FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues
Released: 2012-01-05T00:00:00

Introduction

Each year, the Senate and House Armed Services Committees report their respective versions of the National Defense Authorization Act (NDAA). These bills contain numerous provisions that affect military personnel, retirees, and their family members. Provisions in one version are often not included in another; are treated differently; or, in certain cases, are identical. Following passage of these bills by the respective legislative bodies, a Conference Committee is usually convened to resolve the various differences between the House and Senate versions.

In the course of a typical authorization cycle, congressional staffs receive many requests for information on provisions contained in the annual NDAA. This report highlights those personnel-related issues that seem to generate the most intense congressional and constituent interest, and tracks their statuses in the FY2012 House and Senate versions of the NDAA.

The House version of the National Defense Authorization Act for Fiscal Year 2012, H.R. 1540 , was introduced in the House on April 14, 2011; reported by the House Committee on Armed Services on May 17, 2011 ( H.Rept. 112-78 ); and passed by the House on May 26, 2011. The Senate version of the NDAA, S. 1867 , was passed on December 1, 2011. On December 14, 2011, the House passed the conference reported version of H.R. 1540 . On December 15, 2011, the Senate passed H.R. 1540 , and President Obama signed P.L. 112-81 into law on December 31, 2011.

The entries under the headings "House," "Senate," and "P.L. 112-81" in the tables on the following pages are based on language in these bills, unless otherwise indicated.

Where appropriate, related CRS products are identified to provide more detailed background information and analysis of the issue. For each issue, a CRS analyst is identified and contact information is provided.

Some issues were addressed in the FY2011 National Defense Authorization Act and discussed in CRS Report R41316, FY2011 National Defense Authorization Act: Selected Military Personnel Policy Issues , coordinated by [author name scrubbed]. Those issues that were considered previously are designated with a " * " in the relevant section titles of this report.

Topics have been arranged in the order in which they were reported in the House report.

Adoption of Military Working Dogs

Background: In 2000, Congress passed P.L. 106-446 entitled "To require the immediate termination of the Department of Defense practice of euthanizing military working dogs at the end of their useful working life and to facilitate the adoption of retired military working dogs by law enforcement agencies, former handlers of these dogs, and other persons capable of caring for these dogs."

Discussion: Military working dogs are trained to be fearless and aggressive. These traits may or may not be desired outside of the military or law enforcement environments. In passing P.L. 106-446 , Congress included language that limited liability of claims arising out of such a transfer including, injury, property damage, additional training, etc. There are public concerns for the welfare of these dogs. There are also concerns for any family member of deceased or seriously wounded members of the Armed Forces who care for these dogs, but who were not responsible for their original training and handling. A recent article noted that a small percent of the dogs deployed suffer from 'canine PTSD' which can lead to 'troubling behavior.'

CRS Point of Contact: [author name scrubbed], x[phone number scrubbed].

*Active Duty End Strengths

Background: The National Defense Authorization Act for Fiscal Year 2008 ( P.L. 110-181 ) authorized the Army to grow by 65,000 and the Marine Corps by 27,000, to respective end strengths of 547,400 and 202,000 by FY2012. In FY2009, 2010 and 2011, the Army was authorized additional, but smaller increases to an FY2011 end strength of 569,400. Even with these increases, the nation's Armed Forces, especially the Army and Marine Corps, continue to experience high deployment rates and abbreviated "dwell time" at home stations. But with withdraw of U.S. forces from Iraq in December 2012 and plans to begin withdrawing U.S. forces from Afghanistan in July, 2012, the Secretary of Defense announced on January 6, 2011 that the Active Army would begin a reduction in its end strength by 22,000 in 2012. This reduction would be followed by an additional reduction of 27,000 to begin in FY2015 and be completed in FY2016.

Discussion: FY2012 represents the first year of the Army drawdown with a reduction of 7,400 in FY2012. There are less dramatic reductions slated for the Navy (-2,961) and a slight increase for the Air Force (+600) (see table below). The House Armed Services Committee (HASC) however, expressed concern with these reductions in light of the existing 20,000 nondeployable personnel currently in the Army (17% of the Active Component) and the 9,000 soldiers who remain in the disability processing system for up to a year. The committee also expressed concern about reducing end strength when only marginal improvement has been realized in dwell time and uncertainty remains over the withdrawal from Afghanistan.

The Senate generally supported the House's strength recommendations but did recommend a further reduction of 39 for the Navy. The Senate's recommended strength levels were supported by the Conference Committee.

The Congressional Budget Office (CBO) estimates that the House-proposed decrease of 9,800 military personnel will save $5.8 billion over the 2012 to 2016 period. This savings results from reductions in pay and benefits for fewer personnel and operation and maintenance costs.

Reference(s): Previously discussed in CRS Report R41316, FY2011 National Defense Authorization Act: Selected Military Personnel Policy Issues , coordinated by [author name scrubbed], and CRS Report R40711, FY2010 National Defense Authorization Act: Selected Military Personnel Policy Issues , coordinated by [author name scrubbed]. See also CRS Report RL32965, Recruiting and Retention: An Overview of FY2009 and FY2010 Results for Active and Reserve Component Enlisted Personnel , by [author name scrubbed].

CRS Point of Contact: Charles Henning, x[phone number scrubbed].

*Selected Reserves End Strength

Background: Although the Reserves have been used extensively in support of operations since September 11, 2001, the overall authorized end strength of the Selected Reserves has declined by about 2% over the past ten years (874,664 in FY2001 versus 856,200 in FY2011). Much of this can be attributed to the reduction in Navy Reserve strength during this period. There were also modest shifts in strength for some other components of the Selected Reserve. For comparative purposes, the authorized end strengths for the Selected Reserves for FY2001 were as follows: Army National Guard (350,526), Army Reserve (205,300), Navy Reserve (88,900), Marine Corps Reserve (39,558), Air National Guard (108,022), Air Force Reserve (74,358), and Coast Guard Reserve (8,000). Between FY2001 and FY2011, the largest shifts in authorized end strength have occurred in the Army National Guard (+7,674 or +2%), Coast Guard Reserve (+2,000 or +25%), Air Force Reserve (-3,158 or -4%), and Navy Reserve (-23,400 or -26%). A smaller change occurred in the Air National Guard (-1,322 or -1.2%), while the authorized end strength of the Army Reserve (-300 or -0.15%) and the Marine Corps Reserve (+42 or +0.11%) have been largely unchanged during this period.

Discussion: The authorized Selected Reserve end strengths for FY2012 are the same as those for FY2011 with the exception of the Air Force Reserve and the Navy Reserve. The Air Force Reserve's authorized end strength for FY2011 was 71,200, but the administration requested an increase to 71,400 (+200). The Navy Reserve's authorized end strength for FY2011 was 65,500, but the administration requested an increase to 66,200 (+700). The final bill approved the administration's requested increases.

CRS Point of Contact: [author name scrubbed], x[phone number scrubbed].

New Reserve Activation Authorities

Background: At present, there are three major statutory provisions by which reservists can be involuntarily ordered to active duty by the federal government for an extended period of time. Depending on which of these provisions is used, a reserve activation is commonly referred to as either a Presidential Reserve Call-up (PRC), a Partial Mobilization, or a Full Mobilization. They are authorized by law in 10 USC 12304, 12302, and 12301(a), respectively. These provisions differ from each other in terms of the statutory requirements for utilization, the number and type of reservists called up, and the duration of the call up. There has been debate in recent years about modifying these authorities to allow for broader use of the reserve components, particularly to enhance federal capabilities for disaster response.

Discussion:

The Senate bill contained two new provisions for activating units and individuals in the Reserve Components. Section 515 in the Senate bill would allow the Secretary of Defense to involuntarily order units and individuals of the Army Reserve, Navy Reserve, Marine Corps Reserve, and Air Force Reserve to active duty for up to 120 days "when a governor requests federal assistance in responding to a major disaster or emergency." National Guard forces are not included in this authority, but state governors already have the ability to activate their state National Guard forces and to request support from other state National Guards under the Emergency Management Assistance Compact. The Coast Guard Reserve already has a short-term, disaster response activation authority (14 USC 712). There was no analogous provision in the House bill. Section 515 of the final bill adopted the Senate's language.

Section 515 of the Senate bill also contained language specifying that when the armed forces and the National Guard are employed simultaneously in support of civil authorities within the United States, a dual status commander should be appointed. A dual status commander is a military officer who simultaneously serves as a state National Guard officer under the control of his or her governor, and as a federal military officer under the control of the President. A dual status commander is thus able to command non-federalized National Guard forces and federal forces via these separate chains of command. The language of this provision also specifies that "when a major disaster or emergency occurs in any area subject to the laws of any State, Territory, or the District of Columbia, the Governor of the State affected normally should be the principal authority supported by the primary Federal agency and its supporting Federal entities, and the Adjutant General of the State or his or her subordinate designee normally should be the principal military authority supported by the dual-status commander when acting in his or her State capacity." There was no analogous language in the House bill. Section 515 of the final bill adopted the Senate's language.

A separate provision of the Senate bill (Section 511) would add a new authority to involuntarily activate individuals and units of the Selected Reserve, and members of the Individual Ready Reserve's "mobilization category," for up to 365 consecutive days of active duty. The authority to activate reservists under this provision rests with the Service Secretary, but it may only be invoked for missions that are "preplanned" and where the reserve component activations were budgeted for. According to the Senate Committee report, this new authority "is not designed for use for emergent operational or humanitarian missions, but rather to enhance the use of reserve component units that organize, train, and plan to support operational mission requirements to the same standards as active component units under service force generation plans in a cyclic, periodic, and predictable manner" No more than 60,000 members of the National Guard and Reserves may be serving on active duty under this authority at any given time. There was no analogous provision in the House bill. Section 516 of the final bill largely adopts the Senate language, but clarifies that the "preplanned mission" must be in support of a combatant command, and that only units of the Selected Reserve may be activated.

CRS Point of Contact: [author name scrubbed], x[phone number scrubbed].

General Officer/Flag Officer Reform

Background: 10 U.S.C. Section 525 establishes the criteria for the number of general/flag officer authorizations and provides the formula for determining the appropriate grade distribution of these positions. As of July 2010, there were 967 actual general/flag officers on active duty but general/flag officer authorizations allow for up to 982 positions. Of these 982 positions, 658 are slated to fill in-service requirements while an additional 324 fill joint duty assignments.

In March, 2011, Secretary of Defense Gates released a 48-page memo that announced a number of efficiency initiatives designed to save $178 billion over the 2012 to 2016 period. One of the initiatives would eliminate 101 general/flag officer positions from the FY2010 baseline and downgrade an additional 22 positions by filling them at a lower grade. These positions would be eliminated and downgraded over the next two years as U.S. forces in Iraq and Afghanistan are withdrawn.

Discussion: Congress is sensitive to the general/flag officer content of the services, especially when compared to service end strength. These general/flag officer to other service member ratios have worsened since 9/11 and today the Air Force, for example, has one general for every 1,045 airmen as compared to the Army which has one general for every 1,764 soldiers. The changes noted in Section 502 are in addition to the eliminations and downgrades identified by Secretary Gates.

CRS Point of Contact: [author name scrubbed], x[phone number scrubbed].

Vice Chief of the National Guard Bureau

Background: In 1994, Congress established the position of Vice Chief of the National Guard Bureau (VCNGB), with the grade of major general (two-star general). Ten years later, it was redesignated as the Director of the National Guard Bureau Joint Staff to reflect the duties of the position in light of the Bureau's reorganization, which included a joint staff. Section 904 of S. 1390, the Senate-passed version of the FY2010 National Defense Authorization Act, contained a provision to re-establish the position of VCNBG, with a grade to be determined by the Secretary of Defense. This provision was not included in the final bill, but a separate provision did require DOD to provide an assessment of the necessity of reestablishing the position of VCNGB. DOD has not yet submitted this report.

Discussion: In the FY2008 National Defense Authorization Act ( P.L. 110-181 , Title XVIII), Congress elevated the grade of the Chief of the National Guard Bureau (CNBG) from lieutenant general (3-star general) to general (4-star general) and added new responsibilities to the position. Supporters of re-establishing the VCNGB position argue that the CNGB needs someone to assist him in carrying out his duties, just as the Service Chiefs and the Chairman of the Joint Chiefs of Staff each have Vice Chiefs to assist them. They also note that a Vice Chief should be at least the same rank as the Directors of the Army National Guard and the Air National Guard, both of whom are lieutenant generals, in order to effectively act in the place of the CNGB when required. Some may consider the redesignation and increase in grade as unnecessary, particularly in a time when general officer positions are being eliminated or downgraded within the Department of Defense.

Both the House bill and Senate bill would reestablish the VCNGB position with the grade of lieutenant general. However, the House provision contained criteria for selection to the position which were not in the Senate bill. It also made the position a presidentially appointed position, subject to Senate confirmation, while the Senate provision specified that the Secretary of Defense would appoint the VCNGB. Section 511 of the final bill adopted the House language.

CRS Point of Contact: [author name scrubbed], x[phone number scrubbed].

Pre-separation Counseling for Members of the Reserve Components

Background: 10 U.S.C. 1142 requires the Service Secretaries to provide pre-separation counseling to members of the Armed Forces whose discharge or release from active duty is anticipated as of a specific date. The counseling must include discussions of a number of topics, including educational benefits, relocation assistance services, post-separation medical and dental coverage, career counseling, financial planning, employment and re-employment rights, and veterans' benefits. The counseling may begin as far out as 24 months before retirement and 12 months before separation, but generally must begin no later than 90 days prior to the date of discharge or release. This time frame can be difficult to meet for reserve component members serving on operational deployments (for example, in Iraq and Afghanistan), as it is often not feasible to provide counseling services while they are performing operational duties, and they are typically released from active duty within a few weeks of return to the United States. The Department of Defense requested an amendment to 10 U.S.C. 1142 "[i]n order to bring the reserve components into compliance with the statute."

Discussion: The House and Senate provisions are aimed at adapting the pre-separation counseling requirement to the reserve deployment cycle. The final bill adopted the Senate language, which means that pre-separation counseling will be conducted for members of the National Guard and Reserve serving on active duty for a period of more than 180 days, but the counseling may occur less than 90 days prior to the date of separation.

CRS Point of Contact: [author name scrubbed], x[phone number scrubbed].

Chief of the National Guard Bureau a Member of the Joint Chiefs of Staff

Background: The Joint Chiefs of Staff is made up of a Chairman, a Vice-Chairman, the Chief of Staff of the Army, the Chief of Naval Operations, the Chief of Staff of the Air Force, and the Commandant of the Marine Corps. The Chairman is "the principal military adviser to the President, the National Security Council, the Homeland Security Council, and the Secretary of Defense." The other members of the JCS "are military advisers to the President, the National Security Council, the Homeland Security Council, and the Secretary of Defense" but normally provide their advice through the Chairman.

At present, the Army National Guard and the Air National Guard are represented on the Joint Chiefs of Staff (JCS) by their service chiefs—the Chief of Staff of the Army and the Chief of Staff of the Air Force, respectively—in the same way that the Army Reserve and Air Force Reserve are represented. Some have argued that this representation is inadequate, particularly when it comes to issues related to the use of the National Guard in a non-federalized status for domestic operations (for example, responding to disasters), and note that the National Guard has often been excluded from participating in key decision-making processes. They have advocated making the Chief of the National Guard Bureau (CNGB) a member of the JCS in order to ensure that the National Guard has a "seat at the table" when high-level policy options are debated and recommendations for the President and Secretary of Defense are formulated.

This issue was debated before the Commission on the National Guard and Reserve (CNGR) in 2006-2007, which recommended against such a change "on the grounds that the duties of the members of the Joint Chiefs of Staff are greater than those of the Chief of the National Guard Bureau." The Commission report further noted that making the CNGB a member of the JCS:

would run counter to intra- and inter-service integration and would reverse progress toward jointness and interoperability: making the Chief of the National Guard Bureau a member of the Joint Chiefs of Staff would be fundamentally inconsistent with the status of the Army and Air National Guard as reserve components of the Army and Air Force. Finally, the Commission concludes that this proposal would be counter to the carefully crafted organizational and advisory principles established in the Goldwater-Nichols legislation.

Shortly after the Commission report was published, Congress made a number of changes related to the National Guard Bureau and the CNGB. Although Congress declined to make the CNGB a member of the JCS at that time, it did elevate the grade of the position from lieutenant general (three-star general) to general (four-star general) and added new responsibilities to the position. Congress also specified that—in addition to the Chief of the National Guard Bureau's existing duties as principal advisor to the Secretaries and Chiefs of Staff of the Army and Air Force on National Guard matters—the Chief was also "a principal adviser to the Secretary of Defense, through the Chairman of the Joint Chiefs of Staff, on matters involving non-federalized National Guard forces and on other matters as determined by the Secretary of Defense."

On November 10, 2011, the Senate Armed Services Committee received testimony from the DOD General Counsel, the six current members of the Joint Chiefs of Staff, and the Chief of the National Guard Bureau on whether the Chief should be made a member of the JCS. The current members of the Joint Chiefs of Staff and the DOD General Counsel were opposed to making this change, while the Chief of the National Guard Bureau, General Craig McKinley, favored it. In his testimony, General McKinley argued that "only full Joint Chiefs of Staff membership for the Chief of the National Guard Bureau will ensure that the responsibilities and capabilities of the non-Federalized National Guard are considered in a planned and deliberate manner that is not based upon ad hoc or personal relationships but is, instead, firmly rooted in the law and the National strategy."

Discussion: Both the House and Senate bill would make the CNGB a member of the JCS. The House bill would make other changes as well. It would formally assign the CNGB with responsibility for being an advocate and liaison for the National Guards of the states and territories, informing them of all actions that could affect their federal or state mission, consulting with governors and adjutant generals before changes in force structure or equipment levels are made, and ensuring that the National Guard has the resources to perform both its war fighting and domestic response missions. Section 512 of the final bill designates the Chief of the National Guard Bureau as a member of the Joint Chiefs of Staff and specifies that "[a]s a member of the Joint Chiefs of Staff, the Chief of the National Guard Bureau has the specific responsibility of addressing matters involving non-Federalized National Guard forces in support of homeland defense and civil support missions."

Reference(s): Testimony before the Senate Armed Services Committee by Jeh Johnson, General Martin Dempsey, Admiral James Winnefield, General Ray Odierno, Admiral Jonathan Greenert, General James Amos, General Norton Schwartz, and General Craig McKinley, available at http://armed-services.senate.gov/Transcripts/2011/11%20November/11-73%20-%2011-10-11.pdf

Testimony before the Commission on the National Guard and Reserve by General Steven Blum, Dr. David Chu, Major General Frank Vavala, and General Peter Pace, available at http://www.cngr.gov/ .

Second Report of the Commission on the National Guard and Reserves: 75-76, http://www.cngr.gov/pdf/CNGR%20Second%20Report%20to%20Congress%20.pdf .

CRS Point of Contact: [author name scrubbed], x[phone number scrubbed].

*Cold War Victory Medal

Background: Congress authorized the Cold War Recognition Certificate years ago as part of the FY1998 National Defense Authorization Act (section 1084). Its was created to recognize the contributions and sacrifices of our armed forces and government civilians whose service contributed to victory in the Cold War. Members of the armed forces and federal government civilian employees who served the United States during the Cold War period, from September 2, 1945, to December 26, 1991, are eligible.

Discussion: A number of veterans' organization have supported efforts to create this medal in recognition of the veterans' role in the Cold War.

CRS Point of Contact: [author name scrubbed], x[phone number scrubbed].

Policy on Military Recruitment and Enlistment of Graduates of Secondary Schools

Background: Prior to 1987, the Services had differing policies with regard to how they treated secondary educational credentials in the recruiting process. Following empirical analysis, three tiers were created that corresponded with the likelihood that a recruit would successfully complete his/her first term. Those most likely to finish their first term are in tier one and include recruits with a traditional high school diploma and/or at least one year of college. Those with alternative diplomas, such as the GED, Adult Education diplomas, Home Study certificates, Correspondence School Graduates, for example, are in tier two. Those with no credentials (e.g., high school dropouts), or with credentials that do not satisfy falling into the first two tiers were given the lowest priority. Although this approach appears to be working, it has been over 20 years since the data have been reviewed. During that time, other forms of alternative education have emerged, including on-line programs.

Discussion: The House is concerned that since DOD developed its policy on secondary education, other alternative means of obtaining a diploma have emerged such as on-line educational programs (i.e., non-"brick and mortar" programs). DOD originally created this policy based on attrition data. This approach seems to suggest making the changes and then studying the data.

Reference(s): CRS Report 88-474 F, Military Recruiting: Controversy over the Use of Educational Credentials , by [author name scrubbed] (out of print; available upon request).

CRS Point of Contact: [author name scrubbed], x[phone number scrubbed].

Additional Condition on Repeal of Don't Ask, Don't Tell Policy

Background: P.L. 111-321 called for the repeal of Title 10 U.S.C., Section 654, which served as the basis for the 1993 policy banning open homosexuality in the military, colloquially known as Don't Ask, Don't Tell or DADT. Before the law and policy were repealed, a number of steps were taken, including (1) certification by the President, Secretary of Defense and Chairman of the Joint Chiefs of Staff that the repeal was consistent with military readiness, military effectiveness, unit cohesion and recruiting; (2) certification that DOD prepared the necessary policies and regulations for implementing the repeal; and (3) a subsequent 60-day waiting period before repeal would occur. Until these steps are satisfied, the law prohibiting open homosexuality in the military remains in effect. On September 20, 2011, Section 654 was repealed.

Discussion: During the process of considering legislation to repeal Don't Ask, Don't Tell, certain amendments, including the language in sec 533, were procedurally blocked. As structured, the repeal required only the certification from those who had previously stated support for repeal of DADT in the military. Although other members of the Joint Chiefs of Staff had stated they could carry out the repeal, certain members of the Joint Chiefs of Staff expressed reservations regarding the repeal. Given that the repeal has already occurred, it is not clear what effect enacting this language would have had.

Reference(s): CRS Report R40782, "Don't Ask, Don't Tell": Military Policy and the Law on Same-Sex Behavior , by [author name scrubbed], and CRS Report R42003, The Repeal of "Don't Ask, Don't Tell": Issues for Congress , by [author name scrubbed].

CRS Point of Contact: [author name scrubbed], x[phone number scrubbed].

Reform of Offenses Relating to Rape, Sexual Assault, Other Sexual Misconduct, and Sodomy under the Uniform Code of Military Justice

Background Concerns over laws regarding rape and sexual misconduct, as well as the repeal of the Don't Ask Don't Tell policy led to a review of the Uniform Code of Military Justice. The Joint Service Committee of Military Justice recommended numerous changes to the Uniform Code of Military Justice concerning rape and sexual assault. These changes were submitted to the House and Senate Armed Services Committees for consideration. Included in these recommendations was language that would repeal the prohibition on sodomy.

Discussion: In addition to reorganizing and modifying existing language pertaining to rape and sexual assault, including rape and sexual assault of children, this section creates language regarding non-consensual sexual misconduct (indecent viewing, visual recording or broadcasting). These changes align the language in Article 120 with definitions in other Articles of the UCMJ ('rape by unlawful force'), clarifies sexual assault ('removing the focus from the degree of incapacity of the victim and refocuses on the accused's actions'), and simplifies existing language with regard to the rape of children, according to the Joint Service Committee. Despite these and previous changes, including changes in prosecution and victim advocacy, problems remain. This language removes sodomy as a chargeable offense. Although the removal of sodomy has been justified based on certain court decisions striking down sodomy laws ( Lawrence v. Texas , for example), some have noted that the Comprehensive Review Working Group recommended that it be removed as part of the effort to repeal the Don't Ask, Don't Tell policy.

Reference(s): CRS Report R40782, "Don't Ask, Don't Tell": Military Policy and the Law on Same-Sex Behavior , by [author name scrubbed], and CRS Report R42003, The Repeal of "Don't Ask, Don't Tell": Issues for Congress , by [author name scrubbed].

CRS Point of Contact: [author name scrubbed], x[phone number scrubbed].

Military Regulations Regarding Marriage

Background: In 1996, the Defense of Marriage Act (DOMA) was enacted ( P.L. 104-199 ). Under this law, the federal government does not recognize same-sex marriages, the law allows states to refuse to recognize such marriages, and defines marriage for federal benefit purposes, as the union of one man and one woman. A few states have recognized same-sex marriages. The Attorney General, Eric Holder, announced in a letter to Speaker of the House, John A. Boehner, that the definition of marriage as set forth in DOMA was "unconstitutional." Under Title 10, U.S.C., for example, certain military benefits, such as military health care, describe who are eligible beneficiaries, including "Spouse," "Former Spouse," "Widow," and "Widower." Following the repeal of DADT, a service member who marries a same-sex partner in a state that recognizes such, would be prevented from providing the spouse with military health care and certain other benefits because of restrictions under DOMA.

Discussion: The matter of DOMA is currently being contested in the courts. The language above recommits the House to the definition of marriage under DOMA. The Senate language allows military chaplains to opt out of performing any marriage as a matter of conscience or moral principle.

Reference(s): CRS Report RL31994, Same-Sex Marriages: Legal Issues , by [author name scrubbed].

CRS Point of Contact: [author name scrubbed], x[phone number scrubbed].

Use of Military Installations as Sites for Marriage Ceremonies and Participation of Chaplains and Other Military and Civilian Personnel in Their Official Capacity

Background: See the previous issue for a discussion of the 1996 Defense of Marriage Act ( P.L. 104-199 ). According to reports, in April 2011, Navy Chief of Chaplains, Rear Adm. M.L. Tidd, announced on April 13, 2011, a change in policy allowing same-sex marriages to be performed in Navy Chapels. Following criticism by certain Members of Congress, on May 10, 2011, the policy change was "suspended."

Discussion: Rear Adm. Tidd announced the change in guidance was suspended "until further notice pending additional legal and policy review and inter-Departmental coordination." As such, it appears that the services are or will begin this process. The House language would recommit DOD to the definition of marriage under DOMA.

Reference(s): CRS Report RL31994, Same-Sex Marriages: Legal Issues , by [author name scrubbed].

CRS Point of Contact: [author name scrubbed], x[phone number scrubbed].

*Protection of Child Custody Arrangements for Parents Who Are Members of the Armed Forces

Background: Military members who are single parents are subjected to the same assignment and deployment requirements as are other service members. Deployments to areas that do not allow dependents (such as aboard ships or in hostile fire zones) require the service member to have contingency plans to provide for their dependents. (See U.S. Department of Defense, Instruction No. 1342.19, "Family Care Plans," May 7, 2010.) Concerns have been raised that the possibility or actuality of military deployments may encourage courts to deny custodial rights of a service member to a former spouse or others. Also, concerns have been raised that custody changes may occur while the military member is deployed and unable to attend court proceedings.

Discussion: This language would allow courts to temporarily assign custody of a child for the purposes of deployment without allowing the (possibility of) deployment to be prejudicially considered against the service member in a custody hearing.

CRS Point of Contact: [author name scrubbed], x[phone number scrubbed].

Improved Sexual Assault Prevention and Response in the Armed Forces

Background: Issues of sexual assault in the Armed Forces have been of concern to Congress for decades. Over the years, Congress has, on numerous occasions, addressed the issue via studies, hearings and legislation. Title V (subtitle I) of H.R. 1540 contains seven Sections concerning sexual assault. (Note: Section numbers and order do not necessarily correspond across reported bills.)

Discussion: These sections elevate the handling of sexual assault case management, set standards for record keeping, allow victims to seek transfers or other actions to reduce the possibility of retaliation, and establish training requirements. The House report language notes, in two sections, that $45 million is to be set aside for training, although that language does not exist in the legislation. It is also important to note that those serving as Sexual Assault Response Coordinators and Sexual Assault Victims Advocates must either be members of the military or federal employees, thereby preventing private, self-assigned, advocacy groups from financially exploiting the issue.

CRS Point of Contact: [author name scrubbed], x[phone number scrubbed].

Wounded Warrior Careers Program

Background: Section 594 would require the Secretary of Defense to carry out a career-development services program for severely wounded warriors of the Armed Forces, and their spouses if appropriate, during fiscal years 2012 through 2016. The provision directs the Secretary to obligate $1 million for the program using merit-based or competitive procedures from funds appropriated for Defense-wide Operation and Maintenance Administrative and Service-wide Activities. It also requires DOD to submit a cost-benefit analysis of the program to Congress within one year following enactment of the bill.

The program would be required to include at a minimum the following services:

1. Exploring career options; 2. Obtaining education, skill, aptitude, and interest assessments; 3. Developing veteran-centered career plans; 4. Preparing resumes and education/training applications; 5. Acquiring additional education and training, including internships and mentorship programs; 6. Engaging with prospective employers and educators when appropriate; 7. Entering into various kinds of occupations (whether full-time, part-time, paid, or volunteer, or self-employment as entrepreneurs or otherwise); 8. Advancing in jobs and careers after initial employment; and 9. Identifying and resolving obstacles through coordination with the military departments, other departments and agencies of the federal government.

Discussion: The program would provide a range of services including testing and assistance in developing career plans, preparing resumes, and improving skills. Those services would be provided at as many as 20 locations in geographic areas with the largest concentrations of wounded former and current service members. Based on information from DOD's Office of Wounded Warrior Care and Transition Policy and the National Organization on Disability, the Congressional Budget Office (CBO) estimates that implementing this provision would cost $60 million over the 2012-2016 period, assuming that the program opens and maintains 20 locations in the United States for most of that period. Congress has stated its interest in monitoring the outcome of DOD's Education and Employment Initiative.

CRS Point of Contact: Don Jansen, x[phone number scrubbed].

Comptroller General Study of Military Necessity of Selective Service System (SSS) and Alternatives

Background: The United States ended the involuntary induction of men into the Armed Forces ("the draft") in 1973. The requirement that men register for the draft upon reaching age 18 was suspended in 1975, but reinstated in 1980. Current law requires that

The Selective Service System shall be maintained as an active standby organization, with (1) a complete registration and classification structure capable of immediate operation in the event of a national emergency, and (2) personnel adequate to reinstitute immediately the full operation of the System, including military reservists who are trained to operate such System and who can be ordered to active duty for such purpose in the event of a national emergency (including a structure for registration and classification of persons qualified for practice or employment in a health care occupation essential to the maintenance of the Armed Forces).

SSS is an independent agency with a budget of about $24 million per year. It has a staff of approximately 130 civilian employees, 175 National Guard and Reserve officers, and 11,000 trained volunteers who would staff local boards in the event the draft were reinstated.

Since the U.S. Armed Forces became "all volunteer" in 1973, some have questioned the need to maintain the Selective Service System. Opponents argue that a return to conscription is highly unlikely and, as such, money spent on SSS is wasteful. They also argue that even if conscription did need to be reinstated at some time in the future, a new agency could be established and conscription begun in a fairly short period of time. Supporters of SSS argue that the cost of the agency is very small, and that the ability to restart conscription rapidly and equitably is an important strategic hedge. They dispute the notion that an equitable conscription system could be rapidly put into place if events required it in the future.

Discussion: The House provision would require the Government Accountability Office (GAO) to conduct a study on the Selective Service System to determine the fiscal and national security implications of several alternatives to the current system. The Senate bill contained no similar provision. The final bill largely adopts the House provision, while making a few changes in the description of the report—the report is to assess the necessity of the SSS, rather than its criticality; the definition of deep standby mode is changed to include personnel sufficient to conduct "necessary functions"—and extending the deadline for its completion from March 31 to May 1, 2012.

CRS Point of Contact: [author name scrubbed], x[phone number scrubbed].

Playing of "Taps" at Military Funerals, Memorial Services, and Wreath Laying Ceremonies

Background: Military funeral honors, memorial services and wreath laying ceremonies include the playing of a bugle call commonly known as "Taps." In cases where a trained bugler is not available, DOD approved the use of a ceremonial bugle that contains a device that plays a recorded version of Taps. Some have complained that the use of such a recorded device is unsuitable and inauthentic.

Discussion: This language only expressed the sense of the House with regard to the playing of Taps and does not create a requirement for the performance of Taps at these events.

Reference(s): CRS Report RS21545, Military Funeral Honors and Military Cemeteries: Frequently Asked Questions , by [author name scrubbed].

CRS Point of Contact: [author name scrubbed], x[phone number scrubbed].

*Military Pay Raise

Background: Increasing concern with the overall cost of military personnel, combined with ongoing military operations in Afghanistan, and, at the time, Iraq, has continued to focus interest on the military pay raise. Title 37 U.S.C. Section 1009 provides a permanent formula for an automatic annual military pay raise that indexes the raise to the annual increase in the Employment Cost Index (ECI). The FY2012 President's Budget request for a 1.6% military pay raise was consistent with this formula. However, since the attacks on the World Trade Center on September 11, 2001, (aka "9/11"), Congress has approved the pay raise as the ECI increase plus 0.5%; this occurred in fiscal years 2004, 2005, 2006, 2008, 2009, and 2010. The pay raise was equal to the ECI in 2007 and 2011.

Discussion: A military pay raise larger or smaller than the permanent formula is not uncommon. In addition to "across-the-board" pay raises for all military personnel, mid-year and "targeted" pay raises (targeted at specific grades and longevity) have also been authorized over the past several years.

The Congressional Budget Office (CBO) estimates that the total cost of a 1.6% military pay raise would be $1.2 billion in 2012.

The Senate and the Conference did not address the issue of the military pay raise. As a result, the automatic provisions of 37 U.S.C. will result in a 1.6% (equal to the Employment Cost Index) across-the board pay raise effective January 1, 2012.

Reference(s): Previously discussed in CRS Report R41316, FY2011 National Defense Authorization Act: Selected Military Personnel Policy Issues , coordinated by [author name scrubbed], and CRS Report R40711, FY2010 National Defense Authorization Act: Selected Military Personnel Policy Issues , coordinated by [author name scrubbed]. See also CRS Report RL33446, Military Pay and Benefits: Key Questions and Answers , by [author name scrubbed].

CRS Point of Contact: Charles Henning, x[phone number scrubbed].

Death Gratuity and for Reserves who Die during Authorized Stay at their Residence During Inactive Duty Training.

Background: Samson Luke, a captain in the Arkansas National Guard, went home for the evening after a day of inactive duty training at Fort Chaffee, fully expecting to return the next morning. That evening, at his off-base home, Luke died, reportedly of heart problems. Since he was not on-base at the time, although he was eligible to spend the night on-base or at a nearby hotel, his surviving wife was not eligible to receive the $100,000 Death Gratuity benefit.

Discussion: When is a Reservist on duty? Under current law, when such a person is serving on active duty (such as during a call-up), serving on inactive duty training (such as the routine one weekend a month duty when members of the National Guard train), traveling to and from such training, or if away from home as the result of such training. Because Captain Luke returned home for the evening, he was not considered to be in a training capacity and therefore ineligible for certain death benefits. The Senate provision would have extended the law to cover individuals in such situation.

CRS Point of Contact: [author name scrubbed], x[phone number scrubbed].

Special Survivor Indemnity Allowance (SSIA) for Those Affected by the Survivor Benefit Plan Annuity Offset for Dependency and Indemnity Compensation/*Repeal of the Offset

Background: The Survivor Benefit Plan (SBP) provides an annuity to an eligible spouse of a deceased military member/retiree. Dependency and Indemnity Compensation provides compensation to a surviving spouse of a member/retiree who suffered a disability that is service connected. A surviving spouse who is eligible for both will have his or her SBP reduced or offset on a dollar-for-dollar basis by Dependency and Indemnity Compensation (DIC). For certain beneficiaries affected by the offset, Section 644 of the National Defense Authorization Act for Fiscal Year 2008, created a new Special Survivor Indemnity Allowance (SSIA) to be paid to survivors of covered service members. This monthly allowance, effective October 1, 2008, was $50, and is scheduled to increase annually by $10 through FY2013. The benefit was scheduled to end in 2016. However, during the 111 th Congress, SSIA was made more generous in that for the years 2014 through 2017, the amount would increase from $150, to $200, $275, and finally, $310, after which the benefit will terminate on October 1, 2017 (see the CRS report below). The amount received under SSIA may not be greater than the amount of the SBP-DIC offset. (SSIA was extended to survivors of active duty members later in October, 2008.) Critics have noted that with the earlier repeal of the Social Security offset, survivors could be receiving three government subsidized benefits based on the same period of service; a form of "triple dipping."

Discussion: Efforts in previous years to end the SBP-DIC offset have not been successful. In the current budget situation, ending the offset appears unlikely. Advocates for these survivors view SSIA as a better option to provide these beneficiaries more money. Critics note that providing more money than was contracted for under the original SBP was unjustified, particularly under these budgetary conditions. The Senate approach was to eliminate the offset entirely.

Reference(s): CRS Report RL31664, The Military Survivor Benefit Plan: A Description of Its Provisions , by [author name scrubbed].

CRS Point of Contact: [author name scrubbed], x[phone number scrubbed].

*TRICARE Prime Annual Enrollment Fee Increase for Military Retirees

Background : TRICARE is a health care program serving uniformed service members, retirees, their dependents and survivors. Section 701 of H.R. 1540 would limit future increases in TRICARE Prime enrollment fees for military retirees and their dependents to the annual cost-of-living adjustment (COLA) for military retirement annuities beginning in fiscal year 2013. Under current law, the Secretary of Defense may adjust TRICARE Prime annual enrollment fees effective October 1, 2011. The House Armed Services Committee (HASC) Personnel Subcommittee marked up the original bill to extend a prohibition on TRICARE Prime annual enrollment fee increases for one year. Such provisions have been included regularly in annual national defense authorizations. However, this provision was removed this year in the HASC chairman's mark. By not extending the existing prohibition on fee increases, the bill would allow the Obama Administration to implement its proposal to increase the annual enrollment fee by $30 per year for individual and $60 per year for family enrollments. The Administration also has proposed to index future increases in those enrollment fees to the per capita growth rate in national health expenditures as published by the Centers for Medicare and Medicaid Services; that growth rate is currently projected to be about 5 percent to 6 percent per year over the next decade. In contrast, the Congressional Budget Office (CBO) estimates that under Section 701, indexing annual enrollment fee increases to the annual increases in the military retirement COLA (which are based on the consumer price index for urban wage earners and clerical workers) would limit the fee increases to an average of about 2 percent per year over that same period.

Discussion: Currently, about 700,000 military retiree households are enrolled in TRICARE Prime, covering about 1.6 million beneficiaries. If the Administration proposal is implemented as permitted under the House-passed version of H.R. 1540 , the TRICARE Prime enrollment fees in 2012 will be increased to $260 (from $230) for those who enroll as individuals and $520 (from $460) for those who enroll their families. CBO estimates that limiting future growth in the enrollment fees to the military retirement COLA would cost $186 million over the 2013–2016 period.

Reference(s): Previously discussed in CRS Report RL34590, FY2009 National Defense Authorization Act: Selected Military Personnel Policy Issues , coordinated by [author name scrubbed]; CRS Report R40711, FY2010 National Defense Authorization Act: Selected Military Personnel Policy Issues , coordinated by [author name scrubbed]; and CRS Report RS22402, Increases in Tricare Costs: Background and Options for Congress , by [author name scrubbed].

CRS Point of Contact: Don Jansen, x[phone number scrubbed].

Behavioral Health Support for Reservists

Background: Section 703 of H.R. 1540 would amend Title 10, U.S.C., to require that the Secretary of Defense provide to any member of the reserve components performing inactive-duty training during scheduled unit training assemblies free access to mental health assessments with a licensed mental health professional who would be available for referrals during duty hours on the premises of the principal duty location of the member's unit. Section 703 would further amend Title 10 to provide that each member of a reserve component of the Armed Forces while participating in annual training or individual duty training shall have access to behavioral health support programs. The behavioral health support programs would include one or any combination of the following: programs providing access to licensed mental health providers in armories, reserve centers, or other places for scheduled unit training assemblies; and programs providing training on suicide prevention and post-suicide response.

Discussion: CBO estimates that implementing Section 703 would cost $118 million over the 2012-2016 period. CBO based its estimate of this provision's costs on pilot programs providing such care to the California and Montana National Guards. For those programs, guard units contracted with behavioral health professionals to be available during drill weekends. Based on information from DOD, CBO estimates that the Montana and California programs combined cost about $1 million per year and covered about 25,000 reserve members. After scaling those costs upward to cover the roughly 700,000 drilling members of the selected reserve and adjusting for inflation, CBO estimates this provision would require appropriations of almost $30 million per year when fully implemented. Costs would be lower in the first year because of the time needed to establish regulations and set up the required programs.

CRS Point of Contact: Don Jansen, x[phone number scrubbed].

Uniformed Services Family Health Plan Enrollment

Background: Section 704 of H.R. 1540 would amend Title 10, U.S.C., to close enrollment in the Uniformed Services Family Health Plan (USFHP) to Medicare-eligible beneficiaries of the military health system. Those currently enrolled in USFHP would be allowed to remain in the program for as long as they wish. However, anyone who enrolled after the end of fiscal year 2012 would be forced to leave USFHP once they reach the age of 65. At that point, such individuals would move to the regular Medicare/TRICARE-for-Life benefit. These changes were included in the Administration's 2012 Budget.

Discussion: USFHP, a TRICARE option available to active duty dependents, retirees and retiree family members through not-for-profit health care systems in six areas of the United States, originated separately from the other TRICARE options. Six former, government-owned Public Health Service (PHS) hospitals were closed in the late 1970s and sold to non-profit health care entities; now owned by:

Johns Hopkins Medicine (MD) Christus Health (TX) Pacific Medical Centers (WA) Martin's Point Health Care (ME, NH, VT) Brighton Marine Health Center (MA, RI) Saint Vincent Catholic Medical Centers (NY)

These health systems now operate plans similar to TRICARE Prime for military beneficiaries that are collectively know as the "Uniformed Services Family Health Plan." Initially, these hospitals were legislatively "deemed" as equivalent to DOD military hospitals and DOD paid for beneficiary hospitalizations and outpatient visits. With the advent of TRICARE in 1994, DOD changed its payment model to a per member per month "capitated fee" and the USFHP were responsible for managing the care. All categories of beneficiaries who live in these geographic areas are eligible to enroll in the USFHP (both Medicare-eligible and non-Medicare). The law currently makes most Medicare-eligible retirees ineligible for TRICARE unless they enroll in and pay Medicare Part B premiums. Medicare-eligible retirees enrolled in USFHP, however, are not required to enroll in Medicare Part B. Because DOD believes that it pays a higher capitated rate than the equivalent Medicare capitated plan, it believes that the Government can reduce expenditures if future Medicare-eligible USFHP enrollees are required to enroll in Medicare Part B to retain TRICARE coverage under the TRICARE for Life plan. Medicare Part B premiums are currently $96.40 per month for individuals with incomes less than $85,000 per year. The Congressional Budget Office (CBO) cost estimate for this provision concurs and estimates that limiting enrollment in USFHP would result in a net savings to the federal government of about $76 million over the 2013-2021 period.

CRS Point of Contact: Don Jansen, x[phone number scrubbed].

*Unified Medical Command

Background: Section 711 of H.R. 1540 would amend Title 10, U.S.C., to require the President, with the advice and assistance of the Chairman of the Joint Chiefs of Staff, through the Secretary of Defense, to establish a unified command for medical. The principal function of the command would be to provide medical services to the Armed Forces and other health care beneficiaries of the Department of Defense. The Section would amend Title 10, to add a new Section 167b. The Section would require that all active military medical treatment facilities, training organizations, and research entities of the Armed Forces be assigned to the unified medical command, unless otherwise directed by the Secretary of Defense. The commander of the unified medical command would hold the grade of general or, in the case of an officer of the Navy, admiral while serving in that position, without vacating their permanent grade. The commander of the unified medical command would be appointed to that grade by the President, with the advice and consent of the Senate, for service in the position. The unified medical command would have the following subordinate commands:

1. A command that includes all fixed military medical treatment facilities, including elements of the Department of Defense that are combined, operated jointly, or otherwise operated in such a manner that a medical facility of the Department of Defense is operating in or with a medical facility of another department or agency of the United States. 2. A command that includes all medical training, education, and research and development activities that have previously been unified or combined, including organizations that have been designated as a Department of Defense executive agent. 3. A Defense Health Agency to which would be transferred the TRICARE Management Activity and all functions of the TRICARE Program.

The commander of the unified medical command would conduct all affairs of the command relating to medical operations activities including developing programs and doctrine; preparing and submitting to the Secretary of Defense program recommendations and budget proposals for the forces assigned to the unified medical command; exercising authority, direction, and control over the expenditure of funds for the Defense Health Program, forces assigned to the unified medical command and for military construction funds of the Defense Health Program; training assigned forces; conducting specialized courses of instruction for commissioned and noncommissioned officers; and ensuring the interoperability of equipment and forces.

Discussion: The current organizational structure of the military health system (MHS) has long been considered by many observers to present an opportunity to gain efficiencies and save costs by consolidating administrative, management, and clinical functions. Recent Government Accountability Office testimony summarized these views, stating that

The responsibilities and authorities for the MHS are distributed among several organizations within DOD with no central command authority or single entity accountable for minimizing costs and achieving efficiencies. Under the MHS's current command structure, the Office of the Assistant Secretary of Defense for Health Affairs, the Army, the Navy, and the Air Force each has its own headquarters and associated support functions.

DOD has taken limited actions to date to consolidate certain common administrative, management, and clinical functions within its MHS. To reduce duplication in its command structure and eliminate redundant processes that add to growing defense health care costs, DOD could take action to further assess alternatives for restructuring the governance structure of the military health system. In 2006, if DOD and the services had chosen to implement one of the reorganization alternatives studied by a DOD working group, a May 2006 report by the Center for Naval Analyses showed that DOD could have achieved significant savings. Our adjustment of those savings from 2005 into 2010 dollars indicates those savings could range from $281 million to $460 million annually, depending on the alternative chosen and the numbers of military, civilian, and contractor positions eliminated.

The Administration's Statement of Administration Policy on H.R. 1540 dated May 24, 2011, strongly objected to the provision, stating:

The Administration strongly objects to Section 711, which would require the President to create a new unified combatant command for medical operations. DOD will shortly complete a study on how to best deliver high-quality medical care to service members and their families in an effective and cost-efficient manner. Among the options this study will consider is a joint medical command similar to this provision; however, this Section presumes the outcome of the study and of decisions to be made by DOD leadership on this important subject.

The Senate amendment allows the process to move forward in a more measured pace.

Reference(s): Previously discussed in CRS Report RL34590, FY2009 National Defense Authorization Act: Selected Military Personnel Policy Issues , coordinated by [author name scrubbed].

CRS Point of Contact: Don Jansen, x[phone number scrubbed].