. Currently, the most 

common attribute of a homeless veteran is not combat. It is their 

age and relation to public policy. 

The commonly held notion that the military experience provides 

young people with job training, educational and other benefits, as 

well as the maturity needed for a productive life conflicts with the 

presence of veterans amongst the homeless population. 

If we are to use history as a marker we might suggest that a robust, attractive initial education investment would have alleviated 

many of the issues America and its veterans are coping with today. 

If we fail on the front end with hand up programs such as education, job training, and vocational rehabilitation we miss an opportunity to create a sound stabilization and transition program. In 

the end, the American people pay for expensive programs that are 

difficult to administer, produce limited results, and often fail to 

achieve their objectives. We ask that Congress closely monitor and 

consider the future implications of lowered recruitment standards. 

Raising the initial education benefit could offset some of the reduction in recruitment standards while providing the best tool to transition from the military to the civilian workforce. 

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With the War fast approaching its seventh year, veteran educational benefits have not been adjusted to reflect the cost of an 

education. Almost daily a new media article about the failure of the 

GI Bill to pay for veterans education can be found nullifying what 

used to be the U.S. Department of Defense’s (DOD’s) most effective 

recruitment tool, the most recent of which aired last night on the 

News Hour with Jim Lehrer. We have been down this weary road 

before. DOD is lowering recruitment standards and the value of the 

GI Bill continues to falter. We ask that Congress be proactive in 

their approach to veterans, the military, and our future. 

I will now briefly address the individual programs. The Incarcerated Veterans Transition Program (IVTP): the VFW is supportive 

of the spirit of the Incarcerated Veterans Transition Program but 

we need to see assurances of its effectiveness. If DOL can substantiate that IVTP has been effective in helping veterans stay out of 

prison and/or jail, VFW supports it. The Uniformed Services Employment and Reemployment Rights Act, USERRA: in regards to 

USERRA, VFW appreciates the vigor that the four departments, 

DOJ, OSC, DOD, and DOL have taken in ensuring that veterans 

are not discriminated against based on military status. The VFW 

agrees with recent testimony from GAO’s Brenda Farrell that suggests Congress make a single entity accountable for maintaining 

visibility over the entire USERRA complaint resolution process. 

Designating one single entity would, in GAO’s view, enhance efforts 

to improve overall program results. The Demonstration Project on 

Adjustable Rate Mortgages: the VFW is happy to support legislation that would make permanent the authority to provide increased 

financing opportunities under the VA Home Loan Program by allowing VA to offer conventional and hybrid adjustable rate mortgages. The Survivor’s Independence Educational Assistance, better 

known as Chapter 35: the VFW strongly supports Chapter 35 educational benefits for eligible dependents of certain veterans, and 

would like to see its funding continue. The Post Vietnam Era Veterans Educational Assistance Program, VEAP: the VFW believes 

that this benefit is inequitable relative to other educational benefits available, and future claims should be administered as a Chapter 30 benefit. 

Chairwoman Herseth Sandlin, Ranking Member Boozman, thank 

you for the opportunity to testify. I would be happy to answer any 

questions that you or the Members of the Committee may have. 

[The prepared statement of Mr. Brown appears on p. 46.] 

Ms. HERSETH SANDLIN. Mr. Brown, thank you. Mr. Bowers, you 

are now recognized for 5 minutes. 

STATEMENT OF TODD BOWERS 

Mr. BOWERS. Madam Chairwoman and Members of the House 

Veterans’ Affairs Committee Subcommittee on Economic Opportunity, on behalf of the Iraq and Afghanistan Veterans of America 

and our tens of thousands of members nationwide, I thank you for 

the opportunity to testify today regarding expiring VA programs. In 

the interest of time I will limit my testimony to the Department 

of Labor’s Veterans Employment and Training Services, or also 

know as VETS Program. 

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IAVA is a proud supporter of the Department of Labor VETS 

Program. I have personally had the opportunity to meet with the 

staff members who work with this program and I continue to be 

thoroughly impressed with their dedication. I have also spoken to 

many veterans who have benefited from DOL programs, such as 

Hire Vets First. These programs are much needed. According to the 

Bureau of Labor and Statistics, unemployment among recently discharged veterans is 11.9 percent. The rate is even higher for veterans ages 18 to 24. Approximately 18 percent of these veterans 

are unemployed. That is three times the national average. For the 

1.6 million Iraq and Afghanistan veterans returning home, employment opportunities and protections are a crucial part of their transition into civilian life. This is also the single most effective defense 

in combating homelessness among our Nation’s veterans. 

The conflicts in Iraq and Afghanistan have drawn heavily on our 

reserve component forces. These troops, often the breadwinners of 

their families, face serious economic burdens during and after deployment. Many are business owners who face tremendous obstacles in ensuring their businesses are appropriately managed while 

they are gone. One of my fellow Marines, when he was deployed 

to Iraq, was forced to rely on the goodwill of his community to ensure his family business did not go under while he was deployed. 

He was a proud business owner, but had serious difficulties staffing his business while he was deployed. Without funding for advertising, he was forced to turn to the media to let them know that 

he was still open for business. 

A Defense Department study in 2000 showed that 40 percent of 

Reservists lost income when they are called to active duty. Some 

12,000 formal and informal Uniformed Services Employment and 

Redeployment Rights Act, or USERRA, complaints were filed by 

National Guardsmen and Reservists in fiscal year 2004 and fiscal 

year 2005, according to the GAO. IAVA has called for better outreach and a more streamlined referral service for USERRA complaints. Currently a servicemember wishing to file a complaint is 

forced to move through hurdles that cross three Federal agencies 

and an onslaught of paperwork. We also support tougher enforcement of USERRA protections and believe that employers who consistently violate USERRA should be barred from eligibility for Federal Government contracts and face civil and criminal prosecution. 

In addition, the GAO has outlined a series of recommendations regarding USERRA claims referrals which we hope the Committee 

will seriously consider in any reauthorization of the OSC referral 

program. 

Serving your country should not mean sacrificing your civilian 

livelihood. Troops returning from Iraq and Afghanistan deserve the 

best possible employment protections. We thank this Committee for 

their hard work to support and protect our citizen soldiers. I will 

be more than happy to answer any questions at this time. 

[The prepared statement of Mr. Bowers appears on p. 48.] 

Ms. HERSETH SANDLIN. Thank you, Mr. Bowers. Colonel Vargas, 

thank you for being here. We look forward to hearing from you. 

You are recognized for 5 minutes. 

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STATEMENT OF COLONEL FELIX C. VARGAS, JR., USAR (RET.) 

Colonel VARGAS. Thank you, Madam Chairwoman and distinguished Members of this Committee, the American GI Forum appreciates very much this opportunity to present its views today on 

the issues before you. My name is Felix Vargas. I am a Vietnam 

veteran, and a veteran of conflicts in Central America, and in the 

Balkans during my time as a diplomat. I wish today to acknowledge the presence of our National Commander, Mr. Antonio Morales, who flew in from Dallas to join me for this. 

I want to say just briefly that the American GI Forum is a congressional Veterans Service Organization (VSO) founded 60 years 

ago by Dr. Hector P. Garcia to represent the interests and concerns 

of American war veterans of Hispanic origin, many of whom were 

denied their benefits at the conclusion of the Second World War. 

My father and others were among them. We are here today to add 

our support to the continuation of important veterans support programs currently managed by the Departments of Labor and Veterans Affairs. In the interest of time, I will talk just about three 

of them. 

First, the Incarcerated Veterans Transition Program, in our 

view, has provided invaluable assistance to incarcerated veterans 

to retrain and reenter the workforce. The American GI Forum Residential Center for Homeless Veterans in San Antonio has worked 

with many such veterans, and it projects that tens of thousands of 

incarcerated veterans are to be released annually for the foreseeable future. The demonstration project has proved successful and 

I think we will see that in the numbers presented by the Department of Labor. We recommend that the Congress make permanent 

this program and provide additional funding, enabling it to reach 

more communities. We fear that without this program, the problem 

of homelessness, which is already at an alarming rate, will be exacerbated. 

I wish you to know that my home State of Washington has taken 

an important step to help these veterans. Working closely with 

VSOs, the State has issued a booklet titled, ‘‘An Incarcerated Veterans Guidebook for Washington State.’’ It provides veterans important information on the resources and programs that are available and to which the veteran can connect upon his release. In fact, 

the booklet has proven so successful that other States have used 

it as a model for their own guidebooks. 

Again, we would like to see this program continue and we believe 

it needs to be authorized. 

Secondly, with respect to the Department of Labor’s Veterans 

Employment and Training Program, VETS, we see this as a pillar 

in the support structure for veterans. There is no greater assistance that can be provided to our returning warriors than job related training linked to follow on employment. We understand, 

Madam Chairwoman, that the issue before you concerns extension 

of the demonstration project allowing both the Office of Special 

Counsel and Labor to share the work of the processing the Federal 

claims filed under USERRA. We have no view on the division of 

labor. Our interest here is limited to seeing that aggressive enforcement of USERRA is carried out across the board by the U.S. Government. 

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Thirdly, the Apprenticeship and On the Job Training Program 

run by Veterans Affairs. This provides veterans and their immediate family a great incentive to achieve a coeducational objective. 

At a time when we see signs of an imminent recession in our country, and the problems that you have noted in the news article that 

you saw, it is important that we not lose sight of the contribution 

that this program makes in battling unemployment in a weakened 

economy. This program is about helping veterans and their families 

to work and learn while they prepare to fill jobs in both the private 

and public sectors. We note that the law that increased the OJT 

payments to 85 percent has expired here at the end of the year, 

and that without new legislation the rate now drops to 75 percent. 

We urge you to extend and make permanent the OJT payment rate 

of 85 percent. You should not allow this rate to revert back to 75 

percent. Our veterans who depend on these payments are facing 

daily increases in housing and other cost of living expenses. They 

need every cent that can be provided under this program. 

The other comment I would make here, Madam Chairman, is 

that you certainly should consider offering tax incentives to companies who agree to participate in the apprenticeship program. We 

know that there are all too few companies who do participate. 

And so, Madam Chairwoman, the American GI Forum considers 

the continuation of these programs before your Committee to be a 

reflection of your strong support for our veterans and their families. Taken as a whole, they go a long way to honoring the commitment made to our men and women who have served honorably in 

the military. I thank you for allowing us an opportunity to address 

you today. 

[The prepared statement of Colonel Vargas appears on p. 49.] 

Ms. HERSETH SANDLIN. Thank you, Colonel, and thank you to all 

of our witnesses on this panel. I would like to start off with a few 

questions as a follow-up to Mr. Tully’s testimony on USERRA specifically. Because a couple of you mentioned, I think Mr. Brown 

and Mr. Bowers, both of you specifically mentioned the importance 

of streamlining this process, and maybe having one single entity or 

charged with the USERRA complaint resolution process. Do either 

of you, or Mr. Chamrin, Colonel Vargas, do you have some ideas 

on which entity is best positioned to do this? Do you have other 

suggestions on how to streamline the process based on folks you 

are familiar with, members of your organizations? Do you have any 

specific comments in response to Mr. Tully’s testimony and some 

of the suggestions he had? Mr. Brown, if you want to start and 

then Mr. Bowers. 

Mr. BROWN. Thank you, Congresswoman. The idea behind 

streamlining the process as it is right now between the different 

departments is, what I think you are seeing a lot of, as Mr. Tully 

kind of outlined, is there is no clarity, there is a lot of bouncing 

around between the different departments. Between an individual 

veteran, when he comes into the system he might come in into 

DOL and then get referred to OSC, and there is no direct individual oversight for that veteran. Or if something does need to be 

streamlined or expedited, who do they go to? And there is just really not a lot of clarity to the process. 

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Ms. HERSETH SANDLIN. Are we speaking specifically about individuals who have been employed by Federal agencies? 

Mr. BROWN. My understanding is actually both. 

Ms. HERSETH SANDLIN. Okay. 

Mr. BROWN. Both individuals within State entities and individuals within Federal agencies. 

Ms. HERSETH SANDLIN. So your thought would be, look, even if 

there are multiple, even if there is a primary referral to OSC, or 

if it is DOL VETS, or if the veteran is being assisted by someone 

from a private law firm that there should be someone in the Department of Veterans Affairs or someone somewhere that helps 

oversee the whole process so it just does not get stuck somewhere 

for that veteran? 

Mr. BROWN. Correct. And also so that it doesn’t just get bounced 

to another department. 

Ms. HERSETH SANDLIN. Okay. Mr. Bowers. 

Mr. BOWERS. Well, I would start off by saying that I think Mr. 

Tully’s testimony was very powerful because it shows that there 

are definitely gaps in the system. The referral system, as it is set 

up right now, is extremely complex. I think it almost defines the 

phrase of having to deal with red tape. With that said, as I mentioned before, I have had the opportunity to work with a lot of folks 

over at the Department of Labor VETS Program and all of them 

wake up every morning with the intention of taking care of the veterans that they so rightfully represent. They face tremendous burdens as staff, and it is very difficult for them to take care of their 

own cases with this continuous referral system that they have to 

deal with. 

What we sort of look at would probably be the most effective 

measure would be to divide these responsibilities amongst the 

agencies. Now in no way, shape, or form, am I going to step up and 

say I am the expert to say, which agencies would best handle these 

issues, but that might bring some streamlineness to the way the 

system is currently handled. I have personally had some involvement with the Employers Support of the Guard and Reserve and 

I completely agree with Mr. Tully that it is an incredible organization. They are one that has really helped out a lot of veterans and 

the idea of having a level of oversight into watching these claims, 

and I would almost go as far as to say it may be worth this Committee’s time to think about sort of looking at the program for the 

next year, review and requiring a report at some point to be able 

to see the effectiveness of some of the changes that will come 

about. I think that would be extremely effective because as it 

stands right now it is really hard. We rely tremendously on the 

Government Accountability Office’s numbers and what they have 

seen, and also Mr. Tully’s testimony speaking about, you know, the 

percentage rates that he has had. But I think we need to take a 

real good in depth look at the effectiveness of the program and step 

forward with it. 

Ms. HERSETH SANDLIN. Well, I appreciate your thoughts here. 

Let me get some clarification before turning over to Mr. Boozman. 

Do you sense with the people that you have worked with at DOL 

that it is the complexity of the referral process? Or are there other 

factors coming into play that have resulted in percentages that are 

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not as favorable as we have seen from the GAO report and Mr. 

Tully’s testimony? 

Mr. BOWERS. I think it is the complexities of the referral process, 

I agree with you there, and also the tremendous increase we have 

seen of USERRA violations that has come up since these conflicts 

have started. 

Ms. HERSETH SANDLIN. Is it a staffing issue as well? 

Mr. BOWERS. I believe that, I have to say, you know, as we have 

seen in many realms, I believe that they are, yeah, are being 

pushed. They have a lot of cases that they are dealing with with 

limited resources, and that is why as I say the staff they wake up 

every morning, but people can only handle so much. There is only 

so much an amount of a caseload that they can handle and continue their effectiveness. 

Ms. HERSETH SANDLIN. Is it because they are handling cases that 

are not just in Federal agencies and the Federal Government? They 

are handling any violation, any complaint—— 

Mr. BOWERS. Yes. 

Ms. HERSETH SANDLIN [continuing]. Whether that occurred with 

a State agency, private-sector employer, etcetera? 

Mr. BOWERS. Yes, ma’am. And one of the, one of the things I 

would like to bring to this Committee’s attention is that on Sunday 

I had the opportunity to meet with representatives from all of the 

Veterans Integrated Services Networks (VISNs) throughout the VA 

system and was hearing about situations within the VA where they 

were having a lot of these issues coming up. Where veterans were 

coming back, having difficulties, and in many cases being fired 

wrongfully based on their deployments. This caught me very off 

guard. And I just wanted to convey to this Committee that I made 

it very clear to these individuals as they shared with me some of 

the stories that I would like to see some of the background, receive 

some of the paperwork on this, and really get a good understanding 

of what they are talking about here. And I will be more than happy 

to share that with the Committee once we have the appropriate information. 

Ms. HERSETH SANDLIN. Yes, I think we would appreciate that information. Again, Mr. Chamrin or Colonel Vargas if you want to 

address this, but one more follow up if you do not mind Mr. 

Boozman, for Mr. Bowers or any of you. What do you think of the 

idea of having injunctive relief available? Particularly given it 

seems from Mr. Tully’s testimony, in his experience, that so many 

of the violations, the vast majority of the violations, are ignorance 

of the law and ignorance of the protections, versus the willful and 

intentional decisions that have happened in some more isolated 

cases. Any initial response? Certainly you might want to take a 

closer look at it, but initial response to the idea of including injunctive relief? 

Mr. CHAMRIN. The American Legion has no position on this, but 

if we go back to our September 6th testimony regarding veterans’ 

preference we can kind of allude to, omit the knowingly portion. If 

the veteran is wronged, knowingly or unknowingly, something 

should be done. And I want to come back to Department of Labor 

VETS, and Todd was talking about the staff. Disabled Veterans’ 

Outreach Program Specialists (DVOPs) and Directors for Veterans’ 

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Employment and Training (DVETs)—I am sorry. DVOPs and Local 

Veterans’ Employment Representatives (LVERs) are asked to refer 

everything to the DVET. They are not the experts in USERRA 

claims. So if someone comes into a one stop career center, they are 

referred to the DVET. The DVET has a lot on their plate. We have 

long advocated for full funding for DOL VETS to help the DVET, 

to increase their training, to maybe have an office within the DVET 

to help with USERRA claims at the local level. And all of it comes 

down to the local level. If you have veterans filing claims, they already are financially unstable and insecure. They are looking for 

further employment. Something is going very wrong. So at the local 

level, the DVET can use his resources to get them get further employment, further training, and other remedies. 

Ms. HERSETH SANDLIN. Thank you. Mr. Boozman. 

Mr. BOOZMAN. Thank you, Madam Chair. Just to follow up on 

the Chair’s question, which is a good one. Mr. Tully, in his testimony, testified that he thought that we should remove the enforcement program from DOL VETS and basically let the lawyers do 

that. Is that, you are saying that there is a problem? Are you saying that you want to go that far? Or have you not thought about 

that? I mean, that is kind of something that has come up. Can you 

comment on that specifically for me? 

Mr. BOWERS. Yes. One of the things that we are really looking 

for this year is exactly what Mr. Tully said. We would like to see 

some teeth put into the capabilities to enforce USERRA violations. 

We are seeing this more and more where veterans are being taken 

advantage of, in regard to things such as binding arbitration agreements, where veterans are being unemployed and it has actually 

been overruled by the 5th Circuit Court in regards to some of these 

cases. Because there is no ammunition behind enforcing these laws 

I would like to see an increase in that. And our membership would 

like to see more ammo, if you will. The rifle is only as strong as 

the bullet in it. 

Mr. BOOZMAN. And the advocate should be? 

Mr. BOWERS. I will defer that a little bit to the experts. As I 

mentioned before, we do not know who the experts will be in regards to enforcing those laws. Department of Labor VETS, because 

of the outreach that they have directly to a lot of these employers, 

in my, my personal opinion, I cannot speak on behalf of IAVA, may 

be the most appropriate folks to handle that. But, again, Office of 

Special Counsel may also hold that. So by no means does the end 

of my name have Esquire behind it so I am hesitant to make those 

claims. 

Mr. BOOZMAN. No, I understand. Does anybody else have a comment in that regard, or is that it? 

Colonel VARGAS. Just a comment, here, Mr. Congressman. We, as 

I stated in our testimony, do not have much of a view on the division of labor here. I, we would sort of be interested in hearing from 

the Labor representative about this particular issue. We do see a 

difference between aggressive enforcement and the investigations 

of the referral claims, and perhaps that is really what we are talking about, is two different functions. And whether one agency can 

perform both functions as opposed to a division of labor where one 

function goes to one agency and the other to the other. But, again, 

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that is not something we are taking a position on. We do support 

and endorse the most aggressive enforcement of USERRA possible. 

I will tell you from my experience in the eighties, living in Europe, that the problem for American Reservists overseas is worse 

yet. I recall many times where German employers and other European employers would essentially tell our American Reservists, you 

know, take your pick. Your job with us, or service to your country. 

But you cannot have both. And so, again, if we talk about protection we need to remember those who serve overseas and the powers 

that the American Embassy has to work through the host government to get some relief for our people overseas. Again, enforcement 

is the issue. 

Mr. BOOZMAN. Okay, and you guys, do you have a comment? 

Mr. CHAMRIN. I would just have to see more clarification of Mr. 

Tully’s statement. I was confused if he wants to abolish the entire 

DOL VETS which we would be adamantly opposed to, or if he is 

just referring to the USERRA program. So the American Legion 

has no position at this time. 

Mr. BROWN. We also have no formal position at this time, Congressman. 

Mr. BOOZMAN. Okay. Thank you guys, very much. 

Ms. HERSETH SANDLIN. Just a couple of other questions. I know 

that there are copies of Mr. Tully’s testimony available but it 

sounded to me like the proposal was along the lines of a division 

of responsibilities. Take current resources to DOL VETS, give that 

to the Employers Support of the Guard and Reserve to basically, 

almost like an intake of the complaints, right? And then have the 

OSC charged with the disciplinary authority that he described that 

we had some questions about in terms of how that might affect the 

hiring process based on some concerns that we have heard there. 

And then with the mandatory attorneys fees, if there was a successful case, that there would be more attorneys out there willing 

to handle the cases. I think we still have to fill in some details if 

we choose to pursue a proposal such as this based on your testimony, Mr. Tully’s, and our next panel’s as well as some additional 

information I think we would like to see. Clearly there is a problem 

here, and clearly when we are looking at different rates and some 

of the statistics we want to figure out the best practices and the 

best way to share information to help our servicemembers most effectively with the resources that we are going to have to do that. 

My last question is along the lines of the Incarcerated Veterans 

Transition Program. Colonel Vargas, I appreciate your testimony in 

sharing with us some of what Washington State has done. I know 

that is a State program. Other States have their programs and 

have perhaps adapted some of the practices of Washington State. 

Is there any Federal dollars that are going into administering that 

State program? Any grants from the VA? Any dollars that the Federal Government is putting in? 

Colonel VARGAS. Yes, Madam Chairwoman. The information I 

have is that there has been some VA dollars that have gone into 

this. The specifics and amounts and the mechanism, whether 

grants or other, I do not know. But yes, there has been some Federal support for this. 

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Ms. HERSETH SANDLIN. Okay. I think in light of other reports 

that we have seen over the last couple of months perhaps exacerbated by the statistics that we are familiar with that Mr. Bowers 

shared in terms of the relatively high unemployment rate, especially for 18- to 24-year-olds that are returning from deployments, 

if they are not in an education program, if they are having difficulty finding employment, we know that that can lead to other 

problems, that can sometimes result in arrest, conviction, and incarceration. I think that we really do have to look at this program, 

and any others that are being utilized, like Washington State’s. Mr. 

Brown, you had indicated that your organization supports it but 

would like to see more concrete evidence of the results that are 

being produced. Did anyone else want to comment on any other 

programs at the State level they are familiar with? Perhaps Mr. 

Chamrin, I think you may have mentioned it briefly? 

Mr. CHAMRIN. I do have some observations. In California, I am 

going to read here, they have a program called PREP, the Prisoner 

Reintegration Program, in San Diego. California has a $5 billion 

prison system. It costs about $44,000 per prisoner. And less than 

5 percent of all 10,000 prisoners released annually have any job 

training. So what California has done, it has created the Prisoner 

Reintegration Program. It is not focused exclusively on veterans, 

but all prisoners. What is significant about this is that they have 

a 502 percent return on investment. So as proven in California, 

prevention of recidivism will ease the financial burden on local, 

State, and Federal prison systems. I can provide some other State 

evidence after the hearing, if you like. 

Ms. HERSETH SANDLIN. Yes, please. Well thank you all. I appreciate your testimony, and we will continue to work with you for additional information as we examine all of these issues even more 

closely. Again, thank you for your patience and for answering our 

questions, and for your service to our Nation’s veterans and your 

service to our country. Thank you for being here and traveling a 

distance, as some of you have done. 

Now I would like to invite our third panel to the witness table. 

Joining us on our third panel of witnesses is the Honorable Charles 

Ciccolella, Assistant Secretary for Veterans’ Employment and 

Training, U.S. Department of Labor; the Honorable Scott Bloch, 

Special Counsel for the U.S. Office of Special Counsel; and Mr. 

Keith Pedigo, Associate Deputy Under Secretary for the Office of 

Policy and Program Management, Veterans Benefits Administration, the U.S. Department of Veterans Affairs. I welcome back all 

of you to the Subcommittee. We look forward to hearing from you 

and posing some questions based on your written statements that 

have been made part of the record as well as some of the discussion 

of the prior two panels. Secretary Ciccolella, thank you as always 

for being here, you are recognized for 5 minutes. 

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STATEMENTS OF HON. CHARLES S. CICCOLELLA, ASSISTANT 

SECRETARY, VETERANS’ EMPLOYMENT AND TRAINING 

SERVICE, U.S. DEPARTMENT OF LABOR; HON. SCOTT J. 

BLOCH, SPECIAL COUNSEL, U.S. OFFICE OF SPECIAL COUNSEL; AND KEITH PEDIGO, ASSOCIATE DEPUTY UNDER SECRETARY FOR POLICY AND PROGRAM MANAGEMENT, VETERANS BENEFITS ADMINISTRATION, U.S. DEPARTMENT OF 

VETERANS AFFAIRS 

STATEMENT OF HON. CHARLES CICCOLELLA 

Mr. CICCOLELLA. Well thank you very much, Madam Chair, and 

Congressman Boozman. Thank you very much for holding this 

hearing. I will confine my comments to the Incarcerated Veterans 

Transition Program and the Demonstration Project for Referral of 

certain USERRA cases, Federal-sector USERRA cases to the Office 

of Special Counsel. 

With regard to the Incarcerated Veterans Transition Program, 

that is a program that targeted veterans who were preparing to 

leave prison. The program ran from 2004 to 2006, so it ran for 

three fiscal years. During the demonstration project, about 4,100 

incarcerated veterans were assessed. Of those, 2,191 were actually 

enrolled into the Incarcerated Veterans Programs. We had seven 

demonstration programs around the country. And the entered employment rate for them was 54 percent, which I think is pretty 

good. The cost per placement about $4,500, and that sure is a lot 

cheaper than the $22,000 to keep them in prison. Plus, I mean, you 

are rebuilding lives and cutting down on recidivism. 

The demonstration program showed positive results. It connected 

veterans not only to employment, but also to their veterans healthcare benefits, to discharge upgrades, and to better preparing them 

to avoid recidivism. So that is a very positive program in that regard. And one of the other benefits of the program is we trained 

a whole bunch of disabled veteran outreach specialists and local 

veteran employment representatives, LVERs and DVOPs, about 

124 of them. And they are still doing that sort of work, even though 

we do not have the demonstration programs still going on. They 

are doing it with the Homeless Veterans’ Reintegration Programs 

(HVRPs), the homeless vet programs, and right out of the one stops 

as well. 

I would also say that the program was a joint effort. It is a joint 

effort with DOL and the Department of Veterans Affairs, as well 

as the Department of Justice’s Department of Corrections and that 

is the only way this program would work. So if it is authorized, not 

reauthorized, if it is ever authorized again there has got to be that 

partnership if we want it to work. 

Congress passed the Veteran Benefit Improvement Act in 2004. 

That required the Secretary of Labor and OSC to engage in the 

USERRA demonstration program. During the demonstration program, about 693 cases Federal sector USERRA claims were received and 312 went over to OSC. I think the demonstration program was very useful. Today VETS and OSC have a much closer 

working relationship. Staff still meet every 30 days and discuss 

current, relevant issues and the level of cooperation, in my view, 

has never been higher. Plus, Government Accountability Office did 

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a review of this demonstration program and made some pretty good 

recommendations with regard to the administrative and housekeeping way we handle cases. And a couple of those recommendations were substantive, especially the recommendation piece about 

making sure that all these veterans are notified of their rights to 

referral. We have implemented all of those recommendations and 

they were very useful. 

As I said I think the demonstration program was very, very useful. I also think it served its purpose. And I believe that VETS is 

better prepared today to handle all of the USERRA cases. That 

concludes my oral statement. I think I am under the 5 minutes. I 

have about 31⁄2 there. So I will shut up. 

[The prepared statement of Hon. Ciccolella appears on p. 51.] 

Ms. HERSETH SANDLIN. I am afraid an earlier comment had a 

chilling effect. I did not mean for that to happen. Mr. Bloch, you 

are now recognized. Thank you, Secretary Ciccolella. Mr. Bloch. 

STATEMENT OF HON. SCOTT BLOCH 

Mr. BLOCH. Thank you, Madam Chairman, Ranking Member 

Boozman. I am Scott Bloch, Special Counsel of the United States 

and head of the U.S. Office of Special Counsel. Thank you for the 

opportunity to provide my perspectives on the enforcement of 

USERRA. The protections the statute provides have not expired. 

However, there has been a significant change in how it is enforced 

for Federal employees who are also members of the National Guard 

and Reserve. 

U.S. military members understand their obligations to their 

country and serve when called. Unfortunately, not all employers 

understand their obligations to employees. Some servicemembers, 

mostly members of the National Guard and Reserve, return from 

active duty only to be turned away by their civilian employers. It 

is almost as though they were told, ‘‘Welcome back. You are fired.’’ 

It happens even when the employer is the same Federal Government that mobilized the servicemember. About 25 percent of the 

National Guard and Reserve are Federal civilian employees. 

USERRA has protected returning servicemembers turned away 

by their civilian employers or denied their rights and benefits since 

1994. This law provides a strong enforcement mechanism for Federal employees giving jurisdiction to the Merit Systems Protection 

Board. A complaint under USERRA may be made to the Department of Labor Veterans’ Employment and Training Service, DOL 

VETS. If the employer is a Federal agency and DOL VETS cannot 

resolve the claim, the complainant may request referral to OSC for 

possible prosecution. While USERRA expanded OSC’s role as protector of the Federal Merit System, it established a bifurcated process. DOL VETS investigates and then the matter may be referred 

to OSC for prosecution. 

I established OSC’s USERRA unit and we filed our first prosecution that OSC had filed in its history in June 2004. It had taken 

about 2 years for that particular case to come to us, after a Ph.D. 

Nursing Supervisor, fired after lengthy service in VA hospitals, was 

told she had no case. Her supervisor had said, ‘‘We can’t have these 

people going on military leave.’’ We obtained all of her back pay for 

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her with interest, and private attorneys fees. But after a 3-year 

struggle for justice her career was over. 

I have filed five USERRA prosecutions since becoming the Special Counsel and we have obtained full corrective action in four of 

those cases. For example, an Army Corps of Engineers employee 

entered the Air Force, then returned to the Corps and was denied 

his job. He filed a complaint and was told he had no case. His case 

was referred to us a year after his initial complaint and months 

after his requested referral. We determined the Army Corps had 

violated his rights and filed suit, getting him $85,000 in back pay 

and his job back. 

In 2004, Congress established a USERRA demonstration project. 

This directed about half the Federal employees who have USERRA 

claims directly to OSC to demonstrate the potential advantages of 

having a single agency handle Federal employee claims. GAO evaluated the demonstration project and found that DOL VETS did not 

always tell servicemembers they could come to OSC when their 

case had been rejected. Also DOL VETS calculations did not include the time a case sits in a regional solicitor’s office, sometimes 

up to a year. 

GAO’s evaluation was provided to Congress days before the August 2007 recess. With the demonstration project set to expire September 30, Congress had little time to consider amending 

USERRA, although it was extended to December 31. But OSC lost 

the authority to accept direct claims made by Federal employees 

under USERRA. 

OSC still receives cases when USERRA claimants request DOL 

VETS referral that it cannot resolve, and cases that contain allegations of violations of prohibited personnel practices, which come 

under our jurisdiction. However, USERRA enforcement capacity 

has been lost, and just when we may expect more troops to be returning home. 

We have obtained corrective action in 25 percent of the USERRA 

cases under the demonstration project. The demonstration project 

showed that Federal claimants who come to OSC get significantly 

better and faster service and aggressive prosecution. We believe 

that OSC’s readiness to be the single point of contact for Federal 

employees has been validated. As the Federal personnel law specialists, we believe that USERRA should require that all claims by 

Federal employees be made directly to OSC. And I look forward to 

your questions. 

[The prepared statement of Hon. Bloch appears on p. 54.] 

Ms. HERSETH SANDLIN. Thank you very much, Mr. Bloch. Mr. 

Pedigo, thank you for being here again. We look forward to hearing 

from you, too. You are recognized. 

STATEMENT OF KEITH PEDIGO 

Mr. PEDIGO. Madam Chairwoman and Members of the Subcommittee, I appreciate the opportunity to be here this afternoon 

to discuss expiring VA programs. Under the provision of 38 U.S.C. 

section 3707, VA was authorized to conduct a demonstration 

project to guarantee traditional adjustable rate mortgages during 

fiscal years 1993 through 1995. Congress did not extend this authority when it expired. The Veterans Benefits Improvement Act of 

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2004 reinstated VA’s authority to guarantee traditional ARMs 

through 2008 and authorized a demonstration project to guarantee 

hybrid ARMs through fiscal years 2004 through 2008. Traditional 

ARMs are mortgages in which the interest rate adjustments may 

occur on an annual basis. The limits on such adjustments vary 

across non-VA products. In contrast, VA guaranteed ARMs limit 

the annual interest rate adjustments to a maximum increase or decrease of one percentage point and to a maximum of five percentage points over the life of the loan. Hybrid ARMs are mortgages 

having an interest rate that is fixed for an initial period of more 

than 1 year and can adjust annually thereafter. Adjustments are 

indexed to various indices and, generally speaking, there are no 

lifelong limits on interest rate increases. In contrast, for VA guaranteed hybrid ARMs, for which the initial contract interest rate remains fixed for less than 5 years, adjustments are limited to a 

maximum increase or decrease of one percentage point annually 

and to a life-of-loan interest rate increase of five percentage points. 

For VA hybrid ARMs, for which the initial contract rate remains 

fixed for 5 years or more, annual adjustments are limited to 2 percentage points and life-of-loan increases are limited to 6 percentage 

points. Since VA adjustable rate mortgages are underwritten with 

the same stringency as VA fixed rate loans, they are not considered 

subprime products. 

VA’s authority to offer veterans the option of obtaining VA ARMs 

and hybrid ARMs expires September 30, 2008. If extended, we estimate that this authority would cost $3 million in fiscal year 2009 

and $14 million over 10 years. At this time, we do not object to 

making the provisions of 3707 and 3707a permanent, provided 

Congress identifies offsets for the increased direct spending. 

Individuals eligible for educational assistance programs administered by VA may use their benefits in approved on-the-job training 

and apprenticeship training programs. Under the various GI Montgomery Bills, the monthly educational assistance allowance for 

such training is calculated as a percentage of the full-time monthly 

institutional benefit. Education assistance allowances under these 

programs are paid at the rate of 75 percent for a full time student 

for the first 6 months, 55 percent during the second 6 months, and 

35 percent for the remaining months of the program. Under the 

Dependents Educational Assistance Program, the law sets forth declining rates for such allowances for the various 6-month increments. 

Public Law 108–454 provided for a temporary 10 percent increase in the amount of benefits payable for pursuit of OJT and apprenticeship programs for the period October 1, 2005, through December 31, 2007. As of January 1, 2008, payments for OJT and apprenticeship programs reverted to their previous levels. This is the 

first time VA has been required to reduce a benefit by a significant 

level during an individual’s training. We believe the higher monthly training allowance that the supplement provides is a significant 

incentive for individuals to accept training positions that might not 

otherwise be taken by them. We recommend reinstatement of the 

benefit rate increase and support making the increase permanent. 

We defer to the Department of Defense regarding OJT and apprenticeship rates under the Montgomery GI Bill for Select Reserve 

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as it is a program administered by that Department under Title 10 

of U.S.C. While the Reserve Educational Assistance Program is 

also administered under Title 10, its rates are tied to the Montgomery GI Bill for active duty rates. Therefore, a rate increase or 

decrease to the Montgomery GI bill active duty rate will have the 

same corresponding effect on rates payable under the Reserve Educational Assistance Program. 

Madam Chairwoman, this concludes my testimony. I greatly appreciate the opportunity to be here today and look forward to answering any questions you may have. 

[The prepared statement of Mr. Pedigo appears on p. 58.] 

Ms. HERSETH SANDLIN. Well, thank you to all of you for your testimony. We didn’t hear the annoying buzzers go off but we do have 

a pending vote. We do have a few minutes where Mr. Boozman and 

I would like to pose some questions. So as not to shortchange your 

time, if it is your preference, because it is five votes and that can 

take much longer than we sometimes expect, I know I will and Mr. 

Boozman and other Members may ultimately have more questions 

we would like to submit to you in writing to follow up on. I think 

that would certainly be a benefit if we had more time for the other 

folks from the other panels to hear your responses to some of our 

questions. We hope that we will be able to work together on this 

to find the best approach to addressing some of the problems that 

we have seen. 

Mr. Bloch, I would like to start with you. In addition to your recommendation that we amend USERRA to have OSC handle all 

claims from Federal employees, what is your take on the proposition of also amending USERRA to provide for injunctive relief, in 

light of the example that you gave of the woman who was a Ph.D. 

and a nurse at the VA, and the 3 years it took, or was most of that 

time and then delay in part because it was not referred to you in 

a timely fashion? 

Mr. BLOCH. Thank you, Madam Chair. Yes, the delay was both 

a function of the time it took to get referred over, and I cannot tell 

you the exact time, but I seem to recall it was about a year, and 

then also the time it took in our agency before I took over as the 

Special Counsel. And when I took over, one of my first priorities 

was to get a fire lit under what then did not exist as a USERRA 

unit. And we made that a high priority and filed that prosecution 

the day I testified before the Veterans’ Affairs Committee of the 

House in June of 2004 we moved forward with that. 

The specific answer to your question about injunctive relief, this 

would be very helpful. We have that now for prohibitive personnel 

practices, we can get a stay of the intended personnel action, or the 

failure to reemploy in the case of USERRA. And that is an extremely powerful tool because once you get that employer to take 

that employee back, that is usually the case, it is over. They are 

going to settle. It is going to get taken care of. If they are hanging 

out there unemployed, the employer has all the power. And so I 

think that would be a tremendous leveler. 

Ms. HERSETH SANDLIN. Well I appreciate your perspective on 

that. Regarding your recommendation to amend USERRA so that 

OSC can take these claims, based on what you said, has it worked 

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effectively under you because there has been a dedicated unit within OSC, right? 

Mr. BLOCH. Yes, ma’am. 

Ms. HERSETH SANDLIN. Okay. 

Mr. BLOCH. We have made it a priority to enforce USERRA aggressively and to file prosecutions, and also to advertise in the 

media—— 

Ms. HERSETH SANDLIN. Right. 

Mr. BLOCH [continuing]. About the effect of USERRA and when 

people do not do the right thing, we want the world to know it. 

Ms. HERSETH SANDLIN. Okay. Mr. Boozman. 

Mr. BOOZMAN. In his testimony Mr. Tully cited significant differences in how he felt like his firm was doing in the performance 

of getting some of these things resolved versus the agency. Can you 

comment on that, Mr. Secretary, and Mr. Bloch? 

Mr. CICCOLELLA. Yeah, not exactly. What do you want to know? 

Mr. BOOZMAN. Well, what I was saying was that, Mr. Tully—— 

Mr. CICCOLELLA. Yes. 

Mr. BOOZMAN [continuing]. In his testimony testified that his 

agency was performing quite well—— 

Mr. CICCOLELLA. Yes. 

Mr. BOOZMAN [continuing]. In regard to getting some of these 

things rectified. 

Mr. CICCOLELLA. Oh, I see. 

Mr. BOOZMAN. As opposed to the agency’s. Can you comment on 

that? 

Mr. CICCOLELLA. Well sir, I certainly do not object to private attorney companies representing servicemembers with regard to their 

USERRA claims. I think what, from my point of view, you know, 

servicemembers today have a choice. They can come to us through 

ESGR or they come directly to the Department of Labor. Under the 

demonstration, they could come directly to the Special Counsel or 

they can go to a private attorney. I think you have to realize that 

we handle cases nationwide. We have 115 investigators. They are 

well trained and they deal with not only USERRA, but all veteran 

employment issues. They are well trained on USERRA, and we 

spent a lot of time doing that. 

Now there are advantages to having a small universe of folks 

doing USERRA as OSC does. But I think we are more likely to go 

face to face with an employer and get the information or issue a 

subpoena or whatever we have to do. But the point is that troops 

have a choice. And if they decided they want to use a—exercise a 

private course of action, they can certainly do that. And I do not 

mind it as long as people in those firms are not fleecing servicemembers. 

Mr. BLOCH. Yes, Congressman, I think that Mr. Tully has the 

freedom that I used to enjoy as a private attorney in a law firm, 

and it kind of got my juices flowing listening to him, because there 

is a slight difference in the tools that he has that we may not have 

enabling him to freely prosecute. We have to receive cases from 

DOL VETS, we are bound by the statute. 

Now there is a slight difference in the content of most of the 

cases, I think, that Mr. Tully is talking about in this battery of 

1,800 cases versus the ones that Mr. Ciccolella and I were handling 

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in the demonstration project. Most of the demonstration project 

cases are what we would call a complex employment case, where 

you have a series of facts about the employment, about notice, 

about redeployment, about whether the individual’s job still exists, 

things of that nature. And so it requires testimony, investigation, 

it might have subpoenas, it might require filing a lawsuit. A lot of 

the cases I think Mr. Tully is handling which, you know, as a private attorney, I would be very desirous of getting, are called 

Butterbaugh cases. And these cases many of them, you know, over 

a thousand, I believe, of their cases involve small amounts of back 

pay for Federal military leave, paid leave that was wrongfully 

taken from employees back to 1980 under a case called 

Butterbaugh v. Department of Justice, a 2003 Federal circuit case. 

This generated a slew of litigation which private attorneys can 

bring on behalf of many, many people and get several hundred dollars back, maybe a thousand, couple thousand dollars back in some 

cases. But this is not what we handle mainly. We get a few of 

those, a very small number. 

The cases we have are complex and some of them may involve 

prohibitive personnel practices as well as some unpaid leave or 

paid leave that was taken away wrongfully. And so there is a very 

different kind of complexity involved there. 

Mr. BOOZMAN. Thank you very much and thanks to all the panels. This has been a very, very good hearing, Madam Chair, I appreciate your leadership on it. And I have learned a lot. 

Ms. HERSETH SANDLIN. Well, thank you Mr. Boozman. I have one 

more question before we have to run down for votes. Mr. Ciccolella, 

you had said that you thought the demonstration project served its 

purpose and Mr. Bloch just gave us some additional detail and description of the types of cases that were intended to be referred in 

the demonstration project. Do you feel like it served its purpose 

and now the Department of Labor is better positioned to handle the 

cases? I assume that is contingent upon Congress providing you 

sufficient staff and resources in light of the witness on the second 

panel who is somewhat concerned about perhaps an increased caseload with no end in sight to increases in that caseload. I know we 

are not talking about the budget today. 

Mr. CICCOLELLA. Yes. 

Ms. HERSETH SANDLIN. I would imagine that if you think you are 

better positioned based on what we have learned from the demonstration project that we have to make sure that we have the staff 

resources and the training to do that if indeed, after further discussion we choose to continue to have DOL VETS handling these cases 

versus some of the other proposals we have heard today. 

Mr. CICCOLELLA. Well thank you very much. I am totally supportive of what you said. You have to have the resources to do 

these cases. I think under the present circumstances with about 

1,300 cases this year, I think we have the resources to do that. 

Where I think we come up short is in terms of whether or not it 

would be useful to have national USERRA campaign that would 

help employers better understand the law. That obviously would be 

a very useful thing. But I think we do have the resources to handle 

the majority of the cases now. 

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I would like to go back to Scott’s answer to your question. I think 

what he had to say in his answer to Mr. Boozman’s question was 

very, very well done. 

Ms. HERSETH SANDLIN. Well, and I do appreciate that command. 

I echo Mr. Boozman’s comments about how insightful your testimony, our witnesses from the prior panel’s testimony have been 

and the follow up that we look forward to doing with all of you. 

Most of the questions I will be submitting to you, Secretary 

Ciccolella, are going to be responses from DOL to the GAO report 

of July 2007. Again, I appreciate the ideas that you shared, and for 

the recommendations that you have made. I want to thank staff on 

both sides of the aisle here in the Subcommittee for the hard work 

that they have done in working with all of you to prepare for this 

hearing. And of course the hard work that we will be undertaking 

to follow up on necessary action that we think will be, and should 

be taken. Again, thank you for your insights, and your testimony. 

We value it very much. The hearing stands adjourned. 

[No questions were submitted.] 

[Whereupon, at 3:57 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

Prepared Statement of Hon. Stephanie Herseth Sandlin, Chairwoman, 

Subcommittee on Economic Opportunity 

As many of you know, a recent Associated Press article dated February 8, 2008 

highlighted the troubles encountered by recently released servicemembers in obtaining employment. The article went on to cite an Employment Histories Report published for the U.S. Department of Veterans Affairs which concludes more can be 

done by the public and private sectors to ensure servicemembers are successful in 

obtaining employment after their service to our country. Furthermore, the article refers to a U.S. Department of Labor’s USERRA Annual Report to Congress which 

cites a high rate of USERRA complaints by returning Guard and Reserve forces. 

I know I am not alone when I say that this article raises serious concerns about 

the problems encountered by many of our constituents. Today’s hearing gives us the 

venue to reevaluate several programs that may help them succeed in life after the 

military. These programs include the: Incarcerated Veterans Transition Program; 

Office of Special Counsel and U.S. Department of Labor’s—Veterans’ Employment 

and Training Service Demonstration Project; Apprenticeship and On-The-Job Training benefit levels; and Adjustable Rate Mortgage demonstration projects. 

I look forward to working with Ranking Member Boozman and Members of this 

Subcommittee to continue to improve readjustment benefits available to all servicemembers and veterans. 

f 

Prepared Statement of Hon. John Boozman, Ranking Republican Member 

Subcommittee on Economic Opportunity 

Good afternoon Madam Chairwoman and I thank you for holding this important 

hearing on expiring authorities in both VA and the VETS. 

When Congress creates new programs within the Federal Government it is common to include a ‘‘sunset’’ that requires Congress to reauthorize the program a few 

years after the enactment of the law for review. 

This is an important management tool that allows us to review the program and 

then determine if it should continue. Sunsets are also the result of not having sufficient PAYGO offsets to make a program permanent. 

In general I believe there is always room for improvements to any program and 

each also probably has its faults. That is why I look forward to hearing the suggestions of our witnesses on how we can do this. 

I would like to commend Mr. Tully for his testimony. While I have not had time 

to digest his suggested amendments to USERRA, his is a good example of how to 

write effective testimony. He lists specific problems, cites the related U.S. Code and 

offers specific recommendations on how to solve these problems. I thank him for the 

thoroughness with which he has addressed the issue. 

Once again I thank you Madam Chairwoman for holding this hearing and I look 

forward to the testimony of our witnesses. I yield back. 

f 

Prepared Statement of Mathew B. Tully, Esq., Founding Partner, 

Tully Rinckey PLLC, Albany, NY 

Executive Summary 

Since the tragic events of September 11, 2001 and our country’s involvement in 

Afghanistan and Iraq, millions of troops have deployed overseas in the interest of 

protecting our Nation and advancing others. Over seven years of war has caused 

record high deployment rates of citizen soldiers, who have the responsibility of 

maintaining employment while waiting for their call to serve our country. Many of 

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these soldiers, who struggle daily to balance their dual military and civilian lives, 

have returned home to find that same contract of balance not upheld by their employer. As a result, complaints of military leave violations have been on the rise 

since 2002 as countless employers have violated the rules laid out in the Uniformed 

Services Employment and Re-employment Act (USERRA). 

It is the responsibility and duty of the federal government to provide these esteemed service members with the best possible resources to combat the employment 

problems they face back home. From the Department of Labor, Veterans’ Employment and Training service to the Office of Special Counsel, the government has 

failed in this responsibility. These Federal Agencies have proven to be only a maze 

of bureaucracy and red tape for veterans to navigate upon their return home. Instead of being provided with the immediate assistance they require to transition 

back into civilian life, the program has held claims in review for years, often encouraging the claimants to withdraw their allegations or simply dismissing them and 

then having a private attorney get involved to recover damages in the six figures. 

The men and women who have so bravely served our country deserve a system 

that will be responsive and efficient. The only way to have effective enforcement of 

USERRA is through proper representation, which has not been seen with the Department of Labor and the Office of Special Counsel. Through the aggressive and 

successful representation by private attorneys, allegations of discrimination under 

USERRA are prosecuted in a timely manner, giving military personnel the respect 

they deserve in return for protecting our country. 

To improve the effectiveness of USERRA, several initiatives have been proposed. 

These initiatives include: referring USERRA claims to privately retained attorneys, 

mandating attorneys’ fees when a USERRA allegation is proven, allowing judges to 

award liquidated, compensatory and punitive damages, and giving the Office of Special Counsel disciplinary authority so that federal supervisors are held personally 

accountable for their violations of USERRA. 

These recommendations will provide military personnel with an outlet to effectively pursue, prosecute and protect the rights they have earned through their service and are the first step toward eliminating claims of military discrimination. 

Mr. Chairman and distinguished members of the committee, I am honored to appear before you today to speak about my experiences with the Department of Labor, 

Veterans’ Employment and Training Program Claim Referral Program to the Office 

of Special Counsel. As a Major in the New York Army National Guard and a veteran of Operation Iraqi Freedom, the matters of today’s hearing are of particular 

importance to me. 

In order for you to better understand my connection to the expiring VA program 

of discussion today, I would like to provide you with some information about myself. 

From 1991 to 1995, I was enrolled in the Reserve Officer Training Corp (ROTC) at 

Hofstra University with my current law partner, Greg Rinckey. In May 1995, I was 

commissioned as a Second Lieutenant in the United States Army and I found myself 

unemployed while awaiting the Officer Basic Course. I applied for several law enforcement positions with the Federal Bureau of Prisons and was hired on August 

20, 1995. In early October of the same year, I was activated to attend military 

schooling and remained on active duty until April 1998. 

During the entire time that I was on active duty, I was placed on leave without 

pay status under USERRA by the Bureau of Prisons. Almost immediately upon my 

return from active duty, I was subjected to intentional violations of USERRA by my 

superiors as a result of my military service. The discrimination varied from receiving poor performance evaluations during the time I was away performing military 

duty, which is a period of time that should not be evaluated, to being publicly ridiculed for making the Bureau of Prisons fill my position with overtime employees 

and ‘‘Blowing the Budget’’. 

Throughout late 1999 to early 2000, I filed numerous complaints with the Merit 

Systems Protection Board (MSPB) against the Bureau of Prisons alleging violations 

of USERRA. I pursued this avenue after being told, repeatedly, by Labor Law attorneys that going through the Department of Labor would only result in delays. This 

was confirmed by various members of my military unit, who had gone through employment issues as well. As a result, I chose to exercise my rights under USERRA 

and to file my allegations of USERRA violations directly with the MSPB. Very 

shortly after the claims were filed, the Bureau of Prisons conducted an internal investigation. It can be assumed that the investigation found merit to my allegations, 

as I was offered a substantial cash settlement and paid leave to withdraw my claims 

and resign from employment with the agency. 

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The large sum of money and extended paid time off were too enticing to turn 

down, given my recent enrollment in law school. As such, I entered into a settlement agreement with the agency, which contains a confidentiality clause and prevents discussing the details of the case. 

While out on extended paid leave pursuant to the agreement, I began looking for 

other employment opportunities. Without many prospects on the horizon, I sought 

a vacant position at another Bureau of Prisons institution in August 2000. In late 

2000, I found out that, once the institution became aware of my prior protected 

USERRA activities, they refused to process my application for employment. 

While I had already found employment as a paralegal with Morgan Stanley, I was 

deeply disturbed that I was being subjected to further retaliation by the Bureau of 

Prisons only months after they had entered into a settlement agreement with me. 

It was my understanding that this agreement reflected their implicit acknowledgement of supervisory employees violating USERRA. As a result, I filed another 

USERRA complaint, which continued for many years against the Department of 

Justice and alleged, inter alia, that my application for employment was not processed in retaliation of my prior protected USERRA activities. 

In the meantime, on September 11, 2001 my office on the 65th floor of the World 

Trade Center came under attack. After September 11th, I served with the New York 

Army National Guard at Ground Zero for many weeks. In May 2002, I graduated 

from law school and was admitted to practice law before the New York State Courts. 

In January 2003, I sold my cooperative apartment overlooking New York Harbor 

and moved with my wife Kimberly to our ski condo in upstate New York. It was 

at that point that I opened a law firm out of the back bedroom of my house. Some 

of my earliest clients were colleagues from the Bureau of Prisons, who asked me 

to represent them in employment matters, including allegations of EEO violations, 

whistle blowing violations and disciplinary actions. 

In February 2004, my current law partner and long time friend, Greg Rinckey, 

returned from active duty and we entered into a law partnership together. Throughout 2004, the number of cases we received from federal employees increased so dramatically that we hired several associates to accommodate the influx of clients. 

In June of 2005, I received orders to report to Iraq with the 42nd Infantry Division. On July 30, 2006, I reported to Fort Drum, New York for deployment training 

and was subsequently deployed to Iraq, where I served as the Division Chief of Operations. This deployment, as determined by the United States Small Business Administration, resulted in my law firm suffering financial losses in the amount of 

$173,000.00. The Small Business Administration provided my firm with a Disaster 

Assistance Loan for the above-mentioned amount to help recover from my deployment. In addition to the financial suffering, I was also injured and have subsequently been rated by the United States Department of Veterans Affairs to be 60% 

disabled. 

On March 21, 2007, nearly seven years after I originally filed my complaint with 

the MSPB alleging that the Bureau of Prisons retaliated against me by failing to 

process my application, the New York Regional Office of the MSPB awarded me 

nearly $300,000.00 in back pay and benefits. The Board also ordered the Bureau 

of Prisons to appoint me, effective August 22, 2002, to the position of Correctional 

Officer. The initial decision of the Board became final on April 5th, 2007, when neither the Agency nor I appealed. As of this date, the Bureau of Prisons has not reinstated me to the position of Correctional Officer, nor has it timely paid me the back 

pay, interest and accrued leave that I am owed. I believe, as evidenced by the 

MSPB’s decision in my favor awarding me substantial back pay as well as the original settlement agreement with the Bureau of Prisons in 2000, that all of my allegations of misconduct by Department of Justice officials have been vindicated. 

Due to my personal experiences as a victim of USERRA discrimination as well 

as being a member of the New York Army National Guard and an Iraqi War Veteran, I have over the past several years built a considerable law practice, primarily 

representing others who have been victimized by their employers in violation of 

USERRA. 

As such, I have dealt with the Department of Labor extensively, on both a personal and professional level. While the overall focus should be to eliminate discrimination against military personnel as a whole, the first step toward achieving that 

goal is to maintain a harsh and critical review of USERRA complaints. 

FROM FEBRUARY 8, 2005 THROUGH DECEMBER 30, 2006 

According to the U.S. Government Accountability Office, report number GAO–07– 

907, during the time period February 8, 2005 to September 30, 2006 the Department of Labor investigated 166 allegations of USERRA discrimination by federal 

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employees. During that same time period, the Office of Special Counsel investigated 

269 allegations for USERRA discrimination. I would point out that, during the same 

time, my law firm not only investigated but prosecuted before the MSPB a total of 

1,802 cases. That represents more than four times the combined number of cases 

that the Department of Labor and the Office of Special Counsel handled. 

I would also point out that, on page 9 of the GAO report, it listed 189 employees 

with the Department of Labor who are responsible for investigating USERRA complaints (my firm has under 20). On page 16 of the GAO report, the Department of 

Labor said only about 7% of those 166 cases were referred for prosecution. That 

means only approximately 12 cases during the time period relevant to the GAO report was a DOL case actually prosecuted. By contrast, in a July 6th, 2007 response 

to the GAO report, the Office of Special Counsel was proud of its 25% corrective 

rate, which translates into 67 times during the relevant time period that a federal 

employee received corrective action from the Office of Special Counsel. 

I find these numbers to be astonishing, given my firm’s experience and success 

in helping federal employees win USERRA claims before the MSPB. I would point 

out that, of the 1,802 cases prosecuted by my firm during the relevant time period, 

our clients received the remedy they sought in approximately 73% of the cases. That 

translates into a success rate nearly three times that of the Office of Special Counsel and at least ten times better than the Department of Labor. 

Further, I would respectively point out that the GAO report referenced above does 

not provide the proper context as to how a claim is investigated to any of the Committees it reported to. Specifically, I would note that, on page 38 of the report, it 

admits that it did not contact any private law firm or attorneys that specialize in 

USERRA litigation. Had it contacted my firm or the handful of others who concentrate their practice in USERRA enforcement, they would have learned that very 

few service members who believe they are a victim of USERRA discrimination go 

to the Department of Labor. In my opinion, the Department of Labor has developed 

a reputation of poor investigative work and poor use of investigative tools, such as 

ordering subpoenas and sworn testimony by employers. Further, the non-responsive 

nature of investigators and outrageously long processing times have only caused additional decline in the agency’s status. 

I would also point out that the GAO report incorrectly shows figures describing 

how USERRA claims are processed. I note on page 8 of the report that it fails to 

list the retention of a private attorney for the investigation and prosecution of 

claims. I believe that it is important to address that private attorneys, like myself 

and the others within my firm, handle many more cases per year than the Department of Labor, the Department of Justice and the Office of Special Counsel combined. 

THE THREE METHODS OF BRINGING A USERRA COMPLAINT 

A. Department of Labor 

In my opinion, the Department of Labor has proven time after time that they do 

not aggressively investigate allegations of USERRA discrimination or retaliation. 

This is evidenced by the low number of Reservists and National Guardsman who 

go to the Department of Labor for help. I find it obscene that the Department of 

Labor has 189 personnel assigned in various capacities to investigate USERRA violations and yet my firm consistently investigates more allegations of USERRA violations with an astronomically higher corrective rate. 

As such, committee members and others on Capital Hill should consider abolishing this program and shifting the resources going to DOL VETS to the Department of Defense, Employers’ Support of the Guard and Reserve (ESGR). ESGR 

could handle all of the educational briefings that DOL Vets claims it does. In fact, 

I believe the Federal Government could save millions of dollars over the next decade 

by simply abolishing the Department of Labor’s involvement in USERRA enforcement and mandating the award of attorneys’ fees and litigation costs when a victim 

successfully proves his or her case of discrimination or retaliation. 

B. Office of Special Counsel 

In 2000, the Demonstration Project fundamentally altered the manner in which 

USERRA claims are processed by granting the Office of Special Counsel (OSC) the 

authority to receive and investigate claims when the filing servicemember had a Social Security number ending with an odd integer or the matter deals with a violation of veterans’ preference rights under 5 U.S.C. § 2302(b)(11), effectively dividing 

USERRA review between VETS and OSC. VETS investigates all other claims and 

remains responsible for referring unresolved claimant matters to OSC or the Department of Justice (DOJ) at the election of the filing claimant. 

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While the Office of Special Counsel has a more successful history of investigating 

and prosecuting violations of USERRA than the Department of Labor, they have 

still failed to provide efficient and timely representation for claimants. Their success 

rate is sub par and average processing time is delayed beyond excuse. The inadequacies of the appeal process cannot be corrected by merely implementing a DOL 

VETS referral system. The tangible effect of which would merely result in an additional bureaucratic layer, which will increase the processing time of USERRA complaints. 

Moreover, the referral system failed to provide remedies for those claimants who 

are dissuaded from pursuing their claim with OSC. My law firm is consistently contacted by claimants who were encouraged to withdraw their claims from the OSC 

or have had their cases held up in review only to see them dismissed. I am glad 

to hear that the demonstration project with OSC ended in January 2008. 

C. Private Law Firms 

Currently, Tully Rinckey is the largest firm in the country that handles extensive 

numbers of USERRA cases. We handle USERRA cases not only against the Federal 

Government, but against states and private employers as well. Our track record of 

success is well documented and has resulted in the firm receiving an average of 

forty-five new USERRA allegations per week. 

Despite the dramatically higher number of cases we investigated during the period of time relevant to the GAO report, we also had a substantially higher success 

rate in comparison to the Department of Labor and Office of Special Counsel. While 

the ultimate goal should be to end discrimination against members of the National 

Guard and Reserves, these numbers clearly indicate that the best practice for handling matters of military discrimination is through private attorneys, not government entities. 

If this Committee wants to protect today’s military personnel and ensure that allegations under USERRA are properly prosecuted and investigated, it must not limit 

its research to the Department of Labor and the Office of Special Counsel. It must 

also focus on the overwhelming success of persons who retain private attorneys. 

THE SOLUTION 

Not only am I going to provide this Committee with my opinions, observations, 

and thoughts, but also common sense solutions that will achieve Congress’ intent 

of making the Federal Government the model employer, while dramatically reducing 

the number of people discriminated against because of their military service. In the 

absence of the referral program, these recommendations will provide an efficient 

and effective system of representation for USERRA claimants. My suggestions are 

as follows: 

1. Make attorneys’ fees mandatory when a victim proves his/her allegations. 

2. Give USERRA teeth by allowing judges to award liquidated, compensatory and 

punitive damages. 

3. Give the Office of Special Counsel disciplinary authority and make federal supervisors personally accountable for their violation of USERRA, as is provided 

under the Hatch Act. 

4. Implement strict deadlines for the processing and completion of USERRA 

claims. 

In order for the above suggestions to be implemented, USERRA must incorporate 

the following amendments: 

USERRA should be amended to mandate the payment of reasonable attorneys’ fees, expert witness fees and other litigation expenses where the 

claimant has procured an Order directing the employer to comply with 

the provisions of the statute after a hearing or adjudication. 

In a recent decision, the Court of Appeals for the Federal Circuit determined that 

while the MSPB may award attorneys’ fees and litigation costs to successful 

USERRA claimants, such awards are not mandatory under 38 U.S.C. § 4324(c)(4). 

See, Jacobsen v. Department of Justice, 2007 U.S. App LEXIS 22412. The statute 

should be amended to specifically overrule this interpretation. 

The award of reasonable attorneys’ fees and litigation costs is par-for-the-course 

in virtually all other forms of employment discrimination and veterans’ benefits legislation. For example, 33 U.S.C. § 918 entitles Longshoremen and harbor workers 

to attorneys’ fees in successful employment discrimination and workers’ compensation claims. Similarly, whistleblowers and veterans discriminated against in violation of the Veterans Employment Opportunities Act are also entitled to an award 

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1See, 5 U.S.C. § 1221(g)(2); 5 U.S.C. § 3330c(b); 29 U.S.C. § 626; 29 U.S.C. § 216(b); 10 U.S.C. 

§ 2409; 12 U.S.C. § 1975; 14 U.S.C. § 425; and 16 U.S.C. § 3117. 2See, GAO–06–60, October 2005; GAO–07–259; and, GAO–07–907, July 2007. All of these reports elucidate the ineptitude with which the DOL and DOJ administer USERRA. 3 Id. 

4See, Final Order dated March 7, 2007. 

of attorneys’ fees and litigation costs, just to name a few.1 Congress clearly intended 

to ensure that veterans who have meritorious employment discrimination complaints will not be deterred from bringing such claims due to costs associated with 

the effective assistance of counsel. 

This intent must be stated in an amendment to USERRA so that no deserving 

claimant will be forced to bear the burden of his or her own legal representation 

or worse, be deterred from bringing the claim due to economic hardship. Congress 

enacted USERRA to protect veterans from unlawful discrimination in their employment because of their military service. An essential aspect of that protection is ensuring that aggrieved Veterans have access to affordable, skilled and experienced 

legal counsel to successfully enforce their rights under USERRA. 

Furthermore, over the past two years, the GAO has conducted multiple investigations into the efficiency of USSERA enforcement.2 The reports unanimously conclude that the Department of Labor (DOL) and the Department of Justice (DOJ) are 

failing our service men and women in their administration of USERRA. The GAO 

found deficiencies in the manner in which both departments advised claimants, 

processed claims and enforced claimants’ rights.3

The current enforcement scheme and the program in question fail to provide adequately for victims of USERRA violations. Such a systematic failure to properly administer the provisions and protections of the Act cannot be justified. Under the circumstances, the only efficient and effective method of redress for victims of 

USERRA violations is representation by private counsel who will zealously pursue 

their claim. Given this fact, a mandatory award of attorneys’ fees is imperative in 

the interest of justice. No victim of a USERRA violation should have to endure two 

harms as a result of an unlawful employment practice, namely, the denial of a benefit of employment and the financial burden of enforcing his or her rights in the 

face of such a violation. 

With this in mind, I propose that 38 U.S.C. § 4324(c)(4) be deleted and replaced 

with the following language: 

(c)(4) If the Merit Systems Protection Board determines as a result of a 

hearing or adjudication that the claimant is entitled to an order referred 

to in paragraph (2), the Board shall order the agency to comply with such 

provisions and award compensation for any loss of wages or benefits suffered by the individual by reason of the violation involved. A successful 

claimant SHALL be awarded reasonable attorneys’ fees, expert witness 

fees, and other litigation expenses. (Emphasis added). 

Similarly, I propose that 38 U.S.C. § 4323(h)(2), which governs the remedies available to State and private employees, be amended to read as follows: 

(h)(2) In any action or proceeding to enforce a provision of this chapter [38 

USCS §§ 4301 et seq.] by a person under subsection (a)(2) who obtained private counsel for such action or proceeding, the court SHALL award any 

such person who prevails in such action or proceeding reasonable attorneys’ 

fees, expert witness fees, and other litigation expenses. (Emphasis added.) 

These amendments are a cost-neutral and minimally restrictive method for 

achieving congressional goals. By mandating the payment of reasonable attorneys’ 

fees and litigation costs, the amendment will effectively overrule the prejudicial 

holding in Jacobsen and eliminate the barrier between aggrieved veterans and the 

legal counsel they need to adequately pursue their rights. It would also finally place 

USERRA on equal ground with other employment discrimination and Veterans’ benefits statutes, thereby effectuating the intent of Congress. This minor revision will 

provide veterans the best option for enforcing their rights, enabling them to retain 

private counsel and bypass the failed referral system. 

Moreover, the change will prevent malicious and detrimental agency action. By 

making attorneys’ fees a statutory benefit under the Act, we can prevent the malicious and injurious agency conduct, which occurred in Seitz v. Department of Veterans Affairs.4 In Seitz, the agency intentionally protracted the litigation, thereby 

increasing the amount of the claimant’s litigation costs and attorneys’ fees. On the 

eve of the hearing, however, the agency paid the claimant the disputed amount of 

damages and sought to moot the claim. As a result of the agency’s litigation tactics, 

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an award only in the amount of the claimant’s disputed damages was grossly insufficient to return the claimant to the Status Quo Ante. The Board ultimately concluded that the inappropriate conduct of the agency entitled the claimant to litigate 

the issue of attorneys’ fees. 

Nonetheless, codification of this principle is essential. Only by expressly incorporating the claimant’s statutory entitlement to attorneys’ fees can we prevent the 

aforementioned disingenuous conduct. An agency must not be allowed to take actions that facilitate unnecessary legal expenses and then, at the last minute, pay 

the claimant damages in order to render the claim moot. This conduct places the 

burden of legal representation on the claimant, in violation of Congressional intent 

and the prevailing equitable considerations favoring retention of private counsel by 

USERRA claimants. 

USERRA must be amended to expand the availability of liquidated damages 

for successful claimants. 

USERRA currently provides limited instances where a successful claimant may be 

awarded liquidated damages. Pursuant to section 4323(d)(1)(C), if a claimant was 

found to be the victim of a willful violation, he or she is entitled to liquidated damages in the amount of his or her actual damages. The provision, however, applies 

only to servicemen and women employed by state or local governments or private 

employers. 

H.R. 3393, proposes to amend section 4323(d) by extending its coverage to federal 

government employees and by ensuring that liquidated damages will always be 

available to victims of willful USERRA violations. The bill seeks to increase the 

amount of liquidated damages available to a successful claimant from the amount 

of his/her actual damages to the greater of either $20,000.00 or the claimant’s actual 

damages. I support these proposals and hope to see both of them implemented. 

The payment of liquidated damages is often the only true award granted to victims of USERRA violations. For example, if the victim of a wrongful termination 

under USERRA promptly finds comparable work, his or her actual damages may 

be quite small. As a result, an award of additional liquidated damages that merely 

doubles his or her miniscule actual damages award is an insufficient deterrent to 

employers who would discriminate against military personnel in civilian employment. Liquidated damages of the greater of either $20,000.00 or the claimant’s actual damages should be available to USERRA claimants in every case. 

It is imperative that the language in H.R. 3393 extend this provision is adopted 

to protect federal employees in the same manner as state and private employees. 

The purpose of USERRA is to protect ALL veterans, reservists and National Guard 

members irrespective of their place of employment. By treating our service men and 

women differently by virtue of their employer we are defeating the very basis of the 

statute. USERRA demands parity. Justice demands parity. Equitable treatment 

among all USERRA eligible employees is an ethical absolute and is necessary to fulfill the intent of Congress by extending the promise of USERRA protections to all 

eligible employees. 

Therefore, I propose that section 4323(d) be amended to read as follows: 

(1) In any action under this section, the court may award relief as follows: 

(C) If the court determines that an employer has failed to comply with the 

provisions of this chapter, the court SHALL require the employer to pay 

the person as liquidated damages an amount equal to the greater of: . . . 

(i) the amount referred to in subparagraph (B); or (ii) $20,000.00. (Emphasis added). 

Additionally, section 4324(c) must be amended, pursuant to 38 U.S.C. §§ 4301 and 

4331, to provide the same protection. I propose that 38 U.S.C. 4324(c) be amended 

to add a new subsection (7) which reads as follows: 

(7) In any action under this section, the court may award relief as follows: 

(i) if the court determines that an employer has failed to comply with the 

provisions of this chapter, the court SHALL require the employer to pay 

the person as liquidated damages an amount equal to the greater of: (A) 

the amount referred to in subparagraph(C)(2); or (B) $20,000.00. (Emphasis 

added). 

USERRA must be amended to mandate the payment of complete compensatory damages for successful claimants. 

Currently, USERRA does not provide a statutory entitlement to compensatory 

damages for successful claimants. This is an anomaly in employment discrimination 

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5See, 42 U.S.C. §§ 2000e–1 et seq.; and, 5 U.S.C. §§ 3330 et seq. 6Gilbert, Gary. ‘‘Compensatory Damages and Other Remedies in Federal Sector Employment 

Discrimination Case.’’ 2nd ed. Dewey Publications, Inc: Arlington, 2003. Page 97. 

and veterans’ benefits legislation.5 Pursuant to 38 U.S.C. §§ 4301 and 4331, 

USERRA must be amended to provide comparable relief to federal employees for 

violations of the Act. Law and equity demand that USERRA eligible employees receive the same quality anti-discrimination protection as all other employees. 

Title VII was amended to provide for compensatory damages because Congress 

recognized that a financial award, typically consisting of back pay, is often insufficient by itself to fully compensate the victim for his or her injuries. Discrimination 

cases commonly involve complex, non-pecuniary injuries. Successful claimants 

should be entitled to compensation for these injuries in addition to their financial 

damages. For example, section 102 of the Civil Rights Act 1991 has been held to 

allow recovery for the following non-pecuniary injuries under its compensatory damages remedy: ‘‘future pecuniary losses, emotional pain, suffering, inconvenience, 

mental anguish, loss of enjoyment of life, and other non-pecuniary losses.’’ 6 The 

same remedies available to victims of unlawful employment practices under the 

Civil Rights Act 1991 should be available to victims of discrimination under 

USERRA. 

Therefore, I propose that 38 U.S.C. § 4324(c) be amended to add a new subsection 

(9) to read as follows: 

(9) In any claim brought pursuant to the laws of this chapter [38 U.S.C. 

§§ 4301 et seq.], where the Merit Systems Protection Board or Administrative Judge determines that an employer failed to comply with the provisions 

of this chapter, the Board or Judge shall award the claimant compensatory 

damages in addition to, but not including, any other relief granted pursuant 

to this chapter. 

Additionally, I propose that 38 U.S.C. § 4323(d)(1) be amended to add a new subsection (E), which reads as follows: 

(E) In any action brought pursuant to the laws of this chapter [38 U.S.C. 

§§ 4301 et seq.], where the court determines that an employer failed to comply with the provision of this chapter, the court shall award the claimant 

compensatory damages in addition to, but not including, any other relief 

granted pursuant to this chapter. 

USERRA must be amended to provide for punitive damages in the worst 

cases of discrimination. 

Presently, USERRA does not provide for an award of punitive damages. As mentioned above, section 4323(d) allows for liquidated damages in only the most limited 

of instances. Representative Davis’ RAJA proposals in H.R. 3393, however, include 

a provision that would allow for punitive damage awards to victims of the worst 

kinds of discrimination. 

H.R. 3393 proposes to amend USERRA section 4323(d) to provide for the availability of punitive damages, in addition to liquidated damages, where the court finds 

that the violation was committed with ‘‘malice or reckless indifference to the federally protected rights of the person.’’ The proposal would apply only to state and local 

governments and private employers with more than fifteen (15) employees. I support 

these proposals. However, I believe that punitive damage awards need to be expanded even further. 

Punitive damage awards should be available in all cases where the employer 

knowingly, willfully, maliciously or with reckless indifference violated an employees 

protected USERRA rights. Punitive damages are imposed as a deterrent to future 

egregious behavior. Any act taken by an employer of his or her own volition with 

the knowledge that he or she is denying a member of the military his or her protected rights offends the most sacred principles of our society. Such behavior must 

be discouraged in the clearest and strongest manner possible. A simple amendment 

to the existing law unambiguously granting employees a right to punitive damages 

in such cases will greatly reduce the number of employers willing to flout the law. 

Moreover, limiting the availability of punitive damage awards to cases against 

state and local governments and private employers of 15 or more persons leaves a 

vast number of USERRA-eligible employees unprotected. Congress intended for veterans benefit and employment discrimination statutes to apply to all eligible parties 

equally, regardless of their employer. By allowing punitive damage awards only for 

employees of state and local governments and large private employers, the H.R. 

3933 proposal discriminates against an enormous number of veterans, reservists 

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and National Guard members who are employed either by federal agencies or by 

smaller private employers. USERRA, to be effective, demands parity. How can we 

look a veteran in the eye and tell him or her that we value his or her service less 

because he or she is employed by a ten (10)-person construction crew and not by 

the Commonwealth of Massachusetts or Morgan Stanley? 

Therefore, I propose that 38 U.S.C. § 4323 be amended to read as follows: 

(d)(1)(D) If the court determines that the employer willfully, knowingly, maliciously, or with reckless indifference failed to comply with the provisions 

of this chapter, in violation of the employee’s federally protected rights, the 

person shall be entitled to an award of punitive damages in addition to all 

other remedies outlined in this chapter. 

Likewise, 38 U.S.C. § 4324(c) must also be amended to provide for punitive damages awards in cases of willful or malicious discrimination. I propose section 4324(c) 

be amended to add a new subsection (8) to read as follows: 

(8) If the court determines that the employer willfully, knowingly, maliciously, or with reckless indifference failed to comply with the provisions of 

this chapter, in violation of the employee’s federally protected rights, the 

person shall be entitled to an award of punitive damages in addition to all 

other remedies outlined in this chapter. 

USERRA must be amended to permit the investigation and discipline of Federal Employees who violate the Act. 

5 U.S.C. § 1215 provides the Office of Special Counsel (OSC) broad powers to investigate and discipline Federal employees who violate any ‘‘law, rule or regulation’’ 

falling within its vast jurisdiction. Unfortunately, USERRA violators have not yet 

been subject to the oversight and disciplinary authority of the OSC. USERRA 

should be amended to empower OSC to investigate and punish violators personally 

for their unlawful discriminatory acts. Personal liability is the ultimate deterrent 

and its implementation would have a profound effect on those unsavory individuals 

who might otherwise commit a USERRA violation. 

Thus, I propose that 38 U.S.C. § 4324 be amended to provide for three (3) new 

subparagraphs (f), (g), and (h) which read as follows: 

(f)(1) Except as provided in subsection (g), if the Special Counsel determines that 

disciplinary action should be taken against any employee for having— 

(A) committed a prohibited personnel practice, adverse or unlawful employment 

practice, or violated any provisions of this chapter; 

(B) violated the provisions of any law, rule, or regulation, or engaged in any 

other conduct within the scope of this chapter [37 U.S.C. §§ 4301 et seq.]; 

(C) knowing fully and willfully refused or failed to comply with an order of the 

Merit Systems Protection Board, the Special Counsel shall prepare a written 

complaint against the employee containing the Special Counsel’s determination, 

together with a statement of supporting facts, and present the complaint and 

statement to the employee and the Board, in accordance with this subsection. 

(2) Any employee against whom a complaint has been presented to the Merit Systems Protection Board under paragraph (1) is entitled to— 

(A) a reasonable time to answer orally and in writing, and to furnish affidavits 

and other documentary evidence in support of the answer; 

(B) be represented by an attorney or other representative; 

(C) a hearing before the Board or an administrative law judge as prescribed by 

38 U.S.C. § 4324(c)(1)(A); 

(D) have a transcript kept of any hearing under subparagraph (C); and 

(E) a written decision and reasons therefore at the earliest practicable date, including a copy of any final order imposing disciplinary action. 

(3) A final order of the Board may impose disciplinary action consisting of removal, reduction in grade, debarment from Federal employment for a period not to 

exceed 5 years, suspension, reprimand, or an assessment of a civil penalty not to 

exceed $1,000. 

(4) There may be no administrative appeal from an order of the Board. 

An employee subject to a final order imposing disciplinary action under this subsection may obtain judicial review of the order by filing a petition therefore with 

such court, and within such time, as provided for under section 7703(b) [5 USCS 

§ 7703(b)]. 

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(g) In the case of an employee in a confidential, policymaking, policy-determining, 

or policy-advocating position appointed by the President, by and with the advice and 

consent of the Senate (other than an individual in the Foreign Service of the United 

States), the complaint and statement referred to in subsection (f)(1), together with 

any response of the employee, shall be presented to the President for appropriate 

action in lieu of being presented under subsection (f). 

(h)(1) In the case of members of the uniformed services and individuals employed 

by any person under contract with an agency to provide goods or services, the Special Counsel may transmit recommendations for disciplinary or other appropriate action (including the evidence on which such recommendations are based) to the head 

of the agency concerned. 

(2) In any case in which the Special Counsel transmits recommendations to an 

agency head under paragraph (1), the agency head shall, within 60 days after receiving such recommendations, transmit a report to the Special Counsel on recommendation and the action taken, or proposed to be taken, with respect to each 

such recommendation. 

USERRA must be amended to provide strict timelines for the investigation 

and processing of complaints brought before DOL VETS 

A servicemember who believes that he or she fell victim to a USERRA violation 

may choose to file a complaint with the Merit Systems Protection Board or with the 

Secretary of Labor. 38 U.S.C. § 4324(b); 38 U.S.C. § 4322; 5 CFR § 1208.11. As currently drafted, USERRA fails to provide a mechanism for the timely investigation 

and resolution of complaints for individuals who elect the latter option. The length 

of time DOL VETS requires to investigate and process a single USERRA claim is 

unacceptable, constituting an affront to Congressional intent and the plain meaning 

of the Act, which unambiguously provides for ‘‘the prompt reemployment’’ of servicemembers, in order to ‘‘minimize the disruption’’ to the civilian lives of servicemembers. 38 U.S.C. § 4301. If DOL VETS is not disbanded, I implore you to amend 

38 U.S.C. § 4322 to provide strict timelines that will require DOL VETS to provide 

relief for our Nations veterans within a one hundred and eighty day (180) time period. 

Thus, I propose that 38 U.S.C. § 4322 be amended to read as follows: 

c. The Secretary shall, upon request, provide technical assistance to a potential 

claimant with respect to a complaint under this subsection, and when appropriate, to such claimant’s employer. 

d. The Secretary shall investigate each complaint submitted pursuant to subsection (a). Such investigation shall in no circumstance extend beyond 

one hundred and eighty days (180) days. If the Secretary determines as 

a result of the investigation that the action alleged in such complaint occurred, the Secretary shall attempt to resolve the complaint by making reasonable efforts to ensure that the person or entity named in the complaint 

complies with the provisions of this chapter. (Emphasis added) 

e. If the efforts of the Secretary with respect to any complaint filed under subsection (a) do not resolve the complaint, the Secretary shall notify the person 

who submitted the complaint of— 

1. the results of the Secretary’s investigation; and 

2. the complainant’s entitlement to proceed under the enforcement of rights 

provisions provided under section 4323 (in the case of a person submitting 

a complaint against a State or private employer) or section 4324 (in the 

case of a person submitting a complaint against a Federal executive agency or the Office of Personnel Management). 

USERRA must be amended to require the payment of pre-judgment interest 

on all back pay awards. 

As currently drafted, 38 U.S.C. § 4323(d)(1)(B) provides that, ‘‘[t]he court may require the employer to compensate the person [claimant] for any loss of wages or 

benefits suffered by reason of the employer’s failure to comply with the provisions 

of this chapter.’’ This section should be amended to specifically provide for the payment of pre-judgment interest on back pay awards for three (3) reasons: (i) an 

award of pre-judgment interest is necessary to fully compensate the victim; (ii) Congress intended for awards of back pay to include an award of pre-judgment interest; 

and, (iii) it is necessary in order to provide the same level of protection to victims 

of USERRA violations that Congress has extended to all other victims of employment discrimination. 

An award of back pay lacking accrued interest fails to properly compensate the 

victim for his or her actual damages. For example, paying someone in 2007 for a 

loss that was suffered in 2002 does not take into account two (2) undeniable market 

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7See, Captain Samuel F. Wright, JAGC, USNR article, ‘‘Does USERRA Provide Interest on 

Back Pay Awards?’’ Law Review No. 0611, http://www.roa.org (last visited April 2006). 

forces that effect the contemporary value of money: inflation and opportunity cost 

or time value. If an aggrieved veteran receives an award of back pay in 2007 for 

lost wages occurring in 2002, inflation will have devalued that sum to a measurable 

extent. Furthermore, not having had that money in his or her possession over the 

past five (5) years caused the victim to lose his or her opportunity to invest that 

sum and earn interest. 

It is true that neither §§ 4323(d)(1)(B) nor 4324(c)(2) expressly guarantees a successful claimant interest on an award of back pay. Nonetheless, Congress clearly intended that veterans discriminated against in violation of USERRA should receive 

interest on awards. Section 4323(d)(3) expressly provides for the payment of prejudgment interest for awards against State and private employers. Additionally, 

under USERRA’s predecessor, the Veterans’ Reemployment Rights Law 1940 (VRR), 

prejudgment interest was commonly awarded, a fact that was well known to Congress at the time of USERRA’s enactment.7 Prejudgment interest is routinely 

awarded in all other employment discrimination cases. 

Prejudgment interest serves to compensate for the loss of money due as 

damages from the time a claim accrues until judgment is entered, thereby 

achieving full compensation for the injury these damages are intended to 

redress . . . [T]o the extent the damages awarded to the plaintiff represent 

compensation for lost wages, it is ordinarily an abuse of discretion not to 

include prejudgment interest. Fink v. City of New York, 129 F.Supp 511, 

525–26 (E.D.N.Y. 2001) (Addressing interest on back pay awards under 

USERRA). 

Until the statutory language is amended to unambiguously include interest on 

awards for USERRA violations, zealous agency attorneys will continue to argue that 

the absence of an express entitlement to an award of interest is evidence that such 

an award is NOT mandatory. Given the regularity with which these cases take 

years to resolve, prejudgment interest is an essential part of any compensatory remedy. 

Therefore, I propose that 38 U.S.C. § 4323(d)(1)(B) be amended to read as follows: 

The court may require the employer to compensate the person [claimant] 

for any loss of wages or benefits, INCLUDING INTEREST, suffered by 

reason of the employer’s failure to comply with the provisions of this chapter. (Emphasis added) 

As noted above, sections 4301(b) and 4331(b)(1) demand that Federal employees 

receive at least the same degree of protection and quality of benefits as all other 

employees under USERRA. Consequently, I propose that § 4324(c)(2) also be amended, and that it read as follows: 

(2) If the Board determines that a Federal executive agency or the Office of Personnel Management has not complied with the provisions of this chapter [38 USCS 

§§ 4301 et seq.] relating to the employment or reemployment of a person by the 

agency, the Board shall enter an order requiring the agency or Office to comply with 

such provisions and to compensate such person for any loss of wages or benefits, 

INCLUDING INTEREST, suffered by such person by reason of such lack of compliance. (Emphasis added). 

USERRA must be amended to make injunctive and interim relief mandatory 

where appropriate. 

Under the current statutory structure, section 4323(e) of USERRA permits courts 

to invoke their full equity powers to remedy violations at the courts’ discretion. Section 4324 contains no provision regarding the courts’ power to grant equitable relief. 

In 2005 the Seventh Circuit Court of Appeals upheld a lower court decision denying 

injunctive relief under section 4323(e) in Bedrossian v. Northwestern Memorial Hospital, 409 F.3d 840 (7th Cir 2005). Dr. Bedrossian, in addition to his military service 

in the Air Force Reserves, was employed as a physician and professor at Northwestern Memorial Hospital. The Hospital sought to fire Dr. Bedrossian because of 

the inconvenience caused by his military service and the Doctor responded by seeking an injunction. The trial court held, and the Seventh Circuit affirmed, that regardless of the strength of the claimant’s case, an injunction was not an available 

remedy. This decision should be overruled. 

By merely, changing the word ‘‘may’’ in section 4323(e) to ‘‘shall’’, Congress could 

ensure that equitable relief is available to all USERRA victims when appropriate. 

The claimant would still need to demonstrate his or her entitlement to equitable rerfrederick on PROD1PC67 with HEARING

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8See, Captain Samuel F. Wright, JAGC, USNR article, ‘‘Firmer Teeth: Legislation introduced 

to enhance USERRA enforcement’’ Law Review No. 0754, http://www.roa.org (last visited, October 2007). 

lief in the form of an injunction. However, under the proposed amendment, once the 

claimant has established that an injunction is appropriate, the court would be required to grant it. 

This proposal is one of many contained in H.R. 3393, the Reservists Access to Justice Act (RAJA), sponsored by Representative Artur Davis (D–AL). RAJA recognizes 

that the driving force behind the enactment of USERRA was to support and protect 

the members of our armed forces. The national defense interests of our country require that the segment of our military composed of civilian employees is supported 

by their civilian employers. We are currently fighting a global war on terror on multiple fronts. For the first time in our Nation’s history, we are waging war on a grand 

scale without conscription and in reliance on an all volunteer military. Congress recognizes this and strongly supports this Nation’s commitment to voluntary military 

service. Nonetheless: 

Congress also recognizes that the reliance on volunteers means that we 

must include substantial incentives for young men and women to join and 

remain in our Nation’s uniformed services. We also must mitigate the disincentives to service, including the realistic fear that ‘‘if I sign up, I will 

lose my civilian job.’’ 8

Thus, I, too, propose that 38 U.S.C. § 4323 be amended to add a new subsection 

(e) which reads as follows: 

The court SHALL use its full equity powers, including temporary or permanent injunctions, temporary restraining orders, and contempt orders, to vindicate fully the rights or benefits of persons under this chapter. (Emphasis 

added) 

Pursuant to 38 U.S.C. § 4301(b), ‘‘It is the sense of Congress that the Federal Government should be a model employer in carrying out the provisions of this chapter 

[38 USCS §§ 4301 et seq.]’’ With this in mind, Congress enacted 38 U.S.C. 

§ 4331(b)(1) which states, in relevant part: 

The Director of the Office of Personnel Management (in consultation with 

the Secretary and the Secretary of Defense) may prescribe regulations implementing the provisions of this chapter [38 USCS §§ 4301 et seq.] with 

regard to the application of this chapter [38 USCS §§ 4301 et seq.] to Federal executive agencies (other than the agencies referred to in paragraph 

(2)) as employers. Such regulations shall be consistent with the regulations 

pertaining to the States as employers and private employers, except that employees of the Federal Government may be given greater or additional rights. 

(Emphasis added). 

Therefore, any amendment to § 4323 resulting in greater benefits to an employee 

must also, by law, be reflected in a comparable amendment to § 4324. As a result, 

I also propose that section 4324(c) be amended to provide a new subsection (5) that 

reads as follows: 

The Merit System Protection Board or Presiding Administrative Judge 

SHALL use its full equity powers, including temporary or permanent injunctions, temporary restraining orders and contempt orders, to vindicate 

fully the rights or benefits of persons under this chapter. (Emphasis added) 

Additionally, USERRA should be amended to provide for interim relief comparable to that afforded to other employees under 5 U.S.C. § 7701(b)(2) for deserving 

section 4324 claimants. 5 U.S.C. § 7701(b)(2) directs the Merit Systems Protection 

Board (MSPB or Board) to award successful Appellants, ‘‘the relief provided in the 

decision effective upon making the decision, and remaining in effect pending the 

outcome of any petition for review under subsection (e).’’ In contrast, USERRA does 

not require a Federal Executive Agency under section 4324 to furnish any relief 

until a final decision has been entered. 

Thus, a claimant who successfully established an unlawful employment practice 

may be required to remain unemployed and uncompensated for a period of up to 

two (2) years until the MSPB enters a final decision, whereas, an otherwise identical claimant who files an action before the Equal Employment Opportunity Commission is entitled to interim relief immediately upon the entering of an initial decision. This inequity cannot be justified and must be remedied. 

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9 20 C.F.R. 1002.103 

10 Id. 

The MSPB’s interim relief authority pursuant to 5 U.S.C. § 7701(b)(2) must be extended to USERRA claims. Therefore, I propose that 38 U.S.C. § 4324(c) be amended 

to provide a new subsection (6) that reads as follows: 

(e)(1) If an employee or applicant for employment is the prevailing party 

in an appeal under this subsection, the employee or applicant shall be 

granted the relief provided in the decision effective upon the making of the 

decision, and remaining in effect pending the outcome of any petition for 

review under subsection (d), unless— 

(A)(i) the relief granted in the decision provides that such employee or applicant shall return or be present at the place of employment during the 

period pending the outcome of any petition for review under subsection (e); 

and 

(ii) the employing agency, subject to the provisions of subparagraph (a), 

determines that the return or presence of such employee or applicant is unduly disruptive to the work environment. 

(2) If an agency makes a determination under subparagraph (A) that prevents the return or presence of an employee at the place of employment, 

such employee shall receive pay, compensation and all other benefits as 

terms and conditions of employment during the period pending the outcome 

of any petition for review under subsection (d). 

USERRA must be amended to unambiguously preclude USERRA claims from 

binding arbitration agreements. 

38 U.S.C. § 4302(b) expressly states that any law, agreement, or practice which, 

‘‘reduces, limits, or eliminates in any manner any right or benefit’’ provided under 

USERRA is preempted by the statute. Nonetheless, the Fifth Circuit Court of Appeals recently held that this provision only preempts agreements limiting the claimants’ substantive rights and not his or her procedural rights (e.g. the right to pursue 

a lawsuit in federal court as opposed to being required to proceed via arbitration). 

See, Garrett v. Circuit City Stores, Inc., 449 F.2d 672 (5th Cir. 2006). This is an 

egregious misapplication of the text and purpose and intent of USERRA and must 

be overturned by legislative mandate. Veterans must not be denied the procedural 

due process of law as a result of employment agreements contradicting federal law. 

Accordingly, I implore you to support H.R. 3393, and its proposed amendment to 

Chapter 1 of Title 9 of the United States Code, which would unambiguously exempt 

USERRA disputes from binding arbitration agreements and expressly overrule Garrett. In that vein, I too propose that 38 U.S.C. § 4322 be amended to add a new subsection that reads as follows: 

(g) Chapter 1 of title 9 shall not apply with respect to employment or reemployment rights or benefits claimed under this subchapter. 

USERRA must be amended to adopt two additional exceptions to section 

4312’s five-year limitation on section 4313 reemployment rights. 

As currently drafted, USERRA’s reemployment protections lapse after a five-year 

period of consecutive active duty service. Section 4312(c) establishes eight specific 

exceptions to this five-year limitation, thereby enabling employees to serve five or 

more years of continuous active duty while working for a single employer and retaining his or her reemployment rights under the Act. Additionally, the Department 

of Labor (DOL) regulations implementing USERRA recognize a ninth exception. 

DOL USERRA regulation § 1002.103 applies to service members who are forced 

to mitigate economic losses suffered as a result of an employer’s USERRA violation. 

The regulation provides, in relevant part, that a service member who remains or 

returns to the armed services in an attempt to ‘‘mitigate economic losses caused by 

the employer’s unlawful refusal to reemploy that person,’’ 9 shall not be required to 

count the time ‘‘against the five-year limit.’’ 10 The regulation is grounded in equitable considerations. Those same considerations demand that the exception created 

by the regulation be fully incorporated into the text of the statute. 

I propose that 38 U.S.C. § 4312(c) be amended to add a new subsection (5) which 

reads as follows: 

(5) which is undertaken by an individual who remains in or returns to 

uniformed service in order to mitigate economic damages suffered as a consequence of the employer’s unlawful failure to comply with the provisions 

of this chapter. 

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An additional exception should also be added for National Guard members who 

are called to state active duty service in response to homeland emergencies. As currently drafted, time spent fulfilling active duty training commitments, time on active duty support for critical missions and time called upon for Federal active duty 

National Guard service are all exempt from consideration in calculating a person’s 

4312 time. Presumably, these missions are considered so important that they warrant preferential treatment. Under this reasoning, active duty service in furtherance 

of a State’s emergency response is an equally compelling interest and should receive 

equivalent treatment. 

Homeland emergency response is an integral component of our homeland security 

strategy. The fact that disasters and emergencies requiring the mobilization of active duty National Guard forces are generally unforeseeable adds weight to the argument that service men and women should not be penalized in their USERRA reemployment rights because they were required to answer the call to service. 

USERRA must be amended to take into account the sacrifices of guardsmen and 

their families during times of crisis. National Guard members who respond to such 

crises in State service should be entitled to the same protections as their federal 

counterparts. 

Therefore, I propose that 38 U.S.C. § 4312(c) be amended to provide for a new subsection (6) that reads as follows: 

(6) service in the National Guard under competent state military authority while in support of the homeland, in response to a natural disaster, in 

response to aid to civil authorities, or for any other reason that the governor of the state declares the need for a state activation of the National 

Guard is necessary. 

USERRA must be amended so that the term ‘‘adjudication’’ in § 4324(c)(1) is 

defined as providing the same procedures available to appellants under 

5 U.S.C. § 7701. 

In its current incarnation, USERRA does not expressly outline the formal due 

process to which claimants are entitled when bringing a claim for relief of an alleged violation of the Act. In Kirkendall v. Department of the Army, the Court of 

Appeals for the Federal Circuit concluded that every USERRA claimant has a right 

to a hearing and that he or she is entitled to the same procedures as an ‘‘appellant’’ 

under 5 U.S.C. § 7701(a). See, Kirkendall v. Department of the Army, 479 F.3d 380 

(Fed. Cir. 2007). 

5 U.S.C. § 7701(a) expressly provides for basic due process formalities in other appeals brought before the MSPB. USERRA should be amended so that both sections 

4323 and 4324 unambiguously state the due process rights afforded to claimants. 

USERRA claimants must be granted the same procedural protections that the 

United States Code extends to other employees. Codification of the holding in 

Kirkendall will effectively extend the due process protections of 5 U.S.C. § 7701(a) 

to USERRA claimants and correct any enduring ambiguities. 

Therefore, I propose that 38 U.S.C. § 4323(a) be amended to incorporate a new 

subsection (3) which reads as follows: 

(3) Any employee, or applicant for employment, who submits any claim 

or action for relief pursuant to the rights outlined in this chapter [38 U.S.C. 

§§ 4301 et seq.] shall have the right: 

(A) to a trial by Judge or Jury, for which a transcript will be kept; and 

(B) to be represented by an attorney or other representative. 

In addition, I propose that 38 U.S.C. § 4324(c)(1) be amended to provide for a new 

subparagraph (A) which reads as follows: 

(A) Any employee, or applicant for employment, who submits any claim 

or action for relief pursuant to the rights outlined in this chapter [38 U.S.C. 

§§ 4301 et seq.] shall have the right: 

(i) to an in person hearing for which a transcript will be kept; and 

(ii) to be represented by an attorney or other representative. 

(iii) the employee shall receive official time off to prosecute his/her appeal to include time to request and respond to Discovery Demands and/ 

or orders from the MSPB or Federal Circuit. 

USERRA section 4324 must be amended to state unequivocally that there is 

no Statute of Limitations provision governing the time period in which 

to bring a claim under the Act. 

Section 4323(i) clearly states that ‘‘[n]o Statute of Limitations shall apply to any 

proceeding under this chapter [38 USCS §§ 4301 et seq.].’’ Sections 4301 and 4331 

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compel Congress to amend section 4324 to provide the same protection to Federal 

government employees. 

The United States Courts of Appeals for the Federal Circuit has already held that 

no Statute of Limitations applies to cases brought under § 4324. See, Hernandez v. 

Department of the Air Force, 2007 U.S. App. Lexis 20280 (August 27, 2007). Nonetheless, codification of this principle is the only way to ensure that future Federal 

Executive Agencies will not successfully overturn this ruling and reinstate the arbitrary distinction between Federal employees and all other employees for the purpose 

of USERRA Statute of Limitations claims. 

Therefore, I propose that 38 U.S.C. § 4324 be amended to add a new subsection 

(e) which reads as follows: 

(e) Inapplicability of statute of limitations. No statute of limitations shall 

apply to any proceeding under this chapter [38 USCS §§ 4301 et seq.]. 

CONCLUSION 

Army Chief of Staff General George W. Casey Jr. once remarked that ‘‘Our reserve components are performing magnificently, but in an operational role for which 

they were neither designed nor resourced . . . They are no longer a strategic reserve, mobilized only in national emergencies. They are now an operational reserve 

deployed on a cyclical basis,’’ enabling the Army to sustain operations. ‘‘Operationalizing’’ the reserve components ‘‘will require national and state consensus, as 

well as the continued commitment from employers, soldiers and families,’’ 

Casey said (emphasis added). ‘‘It will require changes to the way we train, equip, 

resource and mobilize.’’ 

I could not agree with the above statement more. As the National Guard and Reserves change to an operational reserve, it is vital to our national security and 

homeland defense to ensure members of these units are protected from losing their 

full-time careers while defending the country at home and abroad. The extensive deployment of Reservists and members of the National Guard in furtherance of the 

Global War against Terrorism has only compounded the inequity and made the need 

for congressional intervention more pronounced. The time for a major overhaul of 

the laws that protect the employment rights of members of the National Guard and 

Reserves is upon us. 

Our national defense and homeland security depend on the men and women in 

our National Guard and Reserves and, while they are protecting us, we should be 

protecting their civilian jobs. We never want to be in the situation where members 

of the reserves need to pick between our national defense and their civilian careers, 

as that will undermine our security. Unfortunately, too many have been placed in 

that situation and after many deployments, both overseas and stateside guarding 

our bridges, tunnels, nuclear power plants, and responding to natural disasters, 

many have chosen their civilian careers over their service to our country. This exodus of highly skilled and trained personnel could undermine our recruiting efforts 

and result in a hollowed out military force unless Congress takes immediate action 

to strengthen the weak links. Fixing USERRA is a good first step to taking away 

the fear of a deployment and how that deployment will have a negative impact on 

their civilian careers. 

The proposed recommendations outlined above are pivotal in advancing our national defense interests and achieving parity and equity in the workplace. USERRA 

was designed and implemented to provide comprehensive anti-discrimination protection for military personnel in civilian employment. In order to effectuate this congressional mandate, we must improve opportunities for injured veterans to pursue 

their rights under the Act, increase the statutory mechanisms that serve as deterrents to unlawful employer behavior and create uniformity in the law’s protections 

to all USERRA-eligible employees, regardless of their employer. 

If these changes are not made to USERRA, the situation will only remain the 

same, whether it is the Department of Labor or the Office of Special Counsel handling the investigation of complaints. Significant measures must be taken by Federal agencies, state employers and private employers to protect members of the military service. As soldiers called to duty have begun to return home and re-enter the 

workforce, my firm has already seen an influx in USERRA allegations. With the 

Global War on Terrorism continuing with no clear end in sight, the number of National Guardsmen and Reservists called to second, third and fourth tours of duty 

will force an increase in the number of discrimination cases. 

I ask you to place yourself in the shoes of a Reservist or National Guardsman who 

has been deployed twice since 2001 to serve his country for a year or longer and 

was subsequently passed over for a position with the Federal government due to 

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that same service. Who would you want to assist you? The Department of Labor, 

where only 7% of the cases are referred for prosecution? The Office of Special Counsel, which has a 25% correction rate? Or a highly skilled privately retained attorney 

with a 70% correction rate? Clearly, the answer is for the Federal government to 

rely on private attorneys to protect our fighting men and women. The only way for 

private attorneys to properly bear that burden is for Congress to pass a law that 

mandates attorneys’ fees so more firms like mine would be willing to provide legal 

services at no cost to our citizen soldiers. 

USERRA should no longer be a second-class anti-discrimination statute; we owe 

it to our service men and women to provide them with the premier anti-discrimination law in the land. The only way to have this become a reality is through proper 

representation, which has not been demonstrated by the Department of Labor and 

the Office of Special Counsel. Through the aggressive and successful representation 

of private attorneys, allegations of discrimination under USERRA will be prosecuted 

in a timely and efficient manner, giving military personnel the respect they deserve 

in return for protecting our country. Instead of holding claims up in a referral program filled with bureaucracy and red tape, establishing the above recommendations 

will allow private attorneys to freely offer their representation and eliminate a 

source of unnecessary frustration to those who have served. This type of representation will encourage military service in our all-volunteer forces and ensure that those 

who have served are properly cared for upon their return home, now more than 

ever. The proposed changes represent the least restrictive means possible for effectuating legitimate equality in the workplace and guaranteeing that no one other 

than a USERRA violator will bear the costs of the improved enforcement. 

As currently drafted, the Uniformed Services Employment and Reemployment 

Rights Act 1994 (USERRA) fails to adequately support military personnel upon 

their return to civilian employment. Hon. Representative Artur Davis (D–AL) recently sponsored new legislation, H.R. 3393, to address some of the law’s deficiencies. I urge you to demonstrate your strong commitment to the brave men and 

women who serve in the armed forces by supporting these amendments and by incorporating the additional proposals contained within this correspondence into a 

new more comprehensive updating of USERRA. Please fight to get this updated 

USERRA bill passed as quickly as possible. Thank you. 

f 

Prepared Statement of Ronald F. Chamrin, Assistant Director, 

Economic Commission, American Legion 

Madam Chairwoman and Members of the Subcommittee: 

Thank you for this opportunity to present The American Legion’s view on some 

of the Department of Veterans Affairs (VA) expiring programs. The majority of the 

programs discussed today received increased payments via the passage of the Veterans Benefits Improvement Act of 2004, Public Law (P.L.) 108–454. Due to the expiration of temporary increased payments on January 1, 2008, many veterans will receive a lower monthly payment for earned education benefits. The American Legion 

opposes any reduction in education assistance payments. The American Legion recommends that the dollar amount of the entitlement be indexed to the average cost 

of college education including tuition, fees, textbooks and other supplies for a commuter student at an accredited university, college or trade school for which a veteran qualifies. 

Demonstration Project of Adjustable Rate Mortgages—Section 3707 and 

Demonstration Project on Hybrid Adjustable Rate Mortgages—Section 

3707a 

The American Legion supports the reinstatement of the Adjustable Rate Mortgage 

Programs that will expire at the end of this calendar year. Since the VA Home Loan 

program was enacted as part of the original Servicemen’s Readjustment Act of 1944 

(the GI Bill), VA has guaranteed more than 18.2 million home loans totaling nearly 

$938 billion for veterans to purchase or construct a home, or to refinance another 

home loan on more favorable terms. In the last five years (2001–2006), VA has assisted more than 1.4 million veterans in obtaining home loan financing totaling almost $197 billion. About half of these loans, just over 730,000, were to assist veterans to obtain a lower interest rate on an existing VA guaranteed home loan 

through VA’s Interest Rate Reduction Refinancing Loan Program. 

The American Legion also supports administrative and/or legislative efforts that 

will improve and strengthen the Loan Guaranty Service’s ability to serve America’s 

veterans. H.R. 4884, The Helping Our Veterans to Keep Their Homes Act of 2008, 

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addresses the expiration of these programs. In reference to the topics before this 

Committee today, The American Legion supports the following portions of the proposed legislation in H.R. 4884: 

Section 2(A) 

(c) Extension of demonstration project on adjustable rate mortgages.—Section 3707(a) of such title is amended by striking ‘‘2008’’ and inserting ‘‘2018’’. 

(d) Extension of demonstration project on hybrid adjustable rate 

mortgages.—Section 3707A(a) of such title is amended by striking ‘‘2008’’ 

and inserting ‘‘2012’’. 

PROGRAMS AFFECTED BY THE VETERANS BENEFITS IMPROVEMENT 

ACT OF 2004 (P.L. 108–454) 

Apprenticeship and On-Job-Training (OJT) 

The American Legion opposes any reduction in education assistance payments. 

Due to the expiration of temporary law that increased the OJT payment to 85 percent of the Montgomery GI Bill (MGIB) payment rate in 2005, the OJT payment 

rate dropped to 75 percent on January 1, 2008. The OJT payment rates have 

dropped to $825.75, $605.55, and $385.35. The American Legion recommends that 

the dollar amount of the entitlement should be indexed to the average cost of college 

education including tuition, fees, textbooks and other supplies for a commuter student at an accredited university, college or trade school for which a veteran qualifies. 

Approximately 7,000 veterans are immediately affected due to the drop in monthly payment rates. The American Legion has long advocated for increased education 

benefits and raising the rates of the entitlement. Lowering benefits is an insult to 

all veterans and an extension of the OJT payment rates implemented in P.L. 108– 

454 should be indefinite. 

Not every veteran is destined for college; therefore, the MGIB needs to be more 

accessible for those veterans with vocational aspirations other than college. The 

overall costs of these vocational training and licensing programs far exceed the 

monthly stipend provided under the traditional ‘‘college-student-for-36-months’’ approach in the current MGIB. 

Veterans should be afforded the opportunity to attend programs that will lead to 

the vocation of their choice. In addition, a higher percentage of today’s servicemembers are married (with children in the majority of cases) when they are discharged. Meeting the financial obligations to sustain and maintain a household is 

paramount and often serves as a major obstacle to their timely use of the MGIB. 

Every effort must be made to empower every veteran with options to make the best 

vocational choice to help them achieve the American dream. 

P.L. 108–454 amended Title 38, U.S.C. section 3032 subsection (c) from October 

1, 2005 to January 1, 2008. (MGIB–AD): 

(1) The reference to ‘‘75 percent’’ in subparagraph (A) were a reference to ‘‘85 percent’’; 

(2) The reference to ‘‘55 percent’’ in subparagraph (B) were a reference to ‘‘65 percent’’; and 

(3) The reference to ‘‘35 percent’’ in subparagraph (C) were a reference to ‘‘45 percent’’. 

P.L. 108–454 amended Title 10, U.S.C. section 16131, subsection (d) from October 

1, 2005 to January 1, 2008. (MGIB–SR): 

(1) the reference to ‘‘75 percent’’ in subparagraph (A) were a reference to ‘‘85 percent’’; 

(2) the reference to ‘‘55 percent’’ in subparagraph (B) were a reference to ‘‘65 percent’’; and 

(3) the reference to ‘‘35 percent’’ in subparagraph (C) were a reference to ‘‘45 percent’’. 

Post-Vietnam Era Veteran’s Educational Assistance Program (VEAP) 

The American Legion opposes any reduction in education assistance payments. 

Due to the expiration of the P.L. 108–454 that increased the OJT payment to 85 

percent of the VEAP payment rate in 2005, the OJT payment rate dropped to 75 

percent on January 1, 2008. The American Legion recommends that the dollar 

amount of the entitlement should be indexed to the average cost of college education 

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including tuition, fees, textbooks and other supplies for a commuter student at an 

accredited university, college or trade school for which a veteran qualifies. 

P.L. 108–454 amended Title 38, U.S.C. section 3233, subsection (a) from October 

1, 2005 to January 1, 2008. 

(1) the reference to ‘‘75 percent’’ in paragraph (1) were a reference to ‘‘85 percent’’; 

(2) the reference to ‘‘55 percent’’ in paragraph (2) were a reference to ‘‘65 percent’’; 

and 

(3) the reference to ‘‘35 percent’’ in paragraph (3) were a reference to ‘‘45 percent’’. 

Survivors and Dependents Educational Assistance (DEA) 

The American Legion opposes any reduction in education assistance payments due 

to the expiration of the P.L. 108–454 that increased the OJT payment of DEA recipients in 2005 and dropped on January 1, 2008. 

P.L. 108–454 amended Title 38, U.S.C. section 3687, subsection (b)(2) from October 1, 2005 to January 1, 2008. 

(A) the reference to ‘‘$574 for the first six months’’ were a reference to ‘‘$650 for 

the first six months’’; 

(B) the reference to ‘‘$429 for the second six months’’ were a reference to ‘‘$507 

for the second six months’’; and 

(C) the reference to ‘‘$285 for the third six months’’ were a reference to ‘‘$366 for 

the third six months’’. 

Incarcerated Veterans Transition Program (IVTP) 

The American Legion does not have a position regarding the Incarcerated Veterans Transition Program. 

Department of Labor (DOL) Veterans Employment and Training Program 

(VETS) Claim Referral Program to the Office of Special Counsel (OSC) 

The American Legion does not have a position regarding the expiration of the 

Demonstration Project with the Department of Justice (DOJ) Office of Special Counsel (OSC) with Uniformed Services Employment and Reemployment Rights Act 

(USERRA) claims. 

CONCLUSION 

Former President Franklin Delano Roosevelt once said, ‘‘The test of our progress 

is not whether we add more to the abundance of those who have much, it is whether 

we provide enough for those who have little.’’ Different options for purchase of 

homes and the ability to afford an education must constantly be provided to veterans. 

The American Legion looks forward to continue working with the Subcommittee 

to assist the nation’s veterans. Madam Chairwoman and Members of the Subcommittee, this concludes my testimony. 

f 

Prepared Statement of Justin M. Brown, Legislative Associate, 

National Legislative Service, Veterans of Foreign Wars of the United States 

MADAM CHAIRWOMAN AND MEMBERS OF THIS SUBCOMMITTEE: 

On behalf of the 2.3 million members of the Veterans of Foreign Wars of the 

United States and our Auxiliaries, I would like to thank you for the opportunity to 

testify before this distinguished body. 

Today, as we consider the veterans’ issues of transition and stabilization—employment, housing and education—I ask that we briefly reflect on a historical comparison. 

In 1973, following the Vietnam War, the all-volunteer force was implemented. In 

order to fill the ranks of a military worn down by years of fighting in Vietnam, recruitment standards were reduced. In 1976, the Post-Vietnam Era Veterans’ Educational Assistance Program (VEAP) was created as a recruitment incentive to help 

fill the ranks. However, relative to programs that came before VEAP, it provided 

the least amount of education benefits to veterans. 

From 1973–1985, the military had lowered recruitment standards and meager 

transition benefits, resulting in a group of veterans that is three to four times more 

likely to be homeless than their non-veteran counterparts. In contrast, Vietnam veterans prior to this time period are only 1 to 1.4 times more likely to be homeless 

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than their non-veteran counterparts. Currently, the most common attribute of a 

homeless veteran is not combat, it is their age and relation to public policy. 

‘‘The commonly held notion that the military experience provides young people 

with job training, educational and other benefits, as well as the maturity needed 

for a productive life, conflicts with the presence of veterans among the homeless 

population.’’—Libby Perl, CRS Report RL34024 

If we are to use history as a marker, we might suggest that a robust, attractive, 

initial education investment would have alleviated many of the issues America and 

its veterans are coping with today. 

If we fail on the front end with hand-up programs such as education, job training, 

and vocational rehabilitation, we miss an opportunity to create a sound stabilization 

and transition program. In the end, the American people pay for expensive programs that are difficult to administer, produce limited results, and often fail to 

achieve their objectives. 

We ask that Congress closely monitor and consider the future implications of lowered recruiting standards. Raising the initial educational benefit could offset some 

of the reduction in recruitment standards while providing the best tool to transition 

from the military to the civilian workforce. With the war fast approaching its fifth 

year, veteran educational benefits have not been adjusted to reflect the cost of an 

education. Almost daily, a new media article about the failure of the GI–Bill to pay 

for veterans’ education can be found nullifying what used to be the DOD’s most effective recruitment tool. 

We have been down this weary road before; DOD is lowering recruitment standards, and the value of the GI–Bill continues to falter. We ask that Congress be 

proactive in their approach to veterans, the military, and our future. 

Incarcerated Veterans Transition Program (IVTP) 

According to the Department of Labor (DOL), the Incarcerated Veterans Transition Program, managed by DOL and Veterans’ Employment and Training Service 

(VETS), is designed to help ex-offender veterans who are at risk of homelessness 

to reenter the workforce. The program provides direct services—through a case 

management approach—to link incarcerated veterans with appropriate employment 

and life skills support as they transition from a correctional facility into the community. 

We are supportive of the spirit of the program, but we need to see assurances of 

its effectiveness. If DOL can substantiate that IVTP has been effective in helping 

veterans stay out of prison and/or jail the VFW supports IVTP. 

Uniformed Services Employment and Reemployment Rights Act (USERRA) 

According to the Office of Special Counsel (OSC), USERRA prohibits discrimination against persons because of their service in the Armed Forces Reserve, the National Guard, or other uniformed services. USERRA prohibits an employer from denying any benefit of employment based on an individual’s membership, application 

for membership, performance of service, application for service, or obligation for 

service in the uniformed services. USERRA also protects the right of veterans, reservists, National Guard members, and certain other members of the uniformed 

services to reclaim their civilian employment after being absent due to military 

service or training. 

The VFW appreciates the rigor that the four departments (DOJ, OSC, DOD, DOL) 

have taken in ensuring that veterans are not discriminated against based on military status. The VFW agrees with recent testimony from the GAO’s Brenda Farrell 

that ‘‘suggests Congress make a single entity accountable for maintaining visibility 

over the entire USERRA complaint resolution process. Designating one single entity 

would, in GAO’s view, enhance efforts to improve overall program results.’’ 

Demonstration Project on Adjustable Rate Mortgages 

The VFW is happy to support legislation that would make permanent the authority to provide increased financing opportunities to veterans under the VA Home 

Loan Program by allowing VA to offer conventional and hybrid Adjustable Rate 

Mortgages (ARMs). Under P.L. 102–547, the VA Secretary was authorized to begin 

a demonstration project to begin offering adjustable rate mortgages through the VA 

Home Loan program that are similar to the Department of Housing and Urban Development’s (HUD) programs. 

ARMs allow the mortgagee to periodically adjust the interest rate in accordance 

with the provisions of the mortgage. ARMs have proven to be very popular alternatives to conventional home financing. They typically offer a lower-than-normal 

initial interest rate, which may make it easier for our veterans to obtain affordable 

financing. Moreover, if interest rates drop, the home buyer can save thousands of 

dollars above what they would pay using a conventional mortgage. 

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Despite these advantages, there are some drawbacks. If the interest rates increase, the home buyer may end up paying more than they normally would, even 

with the reduced initial interest rate. 

We feel that Title 38, section 3707 does an excellent job of safeguarding our veterans from some of the negative consequences this type of mortgage can have. The 

law contains both periodic and overall interest rate caps to help protect the borrower. Periodic caps limit the amount that interest may increase from one year to 

the next, while overall caps prevent the interest rate from increasing above a certain amount over the life of the loan. The current VA program limits the periodic 

cap to one percent and the overall cap to five percent over the life of the loan. 

The VFW believes that permanently expanding the financing opportunities for our 

veterans is the right thing to do as it helps assure them of the opportunity to pursue 

the American Dream of homeownership. The advantages of the ARM program may 

make it a viable alternative for many of our veterans, while the safeguards in the 

program lessen their chances of harm and, further, it brings veterans in line with 

what is available to non-veterans through HUD. 

Post-Vietnam Era Veterans’ Educational Assistance Program (VEAP) 

The Post-Vietnam Era Veterans’ Educational Assistance Program was the first 

educational benefit created as a recruiting tool. If the veteran contributed a total 

of $2,700.00 he/she could receive up to $8,100.00. If the $2,700 contribution is deducted this equates to roughly $150.00 a month for 36 months. 

The VFW believes that this benefit is inequitable relative to other educational 

benefits available. 

A $150 monthly benefit would cover roughly 9% of the average cost of education 

at a four-year public institution. Only 1% of all VA educational claims are administered through VEAP and the VFW believes that remaining and future claims should 

be administered as a Chapter 30 benefit. 

Survivors and Dependants Educational Assistance (Chapter 35) 

According to the VA, Dependents’ Educational Assistance provides education and 

training opportunities to eligible dependents of certain veterans. The program offers 

up to 45 months of education benefits. These benefits may be used for degree and 

certificate programs, apprenticeship, and on-the-job training. If you are a spouse, 

you may take a correspondence course. Remedial, deficiency, and refresher courses 

may be approved under certain circumstances. 

Chapter 35 benefits make up 14.78% of the educational benefits used in 2007. The 

VFW strongly supports this program, and would like to see its funding continued. 

Thank you for the opportunity to testify. I would be happy to answer any questions that you or the members of the Committee may have. 

f 

Prepared Statement of Todd Bowers, Director of Government Affairs, 

Iraq and Afghanistan Veterans of America 

Madam Chairwoman and members of the House Committee on Veterans’ Affairs, 

Subcommittee on Economic Opportunity, on behalf of Iraq and Afghanistan Veterans of America and our tens of thousands of members nationwide, I thank you 

for the opportunity to testify today regarding the expiring VA programs. 

In the interest of time, I will limit my testimony to the Department of Labor’s 

Veterans Employment & Training Services VETS program. 

IAVA is a proud supporter of the DOL VETS program. I have personally had the 

opportunity to meet with staff members that work with this program and I continue 

to be thoroughly impressed with their dedication. I have also spoken to many veterans who have benefited from DOL programs such as Hire Vets First. These programs are much-needed. According to the Bureau of Labor Statistics, unemployment 

among recently discharged veterans is 11.9%. The rate is even higher for veterans 

18 to 24; 18% of these veterans are unemployed—that’s three times the national average. For the 1.5 million Iraq and Afghanistan veterans returning home, employment opportunities and protections are a crucial part of their transition to civilian 

life. This is also the single most effective defense in combating homelessness among 

our nation’s veterans. 

The conflicts in Iraq and Afghanistan have drawn heavily on our reserve component forces. These troops, often the breadwinners of their families, face serious economic burdens during and after deployment. Many are businessowners who face tremendous obstacles in ensuring their businesses are appropriately managed while 

they are gone. One of my fellow Marines, when we deployed to Iraq, was forced to 

rely on the good-will of his community to ensure his family business did not go 

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under while he was deployed. He was a proud businessowner, but had serious difficulties staffing his business while he was deployed. Without funding for advertising, he was forced to turn to the media to let them know that he was still open 

for business. 

A Defense Department study in 2000 showed that 40% of reservists lose income 

when they are called to active duty. Some 12,000 formal and informal Uniformed 

Services Employment and Reemployment Rights Act (USERRA) complaints were 

filed by National Guardsmen and Reservists in FY2004 and FY2005, according to 

the GAO. 

IAVA has called for better outreach and more streamlined referral system for 

USERRA complaints. Currently, a service member wishing to file a complaint is 

forced to move through hurdles that cross three federal agencies and an onslaught 

of paperwork. We also support tougher enforcement of USERRA protections, and believe that employers who consistently violate USERRA should be barred from eligibility for federal government contracts and should face civil and criminal prosecution. In addition, the GAO has outlined a series of recommendations regarding 

USERRA claims referrals, which we hope the committee will seriously consider in 

any reauthorization of the OSC referral program. 

Serving your country should not mean sacrificing your civilian livelihood. Troops 

returning from Iraq and Afghanistan deserve the best possible employment protections. We thank this committee for their work to support and protect our ‘‘citizen 

soldiers.’’ 

Thank you for your time. 

f 

Prepared Statement of Colonel Felix C. Vargas, Jr., USAR (Ret.) 

Senior Advisor, American GI Forum of the United States 

Madame Chairwoman, Ranking Member Boozman, and distinguished Members of 

this Committee, the American GI Forum (AGIF) appreciates this opportunity to 

present its views today regarding the issue of expiring Veterans Affairs programs. 

The AGIF traditionally has not been invited to testify before congressional committees on issues of importance to our men and women who have served and are serving in our country’s armed forces. If my memory serves me correctly, we last appeared before the U.S. House of Representatives Veterans’ Affairs Committee on 18 

May 2004, to update you on our AGIF National Veterans Outreach Program. 

As you may know, the AGIF is a congressionally chartered Veteran Service Organization (VSO), founded 60 years ago by Dr. Hector P. Garcia principally to represent the interests and concerns of American war veterans of Hispanic origin, 

many of whom were denied their veterans benefits following the end of World War 

II. Today, AGIF remains a vibrant non-profit organization working in concert with 

all VSOs to ensure that our nation’s commitments to all our returning military men 

and women and their families are honored. This includes especially our newest generation of veterans coming home from the Global War on Terrorism (GWOT). 

Today, we are here to add our support to the continuation of important veterans 

support programs, currently managed by the Departments of Labor and Veterans 

Affairs. In the interests of time, we will only address the following programs: 

• Incarcerated Veterans Transition Program (IVTP) 

• Department of Labor (DOL) Veterans Employment and Training Program 

(VETS) Claim Referral 

• Apprenticeship and On-Job-Training 

• Post-Vietnam Era Veterans’ Educational Assistance Program, and 

• Survivors and Dependents Educational Assistance 

Incarcerated Veterans Transition Program (IVTP) 

We believe that this program has provided invaluable assistance to incarcerated 

veterans, who are within 18 months of release and who are at risk of homelessness, 

to re-train and re-enter the workforce. The funding provided has enabled many such 

veterans to receive training and related support services to make a successful transition back into the workforce and back into their communities. 

While the IVTP concept and objectives are sound, we have heard of instances 

where incarcerated veterans, once released to the streets, have fallen through bureaucratic cracks, receiving little if any help. They have been told that to get follow 

on assistance, they need to call the VA, make an appointment, and show up with 

their DD–214. In these instances, no efforts were made prior to their release to connect them to medical facilities, for any needed treatment or medication; to housing 

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options; or to employment opportunities. One sister VSO informed us that in cases 

of released veterans who are terminally ill, that often no support is given. 

We do not believe that any such neglect represents the true intent of the IVTP. 

It is important, however, for the Department of Labor to investigate any reported 

failure to provide needed follow on transition support services to an incarcerated 

veteran upon release. 

I am pleased to inform the Subcommittee that my home State of Washington has 

taken an important step to help these veterans. Washington State, working closely 

with VSOs, issues a booklet to incarcerated veterans, titled An Incarcerated Veterans Guidebook for Washington State. The booklet helps the veteran plan for his 

release and provides important information, such as addresses, phone numbers, and 

Web sites that the veteran can use to connect to programs and other assistance that 

are available upon the veteran’s release. The booklet has proved to be such a successful resource that other states have used it as a model for their own guidebooks 

for incarcerated veterans. 

Again, we support the IVTP and see it as a great support program for incarcerated veterans. The bugs in the program and any deficiencies should be corrected to 

ensure that no incarcerated veteran falls through the cracks or worse yet is left behind. 

DOL Veterans Employment and Training Program (VETS) Claim Referral 

The Department of Labor (DOL) Veterans Employment and Training Program 

(VETS) constitutes a pillar in the support structure for veterans. There is no greater 

assistance that can be provided to our returning warriors than job-related training, 

linked to follow-on employment. 

The men and women of our national Guard and Reserve face a unique employment challenge when they return from active duty to their communities. All returning reservists are NOT guaranteed that their old jobs will be waiting for them. I 

saw this first-hand in Germany in the late 1980’s, where German and other European employers would essentially give American reservists a hard choice: active 

duty with your American military unit or your job in Europe. You cannot have both. 

Such was the callous attitude of our so-called allies whose freedom we had achieved 

during two world wars and ever since. 

Fortunately, in the U.S., we have through the DOL’s VETS program the enforcement of the Uniformed Services Employment and Reemployment Act (USERRA). 

USERRA fights discrimination against veterans, individuals entering military service, and members of the National Guard and Reserve. The law protects our veterans 

against retaliation by employers simply because a veteran attempts to exercise a 

USERRA right. Further, the law requires that veterans and others who perform 

qualifying service in the uniformed services, including the National Guard and Reserve, be reemployed by their pre-service employers with the seniority, status and 

rate of pay they would have attained if employment had been continuous. 

We understand, Madame Chairwoman, that an issue before your Subcommittee 

concerns extension of a demonstration project giving the Office of Special Counsel 

(OSC) authority to investigate federal sector USERRA claims brought by persons 

whose Social Security number ends in an odd-numbered digit. We are also informed 

that under the project, OSC will also receive and investigate all federal sector 

USERRA claims containing a related prohibited personnel practice allegation over 

which OSC has jurisdiction, regardless of the person’s Social Security number. 

Our interest here is limited to seeing that aggressive enforcement of USERRA is 

carried out across the board, both by DOL and OSC. We would also like to receive 

assurances that our reservists living in foreign countries are covered by a USERRAlike agreement through the host government. 

Assuming that the demonstration project, as administered by OSC, has shown 

good results, we would support its extension. We respectfully request that a report 

on the demonstration project addressing actions taken and results be provided to 

VSOs, thereby allowing us to evaluate its effectiveness. 

Apprenticeship and On-Job-Training (OJT) 

This program, run by Veterans Affairs, provides veterans and their immediate 

family a great incentive to achieve a co-educational objective. Eligible persons may 

receive a training allowance from the VA to supplement their wages while learning 

a new skill or trade, thereby increasing their financial security and job stability during the training period. 

At a time when we see signs of an imminent recession in our country, it is important that we not lose sight of the contribution that this program makes in battling 

unemployment in a weakened economy. This program is about helping veterans and 

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their families to work and learn while they prepare to fill jobs in both the private 

and public sectors of our economy. 

We are concerned that the law that increased OJT payments to 85 percent of the 

GI Bill payment rate in 2005 expired on 31 December 2007. This means that without new legislation maintaining the 85 percent, the OJT payment rate will drop to 

75 percent as of 1 January 2008. Thus, what has been a top OJT (Veteran) payment 

rate of $935.85 will now drop to $825.75. 

Members of the Subcommittee, we urge you to make permanent the OJT payment 

rate of 85 percent. You should not allow this rate to revert back to the 75 percent 

training rate. Our veterans who depend on these payments are facing daily increases in housing and the cost-of-living expenses. They need every cent that can 

be provided under this program. 

The other comment we would make here is that you should consider offering tax 

incentives to companies who agree to participate in the Apprenticeship program. We 

note that there are too few companies who participate. For starters, we should see 

to it that all defense contractors, many of whom have amassed fortunes by providing 

products and services to the U.S. military, become active supporters of and participants in this Apprenticeship program. 

Veterans Educational Assistance Program (VEAP) 

VEAP is made available to veterans if they elected to make contributions from 

their military pay to participate in this education benefit program. The individual 

contributions are matched on a $2 for $1 basis by the government. The benefits can 

be used to pursue a degree, certificate, correspondence, apprenticeship/OJT training 

programs and vocational flight training programs 

Benefit entitlement to the participating veteran is one to 36 months, depending 

on the number of monthly contributions. The veteran has 10 years from his/her release from active duty to use VEAP benefits. If the entitlement is not used after 

the 10-year period, the portion remaining in the fund is automatically refunded to 

the veteran. 

We strongly support the continuation of the VEAP program and at the highest 

rate possible. 

Survivors and Dependents Educational Assistance 

This is another valuable program that has shown a level of success for veterans’ 

families and should therefore be continued. It provides education and training opportunities and benefits to eligible dependents of veterans for up to 45 months. The 

benefits may be used for degree course work and certificate programs, apprenticeship, and OJT. 

We urge the Subcommittee to endorse continued funding of this program at the 

higher rates. Our veterans’ families would greatly appreciate your understanding 

and support. 

CONCLUSION 

In sum, Madame Chairwoman, the American GI Forum considers the continuation of the VA and DOL programs before the Subcommittee to be a reflection of 

your strong support for our veterans and their families. Taken as a whole, they go 

a long way toward honoring the commitment our nation made to our men and 

women who have served honorably in the military. 

Again, I thank you for allowing the AGIF an opportunity to address you today 

on the review of these important programs. 

f 

Prepared Statement of Hon. Charles S. Ciccolella, Assistant Secretary, 

Veterans’ Employment and Training Service, U.S. Department of Labor 

Chairwoman Herseth Sandlin, Ranking Member Boozman, Members of the Committee: 

I am pleased to appear before you today to discuss certain programs that have 

expired that involve our agency. Your invitation letter lists several programs you 

would like to review. Of the eight programs listed, we will restrict our comments 

to the Incarcerated Veterans Transition Program (IVTP) and the ‘‘Department of 

Labor (DOL) Veterans’ Employment and Training Program (VETS) Claim Referral 

Program to Office of Special Counsel’’ and defer to the Department of Veterans Affairs (VA) on the other programs listed. 

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Incarcerated Veterans Transition Program 

IVTP was originally mandated as a demonstration project using funds appropriated for the Homeless Veterans Reintegration Program (HVRP). The Homeless 

Veterans Comprehensive Assistance Act (P.L. 107–95) amended Title 38 to revise, 

improve and consolidate provisions of law providing benefits and services to homeless veterans. Section 2023 of Title 38 mandated a demonstration program of referral and counseling for veterans who are transitioning from certain institutions and 

at risk of becoming homeless. Authority for IVTP expired September 30, 2007. 

IVTP targeted veterans who were preparing to transition out of incarceration into 

employment in their communities. DOL competitively awarded seven (7) ITVP demonstration grants to provide employment and training services at the federal, state, 

and local levels. During the demonstration project, 4,094 incarcerated veterans were 

assessed by grantees, Disabled Veterans’ Outreach Program (DVOP) specialists, and 

Local Veterans’ Employment Representatives (LVERs). Of those assessed, 2,191 veterans were enrolled into IVTP and received customized employment and training 

services as well as VA benefits. Over half (54%) of IVTP participants successfully 

entered employment earning an average of $10.00 an hour, at an average cost per 

placement of $4,500. This compares very favorably to the annual cost of incarceration of approximately $22,000 per person. 

The IVTP demonstration project has shown positive results in assisting veterans 

to successfully transition from incarceration back into their communities. The program has been successful in reconnecting veterans to available health care benefits, 

reuniting them with family members, and better preparing them to avoid recidivism. The VA’s Incarcerated Veterans Outreach Specialists have coordinated with 

IVTP grantees to assist veterans in obtaining other financial benefits and in securing transitional and permanent housing after their release. Many of the lessons 

learned from the demonstration project will continue to benefit incarcerated veterans. For example, a number of our DVOPs and LVERs received specialized training in dealing with the incarcerated veteran population and they continue to develop 

working relationships with prison personnel that aid incarcerated veterans in 

transitioning to the civilian workforce. 

VETS worked closely with VA, the Department of Justice (DOJ), and DOJ’s Federal Bureau of Prisons on this effort. VETS is working with VA on VA’s final report 

on the demonstration project, which is expected to be forwarded to Congress in April 

2008. 

Demonstration Project with the Office of Special Counsel (OSC) 

In 2004, Congress passed the Veterans Benefits Improvement Act (VBIA). Section 

214 of that Act required the Secretary of Labor and the OSC to carry out a multiyear demonstration project under which about half of all Uniformed Services Employment and Reemployment Rights Act (USERRA) claims made by federal government employees are referred to OSC for investigation, resolution and enforcement. 

The demonstration project was to conclude at the end of September 2007, but was 

extended by Continuing Resolutions through December 31, 2007, when it expired. 

Since the inception of the demonstration program on February 8, 2005, through 

its conclusion on December 31, 2007, VETS received 4,198 USERRA complaints. Of 

those, 693 (16.5%) were federal claims that were subject to the demonstration 

project. VETS transferred 312 of those federal claims to OSC under the demonstration project, including 14 which were transferred because VETS concluded that they 

might involve a prohibited personnel practice. 

VETS worked closely with OSC throughout the project to improve our investigators’ ability to identify potential ‘‘mixed cases,’’ which are USERRA cases that may 

also include related prohibited personnel practices under the federal civil service 

laws. VETS also spurred closer ties by convening monthly meetings in which DOL 

and OSC officials discuss and resolve USERRA issues. 

The Government Accountability Office’s (GAO) Report (GAO–07–907, July 2007) 

evaluating the demonstration project recommended that VETS institute improved 

procedures to ensure claimants are notified of their right to have their case referred 

to OSC, if a federal case, or to DOJ, if a nonfederal case, and to implement an internal review mechanism for all unresolved claims. VETS has fully implemented those 

recommendations and made other programmatic improvements through the updated 

USERRA Operations Manual that went into effect on February 1, 2008. In addition, 

GAO identified areas in our data reporting procedures that have now been addressed. 

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All USERRA Claims Received by VETS 2/8/05 to 12/31/07 

Currently, DOL has 115 trained USERRA investigators and six USERRA Senior 

Investigators who are directly involved in investigating USERRA complaints. Almost all are veterans themselves. They are located where veterans need them 

most—in all 50 states, the District of Columbia, and Puerto Rico. In addition to investigating complaints, these specialists conduct outreach and provide technical assistance to employers, service members, veterans, and veterans’ organizations on 

employment and reemployment issues at the national, state and local levels, including to service members as they are mobilized and demobilized. In addition, VETS 

investigators can call upon a nationwide network of DOL attorneys who are experienced USERRA practitioners, to quickly resolve any legal issues that may arise during an investigation. 

VETS is proud of its record with USERRA since its enactment. For example, over 

the past 11 fiscal years, 91% of federal USERRA cases were resolved by VETS without need for referral to the OSC. Furthermore, 84% of ‘‘meritorious’’ federal 

USERRA cases and 85% of ‘‘meritorious’’ non-federal USERRA cases were resolved 

by VETS (claims granted or settled) reached resolution within 90 days. We also 

have an aggressive outreach program to educate service members and employers on 

their rights and responsibilities under the law. Since September 11, 2001, VETS has 

provided USERRA assistance to over 512,000 service members, employers and others. 

VETS remains committed to continuous improvement of our USERRA program. 

As a result of that commitment, we have made a number of investments to our 

USERRA program, and more are planned. An investment in VETS’ USERRA program is an investment in protecting the employment rights of all service members 

and veterans covered under USERRA, regardless of whether their employer is the 

federal government, a state or local government, or a private entity. 

In sum, the Department of Labor is better positioned than ever to promptly and 

effectively respond to service members’ USERRA issues nationwide. We continue to 

work closely with the Department of Defense’s Employer Support for the Guard and 

Reserve (ESGR), DOJ, and OSC to assist service members in resolving their 

USERRA issues. Although OSC no longer receives USERRA complaints for initial 

investigation, the Department of Labor and OSC will continue to collaborate on 

USERRA cases we refer to OSC that contain related prohibited personnel practices, 

as well as on unresolved cases we refer for possible representation before the MSPB. 

We believe that the demonstration project was useful and both agencies benefited 

from it. However, the demonstration program has served its purpose, and we do not 

believe it should be reauthorized. 

f 

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Prepared Statement of Hon. Scott J. Bloch, Special Counsel, 

U.S. Office of Special Counsel 

Executive Summary 

Not all employers understand their obligations to their employees who, through 

active duty military service, meet their own obligations to our nation. Some servicemembers, mostly members of the National Guard and Reserve who return from active duty, are turned away by their civilian employers upon their return. Some, who 

also serve their country as federal civilian employees, return from active duty only 

to find that the government that sent them to war is unwilling to welcome them 

back to their jobs. 

The Uniformed Services Employment and Reemployment Rights Act 1994 

(USERRA) strengthened the enforcement mechanism for federal employees by giving the Merit Systems Protection Board (MSPB) explicit jurisdiction over USERRA 

violations by federal executive agencies. 

Under USERRA, a person claiming a violation by any employer may make a complaint to the Department of Labor’s Veterans’ Employment and Training Service 

(DOL–VETS) which must investigate and attempt to resolve the matter. If DOL– 

VETS cannot resolve a complaint involving a federal executive agency, the individual may appeal to the MSPB, or request a referral to the U.S. Office of Special 

Counsel (OSC) for possible representation before the MSPB and, if necessary, the 

U.S. Court of Appeals for the Federal Circuit. 

In 2004 Congress mandated a demonstration project whereby OSC would receive 

roughly half of federal USERRA claims directly from claimants. By combining both 

the investigative and prosecutorial functions in one agency, Congress hoped to determine whether OSC could provide better service to federal employees filing 

USERRA claims. 

OSC obtained corrective action for service members in more than one in four of 

the claims filed with us and took less than 120 days on average to resolve cases. 

OSC achieved this high rate of corrective action through its thorough investigations, 

expert analysis of the law, ability to educate federal employers about the requirements of USERRA, and a credible threat of litigation before the MSPB. We have 

the ability to get quick and effective relief, while providing a single place of contact 

with no confusion for all service members who work for the federal government. 

The demonstration project expired on December 31, 2007. OSC lost the authority 

to accept directly USERRA claims made by federally-employed servicemembers. Our 

role in USERRA enforcement continues; if DOL–VETS is unable to resolve a claim, 

a claimant may request that the matter be referred to OSC. We may then represent 

the claimant before the MSPB. 

Granting OSC exclusive jurisdiction over the federal sector USERRA cases would 

ensure that federal employee claimants would benefit from having a single agency 

resolve their claim. For this reason, federal sector USERRA investigation and enforcement is a natural ‘‘fit’’ for OSC. We don’t know when they will start returning 

home in greater numbers, boosting demand for USERRA enforcement. We believe 

that adequate information has been developed to support a decision by Congress to 

assign the task of investigating and enforcing USERRA claims by federal employees 

to OSC. 

INTRODUCTION 

Chairwoman Herseth Sandlin, Ranking Member Boozman, and members of the 

committee: good morning, and thank you for the opportunity to testify today on important matters of concern to our servicemembers, their families, and ultimately our 

national security. 

My name is Scott J. Bloch and I am Special Counsel of the United States and 

head of the U.S. Office of Special Counsel (OSC), an independent investigative and 

prosecutorial agency. 

I appreciate the opportunity to appear before you today to provide my perspectives 

on the enforcement of the Uniformed Services Employment and Reemployment 

Rights Act, or USERRA. While the protections provided under this statute have not 

expired, there has been a significant change recently in how it is enforced for federal 

employees who are also members of the National Guard and Reserve. 

Members of the U.S. military serve our nation through their readiness for combat. 

Members of the U.S. military are graduates of one of the world’s largest training 

organizations, with highly specialized knowledge in areas such as engineering, 

healthcare and information technology. 

As veterans returning to civilian life or continuing to serve as members of the National Guard and Reserve, they can be superb employees because of the skills they 

have acquired as members of the military. Moreover, their military experience 

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1 Under the demonstration project, OSC had exclusive investigative jurisdiction over federalsector USERRA claims where: 1) the claimant had a Social Security Number ending in an odd 

digit, or 2) the claimant alleged a Prohibited Personnel Practice (PPP) as well as a USERRA 

violation (regardless of Social Security Number). DOL–VETS retained investigative jurisdiction 

over all other federal-sector USERRA claims. 

builds judgment, dedication, resourcefulness, and leadership—personal qualities 

that should be valued by employers. 

Unfortunately, not all employers understand their obligations to their employees 

who, through active duty military service, meet their own obligations to our nation. 

Some servicemembers, mostly members of the National Guard and Reserve who return from active duty in Iraq and Afghanistan combat zones and other assignments, 

are turned away by their civilian employers or not afforded their full rights and benefits upon their return. 

It is difficult to imagine an employer welcoming back a returning service member 

with words to the effect, ‘‘Welcome back—you’re fired!’’ But it happens. 

Some members of the National Guard and Reserve, who also serve their country 

as federal civilian employees, return from active duty only to find that the government that sent them to war is unwilling to welcome them back to their jobs. Or, 

they may reinstate them, but with less pay, status, or benefits to which they are 

entitled. 

Civilian employees of the federal government appear to represent about 25 percent of the National Guard and Reserve. The USERRA law specifies that the federal 

government is supposed to be a ‘‘model’’ employer, yet the very government that 

sends them forth into combat might deny them their livelihood when they come 

marching home. 

PROTECTING VETERANS’ JOBS 

The jobs of returning veterans have been protected since 1940, when the Veterans’ 

Reemployment Rights (VRR) law was enacted. The VRR law served our nation reasonably well for more than half a century. Over the years, however, numerous piecemeal amendments and sometimes conflicting judicial constructions made the law 

confusing and cumbersome. There were also some loopholes in the VRR enforcement 

mechanism, especially as it applied to the federal government as a civilian employer. 

Better protections were needed, and in 1994, Congress enacted and President 

Clinton signed into law the Uniformed Services Employment and Reemployment 

Rights Act. USERRA strengthened the enforcement mechanism for federal employees by giving the Merit Systems Protection Board (MSPB) explicit jurisdiction to adjudicate allegations of USERRA violations by federal executive agencies as employers. 

Under USERRA, a person claiming a violation by any employer (federal, state, 

local, or private sector) is permitted to make a complaint to the Department of Labor’s Veterans’ Employment and Training Service (DOL–VETS) which must investigate and attempt to resolve the matter. 

If DOL–VETS cannot resolve a complaint involving a private, state, or local employer, the individual may file a private lawsuit or request a referral to the Attorney 

General for possible representation in federal district court. 

If the employer is a federal executive agency, the individual may appeal to the 

MSPB, or request a referral to OSC for possible representation before the MSPB 

and, if necessary, the U.S. Court of Appeals for the Federal Circuit. 

USERRA thus expanded OSC’s role as protector of the federal merit system and 

federal workplace rights by giving OSC prosecutorial authority over federal-sector 

USERRA claims. However, it also established a bifurcated process in which DOL– 

VETS first investigates and attempts to resolve such claims, followed by possible 

OSC prosecution before the MSPB when there is no resolution by DOL–VETS. 

IMPROVING PROTECTION FOR FEDERAL EMPLOYEES 

Recognizing inefficiencies inherent in this process, as well as OSC’s unique expertise in investigating and prosecuting federal employment claims, Congress included 

in the Veterans Benefits Improvement Act of 2004 (VBIA), a demonstration project 

whereby OSC would receive roughly half of federal USERRA claims from the beginning (i.e., when they are filed and prior to investigation).1

This demonstration project eliminated (for some claims) the often cumbersome, 

time-consuming, bifurcated process whereby federal USERRA claims bounce around 

different federal agencies before being resolved by allowing OSC to apply its extensive experience investigating other federal personnel laws to USERRA. By combining both the investigative and prosecutorial functions in one agency, Congress 

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hoped to determine whether OSC could provide better service to federal employees 

filing USERRA claims. 

The results of the demonstration project speak for themselves: OSC obtained corrective action for service members in more than 25 percent of the USERRA claims 

filed with us and took less than 120 days on average to resolve cases (which includes prosecution as well as investigative time). Twenty-five percent is a very high 

corrective action rate when you consider that the rate of positive findings and corrective action for governmental investigative agencies is usually well under ten percent. OSC achieved this high rate of corrective action through its thorough investigations, expert analysis of the law, ability to educate federal employers about the 

requirements of USERRA, and a credible threat of litigation before the MSPB. 

In addition to obtaining corrective action for the individual claimant, in our role 

as protector of the federal merit system, OSC seeks ‘‘systemic’’ corrective action to 

prevent future violations by an agency. For example, we have assisted agencies in 

modifying their leave and promotion policies to comply with USERRA, provided 

USERRA training to agency managers and HR specialists, and required agencies to 

post USERRA information on their websites and in common areas. 

Our centralized and straight-line process has ensured that the USERRA claims 

we receive are resolved efficiently, thoroughly, and, most important, correctly under 

the law. The numerous corrective actions we obtained for returning servicemembers 

include back pay, promotions, restored benefits and seniority, time off and systemic 

changes that prevent future USERRA violations where they work. 

Congress tied the outcome of the USERRA demonstration project to an evaluation 

by the Government Accountability Office (GAO). OSC participated in the evaluations conducted by the GAO, but we were disappointed that their draft report did 

not meet the April 1, 2007 deadline mandated by Congress. Instead, the final report 

was published only two weeks before the congressional August recess. This left Congress with almost no opportunity to act on USERRA before the demonstration 

project was to conclude on September 30, 2007. 

Moreover, the GAO report did not address the central question that the demonstration project was intended to answer: are federal sector USERRA claimants 

better served when they are permitted to make their complaints directly to OSC, 

for both investigation and litigation, bypassing the bifurcated process? We submit 

that the answer is an emphatic ‘‘yes.’’ 

The demonstration project was extended by Congress by language included in the 

FY2008 Continuing Resolution until December 31, when OSC lost the authority to 

accept directly USERRA claims made by federally-employed servicemembers. Our 

role in USERRA enforcement continues; if DOL–VETS is unable to resolve a claim, 

the claimant may request that the matter be referred to OSC, and we may then 

represent the claimant before the MSPB. 

OSC: READY TO ENFORCE USERRA FOR FEDERAL EMPLOYEES 

We of the U.S. Office of Special Counsel are privileged to be engaged in the enforcement of USERRA. Both as Special Counsel, and as a father of a Marine, I am 

proud of the work we are doing to protect the employment rights of those who give 

of themselves for our national security. 

OSC is uniquely suited to assist members of the National Guard and Reserve 

who, upon their return from active duty, even from combat and with combat-related 

injuries, are turned away by their federal employers, or not afforded the full protections or benefits to which they are entitled. Because the mission of OSC is to protect 

the federal merit system, our specialized USERRA unit is staffed with attorneys and 

investigators who are experts in federal personnel law and have years of experience 

investigating, analyzing, and resolving allegations of violations of federal employment rights. 

OSC is the only federal investigative agency that can provide a true single point 

of contact for federal employees making claims under USERRA. Even as exclusive 

investigative jurisdiction has returned to DOL–VETS, USERRA cases involving Prohibited Personnel Practices still have to be passed to OSC. 

We are proud of our achievements enforcing USERRA. We filed the first-ever 

prosecutions by OSC in the law’s history, obtaining corrective action in several cases 

that had been delayed for years or considered non-winnable. For example, in that 

first ever prosecution, we obtained more back pay than originally requested by the 

claimant, her attorneys fees, and interest on those amounts. The case of an Army 

Corps of Engineers employee, who was not reemployed after serving in the Air 

Force, remained unresolved until OSC received the case. We prosecuted before the 

MSPB and obtained full corrective action for the service member, including $85,000 

in back pay, reemployment in his former position, and full restoration of benefits. 

And, when an injured Iraq war veteran returned from duty only to be sent home 

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by his federal employer because he could no long perform his former job, we convinced the agency to find him a suitable job consistent with his physical limitations, 

along with back pay. 

That same year, I authorized two other USERRA prosecutions. Once again, we 

obtained full corrective action for both servicemembers. They testified before the 

House Veterans’ Affairs Committee in June 2004 about the difficulties confronting 

a service member who files a USERRA claim. I also testified that day—coincidentally same day we filed the first ever OSC prosecution under USERRA. It was not 

that there were not meritorious claims before—there just had not been the commitment to send a message to the federal government that USERRA violations would 

not be tolerated. 

I also set up the first unit at OSC dedicated to USERRA led by an experienced 

litigator and national USERRA expert. I made it a priority of my administration at 

OSC to make a difference in the enforcement of USERRA along with other laws that 

OSC enforces. 

We worked closely with the House Veterans’ Affairs Committee to improve conditions for service members who had encountered long delays, sometimes of three 

years or more, at the Department of Labor. And when (or if) the service member 

was informed of the right to have OSC consider the claim for prosecution, OSC 

would invariably have to reinvestigate the matter to unearth the real facts. 

The VBIA demonstration project has been a significant boon to service members 

who were lucky enough to have a Social Security number that ended in an odd number. We have the ability to get quick and effective relief, while providing a single 

place of contact with no confusion for all service members who work for the federal 

government. 

We are committed to getting as much relief as the law allows for our brave service 

members, and doing so as quickly as possible. These patriots have given their all 

in the service of this great nation. They should never be hung out to dry by a long, 

drawn-out, confusing process. OSC is passionate about obtaining relief for all who 

come to us, and no less for the soldiers of our country who also serve in the federal 

government. 

Granting OSC exclusive jurisdiction over the federal sector USERRA cases would 

ensure that federal employee claimants would benefit from having a single agency 

resolve their claim. For this reason, federal sector USERRA investigation and enforcement is a natural ‘‘fit’’ for OSC. Moreover, it would remove the burden from 

the Department of Labor’s Veterans’ Employment and Training Service to navigate 

federal personnel law, freeing them to focus on providing their best service to 

USERRA claimants from the private sector and those in state and local governments. 

Thus, the benefit to service members would be doubly positive—for federal service 

members who would benefit from OSC’s specialized experience, and for those private 

sector service members who would benefit from greater attention to their claims at 

DOL–VETS. 

THE COMING USERRA ‘‘SURGE’’ 

Today, America is in the middle of the largest sustained military deployment in 

30 years. That deployment is not limited to the approximately 200,000 servicemembers in Iraq and Afghanistan at this moment. In recent years, the number of 

members of the National Guard and Reserve mobilized at one time peaked at more 

than 212,000. As of the end of January, the Department of Defense reported that 

95,324 members of the National Guard and Reserve had been mobilized and were 

on active duty. It is when these servicemembers end their active duty that they may 

find they are no longer welcome to return to their civilian jobs and are eligible to 

file a claim under USERRA. 

Right now, with returning war vets a comparative trickle, USERRA claims are in 

the hundreds. What will happen if and when that trickle turns into a flood? Will 

we see a ‘‘spike’’ in the number of claims filed by returning servicemembers who 

have been turned away from their employers? Will the government demonstrate its 

support for our troops by being fully ready to provide prompt and effective action 

on these claims? 

We don’t know when they will start returning home in greater numbers, boosting 

demand for USERRA enforcement. We believe that adequate information has been 

developed to support a decision by Congress to assign the task of investigating and 

enforcing USERRA claims by federal employees to OSC. We are poised to assume 

this responsibility and to do our part in making their transition back to civilian life 

as smooth as possible. 

Thank you for your attention and I look forward to your questions. 

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Prepared Statement of Keith Pedigo, Associate Deputy Under Secretary for 

Policy and Program Management, Veterans Benefits Administration, 

U.S. Department of Veterans Affairs 

Madam Chairwoman and members of the Subcommittee, I appreciate the opportunity to appear before you today to discuss expiring VA programs. 

Traditional and Hybrid ARMs 

Under the provisions of 38 U.S.C. § 3707, VA was authorized to conduct a demonstration project to guarantee traditional adjustable rate mortgages (ARMs) during 

fiscal years 1993 through 1995. Congress did not extend this authority when it expired. 

The Veterans Benefits Improvement Act of 2004 (Public Law 108–454) reinstated 

VA’s authority to guarantee traditional adjustable rate mortgages through fiscal 

year 2008 and also authorized VA to conduct a demonstration project to guarantee 

hybrid adjustable rate mortgages during fiscal years 2004 through 2008 under the 

provisions of 38 U.S.C. § 3707 and 38 U.S.C. § 3707A, respectively. 

Traditional ARMs are mortgages in which interest rate adjustments may occur on 

an annual basis. VA-guaranteed ARMs limit the annual interest rate adjustments 

to a maximum increase or decrease of 1 percentage point. Additionally, interest rate 

increases for VA ARMs are limited to a maximum of 5 percentage points over the 

life of the loan. 

Hybrid ARMs are mortgages having an interest rate that is fixed for an initial 

period of more than one year and adjusts, usually annually, thereafter. The most 

popular non-VA hybrid ARMs are those with the initial interest rate set for 3 years, 

5 years, 7 years, or 10 years, and the potential for annual adjustments thereafter. 

These loan products are referred to in the mortgage industry as 3/1, 5/1, 7/1, and 

10/1 ARMs, respectively. After a hybrid ARM’s initial fixed rate period ends, the 

mortgage is subject to interest rate adjustments, typically on an annual basis. Adjustments are indexed to various indices and, generally speaking, there are no ‘lifeof-loan’ limits on interest rate increases. 

In contrast, for VA-guaranteed hybrid ARMs, for which the initial contract interest rate remains fixed for less than five years, adjustments are limited to a maximum increase or decrease of one percentage point annually, and the ‘life-of-loan’ 

interest rate increase is limited to five percentage points. For VA hybrid ARMs for 

which the initial contract interest rate remains fixed for five years or more, annual 

adjustments are limited to two percentage points and the ‘life-of-loan’ interest rate 

increase is limited to six percentage points. All VA adjustable rate mortgage products are underwritten with the same stringency as VA fixed-rate loans, and therefore, are not subprime products. 

VA’s authority to offer veterans the options of acquiring VA-guaranteed ARMs 

and hybrid ARMs expires on September 30, 2008. If extended, we estimate that this 

authority would cost $3 million in FY 2009 and $14 million over ten years. At this 

time, we do not object to making the provisions of 38 U.S.C. §§ 3707 and 3707A permanent provided the Congress identifies offsets for the increased direct spending. 

On-the-Job Training and Apprenticeship 

Individuals eligible for educational assistance programs administered by VA may 

use their benefits in approved on-the-job (OJT) or apprenticeship training programs. 

Under the Montgomery GI Bill—Active Duty (MGIB–AD), Montgomery GI Bill—Selected Reserve (MGIB–SR), Reserve Educational Assistance Program (REAP) and 

Post-Vietnam Era Veterans’ Educational Assistance Program (VEAP), the monthly 

educational assistance allowance for such training is calculated as a percentage of 

the full-time monthly institutional benefit rate and paid monthly in arrears based 

on the training completed. Education assistance allowances under those programs 

are paid at the rate of 75 percent of the full-time rate for the first six months of 

training, 55 percent during the next six months, and 35 percent for the remaining 

months of the program. A training assistance allowance under the Survivors and 

Dependents’ Educational Assistance (DEA) program is payable for full-time pursuit 

of OJT/Apprenticeship training as provided in 38 U.S.C. § 3687. That section sets 

forth declining rates of such allowance for the first, second, and third 6 months, and 

for the fourth and any following 6 months of the training program, rather than as 

a percentage of the full-time institutional rate. 

Public Law 108–454 provided for a temporary ten percent increase in the amount 

of benefits payable for pursuit of OJT and apprenticeship programs. This increase 

in benefits was payable for the period October 1, 2005, to December 31, 2007. As 

of January 1, 2008, payments for OJT and apprenticeship programs reverted to 

their previous levels. Between October 1, 2005, and December 31, 2007, an individual receiving OJT/Apprenticeship benefits through the MIGB–AD in his or her 

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first six months of training received $935.85 per month. After December 31, 2007, 

that individual receives $825.75 per month. 

For fiscal year 2007, VA paid benefits for OJT/apprenticeship training to approximately 17,700 individuals through their respective education benefit program. A 

higher monthly training assistance allowance supplement can provide an incentive 

for individuals to accept trainee positions they might not otherwise consider. The 

Department of Labor (DOL) states that jobs generally requiring OJT training will 

account for half of all jobs by 2016 (DOL Report, Employment Outlook 2006–2016, 

November 2007). Prior to the sunset date of the provisions in PL 108–454, VA proposed legislation that would extend the temporary increase in the rates of payment 

to individuals pursuing apprenticeship and on-the-job training programs. We recommend reinstatement of the benefit rate increase and support making the increase 

permanent. 

We defer to the Department of Defense regarding OJT and apprenticeship rates 

under the MGIB–SR, as it is a program administered by that Department under 

Title 10, United States Code. While REAP is also administered under Title 10, its 

rates are tied to the MGIB–AD rate. Therefore, a rate increase or decrease to the 

MGIB–AD rate will have the same corresponding effect on rates payable under 

REAP. 

Incarcerated Veterans Transition Program (IVTP) 

The ‘‘Homeless Veterans Comprehensive Assistance Act of 2001’’ (Public Law 107– 

95) required VA and DOL to provide a demonstration project of referral and counseling services to veterans who were institutionalized. This demonstration program 

was pilot in seven areas and was funded by DOL’s Homeless Veterans’ Reintegration Program. Both VA and DOL required grantees to demonstrate effective counseling and referral to employment, including follow-up for incarcerated veterans. 

The Incarcerated Veterans Transition Program (IVTP) is a demonstration program 

focused on pre-release and community-based employment services delivered by nonprofit community agencies to veterans being released from Federal or State prisons 

and jails. IVTP employment specialists also referred veterans to other needed services, including VA medical, psychiatric and social services, and veterans financial 

benefits. A pilot observational evaluation of IVTP used community agency, VA services use, and U.S. Department of Justice rap sheet data collected on a convenience 

sample of 783 incarcerated veterans. 

As a result of the IVTP, veterans who had been incarcerated were more likely to 

be employed after release and were less likely to be re-arrested in the year following 

release. Regression analyses adjusting for criminal justice factors indicated that 

both employment and health services were negatively related to re-arrest, supporting an important objective of IVTP. These encouraging preliminary results 

should be tested in any expansion of the pilot initiative, incorporating lessons 

learned from the pilot evaluation process and other outcome research on employment and criminal recidivism. 

Madam Chairwoman, this concludes my testimony. I greatly appreciate being here 

today and look forward to answering your questions. 

f 

Statement of Vivianne Cisneros Wersel, Member, 

Government Relations Committee, Gold Star Wives of America, Inc. 

‘‘With malice toward none; with charity for all; with firmness in the right, 

as God gives us to see right, let us strive to finish the work we are in; to 

bind up the Nation’s wounds, to care for him who has borne the battle, his 

widow and his orphan.’’ 

. . . President Abraham Lincoln, Second Inaugural Address, March 4, 1865 

Madam Chairwoman and members of the Subcommittee on Economic Opportunity 

of the House Committee on Veterans’ Affairs, thank you for the opportunity to submit my written testimony on behalf of Gold Star Wives of America. 

My name is Vivianne Wersel, and I am the surviving spouse of Lieutenant Colonel Rich Wersel, Jr., United States Marine Corps. 

My husband died suddenly on February 4, 2005, one week after he returned from 

his second tour of duty in Iraq. The day he died began as a seemingly routine day, 

but it was the day that my life changed dramatically. At this point in time my life 

was divided into two separate pieces—‘‘before’’ and ‘‘after’’. Before that day I was 

focused with great intent in a certain direction, but that day and for many days 

thereafter that I was numb and frozen. 

Through the fog of grief I could see only one thing clearly—our children. Long 

term goals quickly melted away. In addition to processing my own feelings of prorfrederick on PROD1PC67 with HEARING

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found grief, I knew that somehow I had to fulfill my husband’s role of keeping the 

family financially secure. College for our children loomed on the horizon, and college 

tuition for our two children rested solely on my shoulders. At that time Richard, 

our son, was 14 and Katie, our daughter, was 12. There were many days that I 

wanted to stay home, but quitting my job was not an option as I was now the breadwinner. It was important to maintain job security, and the requirements of my profession as an audiologist were changing. I realized that I needed to pursue further 

education in my field of endeavor. 

This was the time to use my Dependents Educational Assistance (Chapter 35) 

benefits from the Department of Veterans Affairs. To pursue a Doctorate of Audiology I had to use a distance learning program because there were no universities 

in my area which offered the program I needed, and I had to be enrolled in this 

distance learning program by December 2006. 

Today I am no closer to obtaining this benefit than I was a year ago. I am testifying today because of the difficulties I had using this benefit. Either some universities do not have the staff to manage the required paperwork or VA paperwork has 

been sent to the wrong location. 

I received my Certificate of Eligibility dated January 24, 2007, and I submitted 

my paperwork as instructed by the VA to the university at that time. It has been 

a year since I started my doctoral program, and I have spent hours on the phone 

trying to find out why I am not receiving these educational benefits in addition to 

my duties as the sole parent of two active teenagers, my studying and my job as 

an audiologist. 

Finally on June 12, 2007, I was told by the university that my program was not 

a VA approved program. Instead of taking no for an answer, I wrote more letters 

to the university, educating them on my VA benefits, ensuring that they were aware 

of my status, and why I was returning to school. This time I honed in on the application process. Was it too difficult? Could I help them? In January 2008 the university finally replied that while the application for educational benefits was rejected 

because it was not a VA approved program, they would complete the application for 

benefits and submit it to the VA. Through a series of many phone calls, I recently 

learned that my application is still not in the VA system; my file is in the Atlanta 

office, and it should be in the Buffalo office because of the location of the university. 

The university’s residential program has three VA certifiers, and if my file had been 

transferred to Buffalo in the beginning that office would have been aware of the VA 

certifier on the university campus who could have assisted. 

I have lost confidence in a program that should have worked synergistically 

among the VA, the educational institution and the survivor. As of today I have received no payment, and the only information in the VA educational system concerning me is my statement of eligibility. 

Another educational issue which concerns surviving spouses is that as long as the 

surviving spouse is on active duty serving their country he or she is not allowed 

to use their survivors’ educational benefits. Active duty service members who are 

also surviving spouses are barred from the survivor educational benefit until they 

leave active duty. If an active duty service member who is also a surviving spouse 

has the Montgomery GI Bill, this earned and paid for benefit will be offset by their 

Chapter 35 benefit. Their deceased spouse paid for the Chapter 35 benefits with 

their life, and the active duty survivor paid for the benefits of the Montgomery GI 

Bill. If an active duty service member who is also a surviving spouse exhausted his 

or her benefits under the Montgomery GI Bill prior to the death of his or her active 

duty spouse, would this offset apply and leave them with no Chapter 35 benefits? 

The President’s proposed budget would allow a service member to transfer his or 

her GI Bill benefits to a spouse. Under the current rules the active duty member 

who is also a surviving spouse would have to wait until discharged or retired to use 

this benefit. If the surviving spouse chooses to stay in the military service until retirement this could mean a wait of 19 or more years to use these benefits. Will an 

active duty service member who is also a surviving spouse be allowed to retain this 

benefit or will he or she lose this benefit which was paid for with their spouse’s life 

and dedication to their country? Would allowing the small number of surviving 

spouses in this dual situation to use both benefits make a significant financial impact on this country’s budget? 

In addition, if the active duty service member who is also surviving spouse chooses to leave the service so he or she can use the Chapter 35 benefits, this contributes 

to the retention problems of the Armed Forces. 

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Statement of Richard F. Weidman, Executive Director for Policy and 

Government Affairs, Vietnam Veterans of America 

Madame Chairwoman, Ranking Member Boozman and distinguished Members of 

the Subcommittee, thank you for giving Vietnam Veterans of America (VVA) the opportunity to offer our brief comments in this statement for the record on a number 

of expiring authorities, and whether those authorities should be renewed. 

Incarcerated Veterans Training Programs 

This is a small but effective program that deserves not only to be renewed but 

better funded and expanded. The problem of veterans incarcerated is a longtime 

problem that is rarely spoken of but has been a concern of VVA since our inception 

30 years ago. VVA has a number of chapters inside prisons, and many of our chapters have programs of regular visitation of veterans who are incarcerated. We have 

worked for many years to get programs in place that assist with helping veterans 

who are incarcerated overcome problems while they are still in prison, primarily 

neuro-psychiatric wounds and the need to acquire marketable skills in the legitimate economy so they can get a job quickly when they are released. 

While VVA chapters and state councils have such programs from Louisiana to 

Connecticut to Ohio to Washington state, perhaps the most extensive work has been 

done in New York. Most of this work is low key, and done without fanfare or publicity. More than ten years ago we effected a tripartite agreement between VA, VVA 

New York State Council, and the New York State Department of Correctional Services to establish the ‘‘Veterans Rehabilitation Training’’ (VRT) program at 17 facilities. This agreement called for training at the Correctional Officers Academy in the 

special problems of veterans, particularly combat veterans. It resulted in tele-medicine counseling and other medical services being available to honorably discharged 

veterans in state prisons, establishment of pre-release planning programs, and in 

general preparation to reconstruct the lives of these veterans on a positive track 

after their release. A study of recidivism done in the mid-nineties showed a recidivism rate for those who did not complete the VRT program to be more than 70% 

while those who did complete the VRT Program had a recidivism rate of less than 

30% 24 months after release. The point is that such programs, when pursued quietly by dedicated staff and volunteer advocates work to help these veterans go on to 

lead constructive and productive lives. 

There are two programs for diversion to avoid incarceration in the first place by 

means of the newly established ‘‘veterans court’’ in Buffalo, N.Y., and an intensive 

training program of all law enforcement personnel in Onondaga County (Syracuse), 

N.Y. that have been started in the last few months. While it is too early to tell how 

effective these programs will be in avoiding incarceration of these veterans in the 

first place, efforts like this have great promise for reducing this problem for the 

young combat veterans returning home today. Both of these programs were initiated 

by Vietnam combat veterans who are members of VVA and include judges, retired 

and still active law enforcement officers, and are done in cooperation with VISN 2 

of the Veterans Health Administration of the VA. 

Higher Rates of Compensation 

VVA favors re-establishing higher rates of compensation for the Survivor & Dependents Educational Assistance program that is more in line with the high cost 

of even public higher education today. The primary reason for non-completion in 

this program (and the Montgomery GI Bill, we might add) is that the rates do not 

adequately cover the costs incurred in being able to finish and get a degree that 

will lead to higher earnings in the long run. When it is a tough choice of economic 

survival in the short run of the family or completing education then education loses. 

We owe it to those who have died or been permanently and totally disabled as a 

result of service to country in the military to take proper care of their families. 

Similarly, re-establishing the higher rates of compensation for the Apprenticeship 

and On-The-Job Training will make it possible for veterans to survive economically 

while they complete these programs that will lead to much better and more stable 

long term employment, therefore affecting a pay off on the earlier investment that 

these veterans have earned. It is both the right thing to do, and it is the smart 

thing to do in regard to both the health growth of the American economy and in 

regard to higher future tax receipts by the Federal government. 

Pilot Program for the Special Counsel & Veterans Preference Complaints 

VVA generally favor extending this program, but cautions that there is no effective enforcement of veterans’ preference laws in federal employment in our view. 

The Department of Labor, Veterans Employment & Training Service (VETS) has 

failed miserably in meeting their responsibilities pursuant to the Veterans Employrfrederick on PROD1PC67 with HEARING

62 

ment Opportunities Act 1998. Since the preliminary investigation the referral action 

is supposed to be performed by VETS, the system breaks down before the complaint 

ever reaches the Special counsel. Once the few complaints that have gotten that far 

is received by Special Counsel the results have not exactly been encouraging, but 

there appears to be more competence and expertise at that level than at the VETS. 

Frankly we need a much more effective redress mechanism that does not currently 

exist for veteran preference eligible persons who have had their rights abrogated. 

Further, the VEOA law needs to be changed so that any violation of veterans preference law ‘‘SHALL’’ be considered a prohibited personnel practice (the law currently reads ‘‘MAY’’), and managers and supervisors and others who hold responsible positions in regard to hiring need to be held strictly accountable for not according these veterans’ preference eligible persons with the rights they have earned by 

virtue of military service. 

ARMS Demonstration Program 

While VVA does not oppose the requested extension of this program, we urge 

great caution to both individual veterans and to the VA in regard to the need to 

avoid veterans getting into a position whereby they cannot re-pay loans that are 

‘‘adjusted’’ upward quickly to the point where veterans cannot meet their payments 

and therefore lose their homes. It is our understanding that many at VA and some 

veterans are happy with the way this program has operated thus far, but in the 

credit market as it exists today everyone should proceed cautiously and conservatively. 

Thank you for the opportunity to offer these views here today. I would be happy 

to answer any written questions you may have, and to work with staff to take any 

action you deem necessary on these topics. 

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rfrederick on PROD1PC67 with HEARING