FY2017 National Defense Authorization Act: Selected Military Personnel Issues
Released: 2017-01-23T00:00:00

Introduction

Each year, the House and Senate armed services committees take up national defense authorization bills. The House of Representatives passed the National Defense Authorization Act for Fiscal Year 2017 ( H.R. 4909 ) on May 26, 2016. The Senate passed its NDAA bill ( S. 2943 ) on June 14, 2016. These bills contain numerous provisions that affect military personnel, retirees, and their family members. Provisions in one version are sometimes not included in the other, are treated differently by, or are identical in both versions. Following passage of these bills by the House and by the Senate, a conference committee was convened to resolve the differences between the respective chambers' versions of the bill. The House and Senate agreed to the conference report on December 2, and December 8, 2016, respectively. The President signed the final bill into law ( P.L. 114-328 ) on December 23, 2016.

This report is intended to highlight selected personnel-related issues that may generate high levels of congressional and constituent interest.

Related CRS products are identified in each section to provide more detailed background information and analysis of the issues. For each issue, a CRS analyst is identified and contact information is provided.

Some issues discussed in this report previously were addressed in the National Defense Authorization Act for Fiscal Year 2016 ( P.L. 114-92 ) and discussed in CRS Report R44120, FY2016 National Defense Authorization Act: Selected Military Personnel Issues , coordinated by [author name scrubbed], or other reports. Those issues that were considered previously are designated with an asterisk in the relevant section titles of this report.

*Active Duty End-Strengths

Background: The authorized active duty end-strengths for FY2001, enacted in the year prior to the September 11 terrorist attacks, were as follows: Army (480,000), Navy (372,642), Marine Corps (172,600), and Air Force (357,000). Over the next decade, in response to the demands of wars in Iraq and Afghanistan, Congress increased the authorized personnel strength of the Army and Marine Corps. However, in recent years Congress began reversing these increases in light of the withdrawal of U.S. forces from Iraq in 2011, the drawdown of U.S. forces in Afghanistan beginning in 2012, and budgetary constraints. End-strengths for the Air Force and Navy have been generally declining since 2001. Authorized end-strengths for FY2016 and FY2017 are in Figure 1 .

Discussion: In comparison to FY2016 authorized end-strengths, the Administration's FY2017 budget proposed lowering end-strengths for all services. The Senate bill approved end-strengths identical to the Administration's request. The House bill approved higher end-strengths than the Administration's request. The House-proposed increase was most noticeable for the Army (+5,000 compared to FY2016 authorized end-strength), although the Marine Corps and Air Force increased as well. The House provision reduced Navy end-strength, although this was still higher than the Administration request by 1,715. Section 402 of the House bill adjusted the minimum end-strengths required by 10 U.S.C. §619 to a level equal to the authorized end-strengths set in Section 401. The final bill sets the minimum end-strengths at a level equal to the authorized end-strengths for FY2017.

Reference(s): Previously discussed in CRS Report R44120, FY2016 National Defense Authorization Act: Selected Military Personnel Issues , coordinated by [author name scrubbed] and similar reports from earlier years.

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

*Selected Reserves End-Strength

Background: The overall authorized end-strength of the Selected Reserves has declined by about 6% over the past 15 years (874,664 in FY2001 versus 818,000 in FY2016). Much of this can be attributed to the reductions in Navy Reserve strength during this period. There were also modest shifts in strength for some other components of the Selected Reserve. The authorized end-strengths for the Selected Reserve in FY2016 and FY2017 are in Figure 2 .

Discussion: For FY2017, the Administration requested a reduction in authorized Selected Reserves end-strength for four of the seven reserve components and increases for two. The Senate bill proposed end-strengths identical to the Administration request. The end-strengths authorized in the House bill were identical to the Administration's request for all but the Army National Guard and Army Reserve. The House bill would have increased the Army National Guard's end-strength to 350,000 and the Army Reserve's end-strength to 205,000.

Reference(s): Previously discussed in CRS Report R44120, FY2016 National Defense Authorization Act: Selected Military Personnel Issues , coordinated by [author name scrubbed] and similar reports from earlier years.

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 long-standing congressional interest in recruiting and retaining high-quality personnel to serve in the all-volunteer military, have continued to focus interest on the military pay raise. Section 1009 of Title 37 United States Code provides a permanent formula for an automatic annual increase in basic pay that is indexed to the annual increase in the Employment Cost Index (ECI). The statutory formula stipulates that the increase in basic pay for 2017 will be 2.1% unless either (1) Congress passes a law to provide otherwise; or (2) the President specifies an alternative pay adjustment under subsection (e) of 37 U.S.C. §1009. Increases in basic pay are typically effective at the start of the calendar year, rather than the fiscal year.

Congress has not included a provision specifying an increase in basic pay for the past three years (2014-2016). For each of these years the President invoked the alternative pay adjustment authority of 37 U.S.C. §1009(e), setting the pay raise below the ECI in each case. The FY2017 President's Budget requested a 1.6% military pay raise, lower than the statutory formula of 2.1%.

Discussion: The House bill would have required that the statutory formula go into effect, resulting in a 2.1% pay raise for all servicemembers effective on January 1, 2017. The Senate bill would have waived the automatic adjustment to basic pay specified in 37 U.S.C. §1009 and provided an increase of 1.6%, effective January 1, 2017. The enacted bill waived the automatic adjustment and specified an increase of 2.1%, identical to the automatic adjustment, effective January 1, 2017.

Reference(s): For an explanation of the pay raise process and historical increases, see CRS In Focus IF10260, Defense Primer: Military Pay Raise , by [author name scrubbed]. Previously discussed in CRS Report R44120, FY2016 National Defense Authorization Act: Selected Military Personnel Issues , coordinated by [author name scrubbed], and similar reports from earlier years.

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

*Housing Allowances

Background: Under current law, all servicemembers are entitled to either government-provided housing or a housing allowance. For those living in the United States, the housing allowance is known as Basic Allowance for Housing (BAH). BAH is based on three factors: paygrade (rank), geographic location, and whether the servicemember has dependents. Paygrade and dependency status are used to determine the type of accommodation—or "housing profile"—appropriate for the servicemember (for example, one-bedroom apartment, two-bedroom townhouse, or three-bedroom single family home). Geographic location is used to determine the average costs associated with each of these housing profiles. BAH rates are higher in some areas than others, but servicemembers of similar paygrade and dependent status should be able to pay for roughly comparable housing regardless of their duty location.

Discussion: The Senate bill would have altered the way in which BAH was calculated in several ways. For covered servicemembers, BAH would be based only on geographic location and paygrade of recipient, eliminating dependents as a factor in the rate determination. The Senate bill would have based BAH on actual servicemember housing expenditures up to a maximum amount for a given location/paygrade, rather than the current specified rate. The provision would also have changed how BAH was paid to servicemembers who share the same living quarters, reducing it in relationship to the number of people sharing the quarters. That is, if two or more servicemembers were to occupy the same housing, the amount of the allowance could not exceed "the amount of the allowance otherwise payable to such member ... divided by ... the total number of members occupying such housing." The new formula would have applied to certain members of the Armed Forces beginning on January 1, 2018. Members covered by the new provision would include servicemembers who first become entitled to basic pay on or after January 1, 2018, certain reserve and retired personnel ordered to active duty, and a servicemember entitled to the existing BAH on December 31, 2017, "within a particular housing or overseas area" and who "after that date, loses uninterrupted eligibility to receive a basic allowance for housing within an area of the United States or an area outside the United States, as applicable." The Senate provision also would have required the Secretary of Defense to submit the proposed regulations to implement this provision to the congressional defense committees by March 31, 2017. The House bill did not contain a similar provision.

The enacted bill requires DOD to provide the House and Senate Armed Services Committee with a report—by March 1, 2017—on transitioning from the current pay structure to a new pay structure which would provide a "single-salary pay system" that is adequate to effectively recruit and retain a high-quality All-Volunteer Force, but which eliminates Basic Allowance for Housing and Basic Allowance for Subsistence. The conference report contained the following language to describe the provision:

The conferees note that the BAH, as an entitlement, and the perception of BAH among servicemembers, has evolved over the past 20 years. BAH, and the iterations of the benefit that came before, was intended to provide a housing benefit for servicemembers to offset the cost of housing in high cost housing areas where adequate government-provided quarters was not available and in recognition of the transient nature of military service and the impact it has on military members and their families. Indeed, that the housing allowance was and is intended as primarily a housing benefit is demonstrated by its tax-free nature, the differentiation based on dependency status, and the fact that junior enlisted personnel required to reside in barracks or on a ship are ineligible to receive BAH. Accordingly, the conferees direct the Secretary of Defense to begin planning for a transition to a salary system that better aligns the payment of the allowance with the Department's use of the housing allowance as compensation rather than its intended purpose as an allowance.

Reference: CRS Report RL33446, Military Pay: Key Questions and Answers , by [author name scrubbed] and [author name scrubbed].

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

*Military Retirement System

Background: The military retirement system is currently a funded, noncontributory, defined benefit system that provides a monthly annuity to servicemembers after 20 years of qualifying service. In the National Defense Authorization Act for FY2016 ( P.L. 114-92 ) a number of changes were enacted to modernize the reduce the retirement system by reducing the retired pay multiplier, adding 401k-type defined contribution element, allowing for a partial lump-sum payment of retired pay, and adding continuation pay as a retention incentive. These changes will go into effect on January 1, 2018, for servicemembers entering on or after that date and those with 12 years or less of service on that date who are eligible and elect to enroll in the new system.

Discussion : The military retirement system has historically been viewed as a significant incentive in retaining a career military force and any changes are closely followed by active duty military and veterans' groups. Reductions in the retired pay multiplier from 2.5% to 2.0% for those joining on or after January 1, 2018, under the new system created last year have raised concerns about the services' ability to retain certain occupational specialties at the mid-career point. The FY2016 NDAA ( P.L. 114-92 ) authorized DOD to provide continuation pay as a retention incentive at the completion of 12 years of service in return for an additional 4-year commitment to service. In conference, the House and Senate agreed on a provision (Section 633) that would authorize DOD the flexibility to pay continuation pay at any point between 8 to 12 years of service in return for an agreement for continued service of not less than 3 additional years. This provision will provide DOD more latitude in managing the personnel system through targeted continuation pay based on retention trends for specific military occupational specialties.

Section 633 of the enacted bill also adopts an amended House provision that amends 37 U.S.C. §356 procedures for calculating continuation pay minimums for active and reserve component members. It will allow members of a reserve component performing active Guard or Reserve duty when they accept continuation pay to receive the same minimum pay as active duty members. The calculation of maximum pay for active and reserve component members remains the same.

Section 635 of the Senate bill would have expressed the sense of Congress that default contributions to the TSP should be to a Roth plan. A Roth plan is taxable at the time of contribution but qualified distributions are not included in taxable income, allowing earnings to accrue tax-free. As such, a Roth plan is typically a better savings vehicle for young, low-income individuals who typically have a lower tax burden (e.g., junior officers and enlisted servicemembers) than they would expect to have in retirement. This provision was not adopted.

Finally, Section 631 of the Senate bill was adopted and amends 10 U.S.C. §1409 to allow cadets, midshipmen, and reservists who are in inactive duty status prior to January 1, 2018, a 30-day election period for the new retirement system following commissioning or transfer to active duty or active status.

Reference ( s ) : CRS Report RL34751, Military Retirement: Background and Recent Developments , by [author name scrubbed]. CRS Report RL34397, Traditional and Roth Individual Retirement Accounts (IRAs): A Primer , by [author name scrubbed]. Previously discussed in CRS Report R44120, FY2016 National Defense Authorization Act: Selected Military Personnel Issues , coordinated by [author name scrubbed] and similar reports from earlier years.

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

Benefits to Former Spouses of Military Servicemembers

Background: Military servicemembers are eligible to receive retired pay after 20 qualifying years of service. In 1982, Congress enacted the Uniformed Services Former Spouses' Protection Act (USFSPA) which allowed state courts to treat disposable military retired pay as divisible property in divorce cases. In addition, the law allows certain former spouses to remain eligible to receive certain military benefits or privileges. The USFSPA has since been modified on a number of occasions.

Discussion : The amount of retired pay due to a servicemember is calculated based on the member's pay grade and years of service at the time of retirement. Currently up to 50% of a servicemember's disposable military retired pay may be divisible by the court in a single divorce case. Both the House and Senate proposed similar provisions that would change the definition of disposable retired pay to use the pay grade and years of service at time of a divorce court order rather than at the time of retirement. The enacted bill (§641) authorizes this change in the definition of disposable retired pay and also includes cost-of-living adjustments in the determination of spousal payments. This provision will not affect any divorce settlements that occurred prior to the date of enactment.

Reference(s): CRS Report R40589, Concurrent Receipt: Background and Issues for Congress , by [author name scrubbed], CRS Report RL34751, Military Retirement: Background and Recent Developments , by [author name scrubbed], and CRS Report RL31663, Military Benefits for Former Spouses: Legislation and Policy Issues , by [author name scrubbed].

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

*Survivor Benefits

Background : A military retiree may have a portion of his or her monthly retired pay withheld in order to provide, after his or her death, a monthly survivor benefit to a surviving spouse or other eligible recipients. This is known as the Survivor Benefit Plan (SBP). When a servicemember dies, their survivor's payment through the SBP is usually 55% of the retired basic pay that the member would otherwise have been eligible to receive. Previously, for those servicemembers who died while on active duty, the base amount was calculated at 75% of their basic pay. For reservists who died during inactive-duty training (IADT), the base amount reflects their years of service, which causes the SBP payment to be less than if the member died on active duty. This disparate treatment was addressed in the FY2017 NDAA.

Surviving spouses who receive both an annuity from DOD as a beneficiary of the SBP and from the Department of Veterans Affairs' (VA) Dependency and Indemnity Compensation (DIC) have their SBP payments reduced by the amount of DIC. Special Survivor Indemnity Allowance (SSIA) is a payment made to such surviving spouses to offset that reduction. The SSIA was previously set to expire at the end of FY2017.

D iscussion: Sections 642, 643, 646, and 648 of the enacted bill included some of the provisions in the House-passed H.R. 4909 and Senate-passed S. 2943 .

Section 642 of the enacted bill amends Section 1451(c)(1)(A) of Title 10, United States Code, to eliminate differential treatment under the SBP for reserve component and active component members who die from an injury or illness incurred or aggravated in the line of duty during inactive-duty training (IADT).

Section 643 amends Section 1452 of Title 10, United States Code, to allow DOD to withhold monthly SBP payments from Combat Related Special Compensation (CRSC) when retired pay is insufficient to cover the premiums. CRSC is considered "special compensation," not retired pay, and thus previously was not eligible to be used to cover SBP premiums.

Section 646 amends Section 1450(m) of Title 10, United States Code, to extend authority to pay SSIA until May 31, 2018. It also requires the Secretary of Defense to submit a report on those individuals affected by the offset no later than 90 days of enactment of this act. CBO has estimated that nearly 65,000 surviving spouses would receive the SSIA in FY2018.

Section 648 requires the Defense Secretary to provide for an independent assessment of the SBP by a federally funded research and development center (FFRDC), and to submit a report on the results of assessment with recommendations to the House Committee on Armed Services and the Senate Armed Services Committee. Required elements of this report include the effectiveness of the SBP to provide for survivors of servicemembers dying on active duty and while in reserve active-status, comparison of the benefits of the SBP with those of other government and private sector employees, and the feasibility and advisability of providing survivor benefits through alternative commercially available insurance products.

Reference ( s ) : CRS Report R40757, Veterans' Benefits: Dependency and Indemnity Compensation (DIC) for Survivors , by [author name scrubbed]; CRS Report R40589, Concurrent Receipt: Background and Issues for Congress , by [author name scrubbed].

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

TRICARE Reform

Background: TRICARE is the DOD-administered health benefits program that covers active duty servicemembers, uniformed services retirees, their family members, and survivors. The Administration's FY2017 Budget proposed a package of health care enrollment fees, deductible, and co-pay changes phased in over several years. The proposals included

replacing the TRICARE Prime, Standard, and Extra options with TRICARE Select and TRICARE Preferred options featuring a new annual enrollment period and a new benefit structure with enrollment fees, annual deductibles, co-payments, and annual catastrophic cap; annual enrollment fees for Medicare-enrolled retirees (with grandfathering of those Medicare-enrolled retirees already receiving TRICARE benefits at the time of enactment); and increased pharmacy co-pays for retirees and military family members, but not active duty members.

In addition to discretionary savings in the Defense Health Program appropriations account, the proposal would reduce TRICARE for Life expenditures. TRICARE for Life is funded on an accrual basis with each of the uniformed services making an annual payment to a fund known as the Medicare Eligible Retiree Health Care Fund (MERHCF). The MERHCF covers the accruing liability for the cost of future medical treatment provided to Medicare eligible uniformed services retirees and dependents by the TRICARE for Life program. For FY2017, the contribution to be paid into the MERHCF by each of the uniformed services will be $4,252 per active duty servicemember and $1,723 per reserve component member. The Congressional Budget Office (CBO) analysis of TRICARE proposals in the President's Budget estimated that over the period of 2016 to 2026

the pharmacy co-payment increases would save DOD $2.8 billion; the new TRICARE for Life enrollment fee would save $1.4 billion; the consolidation of TRICARE plans would cost DOD $0.2 billion; and the proposals would increase Medicare spending by $0.4 billion.

Discussion: Section 701 of the enacted bill will:

(1) establish a new TRICARE Select health plan option that would replace the current TRICARE Standard and Extra options, and would modify and retain the existing TRICARE Prime health maintenance organization style plan;

(2) establish tables in statute for both TRICARE Select and TRICARE Prime that would prescribe enrollment fees, deductibles, catastrophic caps, and co-payments for retirees joining TRICARE on or after January 1, 2018, and establish a calendar year enrollment period for those fees;

(3) require the Secretary to establish an open enrollment period, with a grace period during the first year of open enrollment, and allow enrollment for qualifying events for annual participation in either TRICARE Prime or TRICARE Select;

(4) limit requirements for pre-authorization for referrals under TRICARE Prime to inpatient hospitalization, inpatient care at a skilled nursing facility, and inpatient care at a rehabilitation facility;

(5) require the Secretary of Defense, not later than June 1, 2017, to submit an implementation plan that would meet specified access criteria to the armed services committee and require the Comptroller General to review that plan; and

(6) require a pilot program on incorporation of value-based health care methodology in the purchased care component of the TRICARE program.

Beneficiary cost-sharing is further discussed below in the TRICARE Beneficiary Cost-Sharing and TRICARE Pharmacy Co-payment sections.

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

*TRICARE Beneficiary Cost-Sharing

Background: In its FY2017 budget request, the Administration proposed to replace the TRICARE Prime, Standard, and Extra health plan options with a consolidated plan, to increase co-pays for pharmaceuticals, and to establish a new enrollment fee for future enrollees in the TRICARE-for-Life program (that acts like a Medigap supplement plan for Medicare-enrolled beneficiaries). The House-passed bill would have consolidated TRICARE Standard and Extra into a new TRICARE Preferred plan. The Senate-passed bill would have consolidated them into a new TRICARE Choice plan.

Discussion: Section 701 of the enacted bill amends Chapter 55 of Title 10 of the United States Code to include tables specifying cost-sharing amounts for active-duty family members and for retirees under the new TRICARE Select and the existing TRICARE Prime options (see Table 1 and Table 2 ). The fixed dollar amounts in the tables will be annually indexed to the amount by which retirement pay is increased. Exceptions to the cost-sharing amounts will be provided to disability retirees, their dependents, and survivors. Cost-sharing for TRICARE for Life beneficiaries would not change.

A "reserve and young adult" category also will be created for beneficiaries of the TRICARE Reserve Select and TRICARE Young Adult Program. Premiums under these two programs will continue to be calculated as before, however, the other new-cost sharing table provisions will apply as appropriate. Retired beneficiaries who were eligible for TRICARE prior to 2018 will be subject to a $150 individual or $300 family annual enrollment fee beginning 90 days after the Comptroller General submits a report to the armed services committees. The GAO report is required not later than February 1, 2020. The report will review the following: (1) whether health care coverage has changed since enactment of the Section 701 provisions, (2) whether beneficiaries are able to obtain appointments for health care appointments according to access standards to be established by the Secretary of Defense, (3) the percent of network providers that accept new TRICARE patients, and (4) the satisfaction of TRICARE Select beneficiaries.

TRICARE Prime beneficiaries that obtained care without a required referral would be required to either obtain a waiver or pay 50% of the allowed charge.

Reference(s): Previously discussed in CRS Report R44120, FY2016 National Defense Authorization Act: Selected Military Personnel Issues , coordinated by [author name scrubbed], CRS Report R43647, FY2015 National Defense Authorization Act: Selected Military Personnel Issues , coordinated by [author name scrubbed], and CRS Report R43184, FY2014 National Defense Authorization Act: Selected Military Personnel Issues , coordinated by [author name scrubbed].

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

*TRICARE Pharmacy Co-payments

Background: TRICARE beneficiaries have access to a pharmacy program that allows outpatient prescriptions to be filled through military pharmacies, TRICARE mail-order pharmacy, or TRICARE retail network and non-network pharmacies. Active duty servicemembers have no pharmacy co-payments when using military pharmacies, TRICARE Pharmacy Home Delivery, or TRICARE retail network pharmacies. Military pharmacies provide free-of-charge a 90-day supply of formulary medications for prescriptions written by either civilian or military providers. Non-formulary medicines generally are not available at military pharmacies. It is DOD policy to use generic medications instead of brand-name medications whenever possible. The 2016 NDAA ( P.L. 114-92 ) (1) allowed a one-time $3 increase to retail and mail order pharmacy co-pays, and (2) required refills for maintenance drug prescriptions (e.g., medication for cholesterol, blood pressure) to be filled through mail order or military pharmacies, thereby eliminating the option to have these prescriptions filled through relatively higher-cost retail pharmacies. The Administration's FY2017 budget request proposed a series of annual increases in the amount of co-payments for fiscal years 2017 through 2025. DOD estimated the increases would avoid $300 million in FY2017 and $2 billion over the fiscal years 2017 to 2021.

Discussion: The House-passed bill did not include a provision to allow a pharmacy co-payment increase. Under existing law the co-payment amounts would automatically increase at the same rate as the annual increase in retired pay. Section 702 of the FY2016 NDAA ( P.L. 114-92 ) overrode the statutory increase and substituted a $3 increase that took effect on February 1, 2016. Prior to that, Section 702 of FY2015 NDAA ( P.L. 113-291 ) included a pharmacy co-payment increase that took effect on February 1, 2015.

Section 702 of the Senate-passed bill would have allowed beneficiaries to continue receiving drugs, at no cost, in military medical treatment facilities, and there would be no changes to cost-sharing amounts for survivors of members who died on active duty or for disabled retirees and their family members.

Section 702 would have also authorized the Secretary of Defense, based upon recommendations by the Department of Defense Pharmacy and Therapeutics Committee and review by the Uniform Formulary Beneficiary Advisory Panel, to exclude from coverage any drug that the Secretary determines provides little or no value to covered beneficiaries and DOD. Additionally, the Secretary could have given preferential status to any non-generic drug on the TRICARE formulary by treating it, for the purposes of cost-sharing, as a generic product under the TRICARE retail pharmacy and mail order options.

CBO estimated that implementing Section 702 would have reduced DOD's net discretionary pharmacy costs by about $640 million over the 2017-2021 period. CBO further estimated that Section 702 would reduce net health care spending for TRICARE for Life beneficiaries (who are eligible for Medicare) by $2.7 billion over the 2017-2026 period. Pharmacy spending for those beneficiaries is paid out from the DOD Medicare-Eligible Retiree Health Care Fund (MERHCF), a mandatory account. CBO estimated that implementing Section 702 would have reduced accrual payments into the MERHCF (that funds the TRICARE for Life program) by about $1.5 billion over the 2018-2021 period.

Reference(s) : Previously discussed in CRS Report R44120, FY2016 National Defense Authorization Act: Selected Military Personnel Issues , coordinated by [author name scrubbed], CRS Report R43647, FY2015 National Defense Authorization Act: Selected Military Personnel Issues , and CRS Report R43184, FY2014 National Defense Authorization Act: Selected Military Personnel Issues .

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

Administration of the Defense Health Agency and Military Medical Treatment Facilities

Background: The Defense Health Agency (DHA) was formed October 1, 2013, as a joint, integrated combat support agency. Its purpose is to enable Armed Forces medical services to provide a medically ready force and a ready medical force to combatant commands. It currently manages shared services as well as the TRICARE program and acts as the market manager for the National Capital Region enhanced Multi-Service Market, which includes Walter Reed National Military Medical Center and Fort Belvoir Community Hospital. The service surgeons general currently oversee management of military treatment facilities (MTFs).

Discussion: The conference report states:

After careful study and deliberation, the conferees conclude that a single agency responsible for the administration of all MTFs would best improve and sustain operational medical force readiness and the medical readiness of the Armed Forces, improve beneficiaries' access to care and the experience of care, improve health outcomes, and lower the total management cost of the military health system. The conferees believe that the current organizational structure of the military health system—essentially three separate health systems each managed by one of the three Services—paralyzes rapid decision-making and stifles innovation in producing a modern health care delivery system that would better serve all beneficiaries. A streamlined military health system management structure would eliminate redundancy and generate greater efficiency, yielding monetary savings to the Department while leading to true reform of the military health system and improving the experience of care for beneficiaries.

To do this, Sections 702 and 703 of the conference bill combined provisions of Sections 721, 725, and 729 of the Senate bill and Sections 702 and 703 of the House bill.

Section 702 of the enacted bill requires the Director of the Defense Health Agency, beginning October 1, 2018, to take responsibility for the administration of each MTF, including all matters with respect to

budget; information technology; health care administration and management; administrative policy and procedure; military medical construction; and any other matters the Secretary determines appropriate.

Section 702 requires the establishment of a professional staff within the Defense Health Agency to provide policy, oversight, and direction of all matters related to the administration of MTFs.

Section 702 also codifies the roles and responsibilities of the services' Surgeons General. Each service's Surgeon General will serve as the principal advisor to the Secretary and senior uniformed officer of their respective service on health and medical matters. In addition they shall recruit, organize, train, and equip, the medical personnel of their respective services.

Section 702 also requires the Secretary to develop an implementation plan and to submit

an interim report providing a preliminary draft of the plan to the armed services committees by March 1, 2017; and a final report to the committees by March 1, 2018, containing a final version of the plan.

Finally, the provision would require the Government Accountability Office to submit to the committees a review of preliminary draft of the DOD implementation plan by September 1, 2017, and a review of the final version of the plan by September 1, 2018.

Section 703 of the enacted bill adds a new Section 1073d "Military medical treatment facilities" to Chapter 55 of Title 10 of the United States Code that would require the Secretary of Defense to maintain medical centers, hospitals, ambulatory care centers, and satellite centers, "to support the medical readiness of the armed forces and the readiness of medical personnel" in areas where civilian health care facilities are unable to support the health care needs of the Armed Forces and covered beneficiaries. The provision provides an exception when the Secretary determines that a change in facilities or services eliminates the ability of a covered beneficiary to access care through non-DOD providers.

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

*Active and Reserve Enlistment Qualifications

Background: Current law for active component enlistees (10 U.S.C. §504) requires that they be (1) a national of the United States (i.e., either a citizen or a non‐citizen who owes permanent allegiance to the United States—a category limited primarily to those born in American Samoa), (2) a lawful permanent resident, or (3) a person described in the Compact of Free Association between the United States and Micronesia, the Marshall Islands, and Palau. Current law for reserve component enlistees (10 U.S.C. §12102) requires that they be either citizens or lawful permanent residents, or have previously served in the Armed Forces. These citizenship requirements may be waived under 10 U.S.C. §504 "if the Secretary determines that such enlistment is vital to the national interest."

Discussion: The Senate bill would have amended the statutory requirements to enlist in the reserve components so they would be tied to the citizenship/residency requirements for the active component. The conference bill did not include the Senate provision.

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

Military Parental Leave

Background: Chapter 40 of Title 10 United States Code provides the authority for military leave entitlement, accumulation, and use. On January 28, 2016, Secretary of Defense Ashton Carter announced that DOD would be establishing new policies for maternity and parental leave as part of the department's "Force of the Future" initiative designed to attract and retain talent in the Armed Forces. Existing DOD policy defined maternity leave as, "a convalescent period up to 6 weeks following pregnancy and childbirth." The new policy, as announced, extended the period of maternity leave up to 12 weeks. DOD also sought legislative action to extend parental leave up to 14 days. Parental leave for a servicemember whose spouse gives birth was first authorized in the National Defense Authorization Act for Fiscal Year 2009 ( P.L. 110-417 ) and is currently authorized for a maximum of 10 days. Since 2006 ( P.L. 109-163 ), a servicemember who adopts a child is eligible for up to 21 days of leave to be used in connection with an adoption. In dual-service married couples, only one servicemember is eligible to take this leave in connection with the adoption. Parental leave is in addition to regular accrued annual leave.

Discussion : Section 521 of the enacted bill adopts the Senate provision which authorizes up to 12 weeks of total leave (including up to 6 weeks convalescent leave) for the primary caregiver in connection with the birth of the child. It also authorizes 6 weeks of leave for a primary caregiver in the case of an adoption of a child. Secondary caregivers could be awarded up to 21 days of leave in connection with a birth or adoption. This section requires the Secretary of Defense to prescribe regulations defining "primary" and "secondary" caregivers for the purpose of this leave benefit. The leave taken in connection with the birth or adoption may only be in one increment and must be taken within a year of the event. To be eligible for this leave, the individual must be a member of the active component or a member of a reserve component performing active Guard and Reserve duty or subject to an active duty recall or mobilization order in excess of 12 months. Although parental leave authorized by this provision is in addition to any other leave a servicemember may have earned, this section also would allow the Secretary of Defense to prescribe regulations that would require a servicemember to extend their service obligation or to incur a reduction in their existing leave in their account when taking parental leave.

Section 521 of the final bill also adopted a Senate-proposed provision that adds Section 704a, Title 10 United States Code explicitly prohibiting any leave from being awarded to military servicemembers outside of what is authorized by statute. According to the conference report, "The committee considers this provision necessary to clarify that military leave is established by law and may not be created without express congressional authority." Approximately 60% of the active duty force has a dependent spouse and/or children and 6.4% are in a dual-military marriage. Supporters of paid parental leave suggest that it encourages workforce recruitment and retention by making Armed Forces benefits more competitive with private sector benefits, and that additional leave helps support the well-being of military families. Those opposed to lengthening military maternity and parental leave suggest that it could negatively impact military readiness due to lost duty time and potentially undermanned units.

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

*Defense Commissary System

Background: Over the past few years, Congress has been concerned with improving the Defense Commissary (DeCA) system but there have been no changes enacted. In FY2016, Congress authorized $1.4 billion in commissary funding—$100 million more than the President's budget request. The President's FY2017 budget request proposed $1.2 billion for commissaries, a reduction of $200 million in subsidies for stateside commissaries from FY2016. Authorized patrons currently include active duty military members, Guard and Reserve component members, retired personnel and their families, 100% disabled veterans, Medal of Honor recipients, and DOD civilians stationed at U.S. installations overseas.

The FY2016 NDAA (Section 651, P.L. 114-92 ) required the Secretary of Defense to submit a report to the armed services committees with a plan to obtain budget neutrality for DeCA and the military exchange system. The FY2016 NDAA specified that any changes to the commissary system must maintain current levels of patron savings and satisfaction. The report, Plan to Obtain Budget Neutrality for Commissary and Exchange System , was released by DOD on June 7, 2016. This report acknowledges that "privatization would not be able to replicate the range of benefits, level of savings and geographic reach provided by DeCA while achieving budget neutrality." Some critics of privatization maintain that there are too many unknowns and that this report and others should be fully evaluated by DOD and Congress before initiating a pilot program.

Furthermore Section 651, subpart (d), directed the Comptroller General to submit an assessment of DOD's June 2016 plan. This assessment, DOD Commissaries and Exchanges: Plan and Additional Information Needed on Cost Savings and Metrics for DOD Efforts to Achieve Budget Neutrality , was published on November 9, 2016. This assessment specified that DOD's report does not provide a plan for achieving budget neutrality in the commissary and exchange systems by October 2018, to operate without any taxpayer dollars and without negatively affecting commissary and exchange benefits. According to GAO, the DOD report addressed three of the seven mandated benchmarks (customer satisfaction, quality of products, and patron savings) but did not define specific metrics for each of the benchmarks, and only partially discussed the other four mandated elements (establishment of common business processes at DeCA and exchanges; privatization of commissaries and exchanges; description of the impact of closing commissaries; and the analysis of different pricing options at commissaries).

In addition, Section 652 of the FY2016 NDAA required the Comptroller General of the United States to submit a report on the Commissary Surcharge, Non-appropriated Fund, and Privately-Financed Major Construction Program of the Department of Defense. This report is pending.

Discussion : Sections 661 and 662 of the enacted bill are similar to provisions in both the House-passed H.R. 4909 and Senate-passed S. 2943 versions that allow DeCA to set prices for merchandise sold in commissaries based on market conditions and customer demand, and authorize the use of the Military Star Card as a form of accepted payment at commissaries. The conference report notes that these reforms to the commissary system would preserve the benefit, while also making improvements to ensure continued savings for patrons, a good value for taxpayers, and ongoing support for morale, welfare, and recreational (MWR) activities. Reforms include regular congressional oversight of improvements, establishment of common business practices such as engaging expert commercial advice, and implementing private sector initiatives such as variable pricing and the development of private label products.

Under current law, DeCA is required to set prices at levels necessary to recover the actual cost of the merchandise plus any costs to replace damaged, deteriorated, or lost inventory. According to CBO, DeCA is expected to implement this provision by offering private label goods under a variable pricing program that would allow DeCA to add a markup to those private label goods and use the proceeds to offset its operating costs. CBO estimates that proceeds from the markup in prices would decrease direct spending by less than $500,000 over the next decade (2017-2026).

Section 661 of the enacted bill requires DOD to develop and implement a strategy to optimize practices across the DeCA and the military exchange network with the objective to reduce reliance on appropriated funds without compromising patrons' commissary benefits or the revenue generated by DOD's non-appropriated fund entities. Commissaries could use flexible product pricing that would need to ensure the current level of savings is maintained. DOD will be allowed to convert the commissary agency to a non-appropriated fund entity if established benchmarks are met and savings are maintained for at least six months. If conversion to a non-appropriated fund entity occurs, the Defense Secretary would be required to ensure that no current DeCA employee would incur a loss or decrease in pay resulting from the conversion. This provision would also allow DOD to enter into contracts with commercial grocery industry experts to assist in the transformation of the commissary system into a high-performing grocery operation.

Section 662 of the conference report authorizes acceptance of the Military Star Card, an Army and Air Force Exchange Service (AAFES) administered credit card, as a form of payment for goods and services at commissary stores.

Reference(s): CRS Report R44019, Fact Sheet: Selected Highlights of the FY2016 Defense Budget Debate and the National Defense Authorization Acts (H.R. 1735 and S. 1356) , by [author name scrubbed]; CRS Report R44120, FY2016 National Defense Authorization Act: Selected Military Personnel Issues , coordinated by [author name scrubbed].

DOD, Plan to Obtain Budget Neutrality for Commissary and Exchange System , May 2016.

DODIG Memorandum, Audit of Fresh Produce Contracts for the U.S. Pacific Command Theater, August 5, 2016, (Project No. D2016-D000AJ-0186.000) at http://www.dodig.mil/ELetter/Documents/announcementProjects/D2016-D000AJ-0186.000.pdf .

GAO-17-38, DOD Commissaries and Exchanges: Plan and Additional Information Needed on Cost Savings and Metrics for DOD Efforts to Achieve Budget Neutrality [Reissued on November 14, 2016].

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

Servicemember Education, Credentialing, and Transition

Background: In the past few decades, Congress has enacted legislation and appropriated funds for servicemember off-duty education (tuition assistance), credentialing programs, and transition services to support servicemembers and veterans in successfully translating military skills and experience into po st-service education and employment opportunities. Three programs of note are the Transition Assistance Program (TAP); the Credentialing Opportunities Online (COOL); and the DOD Skillbridge program, which is also known as the Job Training, Employment Skills Training, Apprenticeships, and Internships (JTEST-AI) program.

Discussion : Section 561 of the final bill eliminates "the requirement that credentialing programs be accredited by third party accreditation bodies, and instead would require that credentialing programs meet certain other quality assurance benchmarks." Section 561 of the Senate version, which would have limited tuition assistance funds to education and training that are likely to contribute to the member's professional development, was not adopted. Sections 567 and 568 require DOD reports on specific transition initiatives to help servicemembers qualified to operate maritime vessels to obtain merchant mariner licenses and certifications, assessment of the availability of college credit for skills acquired during military service, and evaluation of the usage of the JTEST-AI program.

Section 3590 sets deadlines for the processing of applications for transportation worker identity credentials (TWIC) for separating military servicemembers. Section 564 of the final version also requires DOD to provide information and application for such cards to separating servicemembers as part of TAP. Sections 562 and 563 require DOD to provide notification about recoupment of separation payments and to provide counseling on substance abuse during mandatory TAP training.

Finally, Section 566 of the House bill, which would have authorized DOD to carry out a pilot program to provide job placement/employment services directly to reserve component members, was not adopted.

Reference ( s ) : CRS In Focus IF10347, Military Transition Assistance Program (TAP): An Overview , by [author name scrubbed], and CRS Report R42790, Employment for Veterans: Trends and Programs , coordinated by [author name scrubbed].

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

Changes to General and Flag Officer Grades and Positions

Background: The most senior officers in the military are known as general officers (Army, Air Force, and Marine Corps) or flag officers (Navy). At the highest level such general and flag officers (GFOs) hold the most visible and important military positions in the DOD, including the Chairman of the Joint Chiefs of Staff, the chiefs of the four military services, and the combatant commanders. The most senior GFOs hold the rank of general or admiral ("4-star," paygrade O-10), followed by lieutenant general and vice admiral ("3-star," paygrade O-9), major general and rear admiral ("2-star," paygrade O-8), and brigadier general and rear admiral—lower half ("1-star," paygrade O-7). The total number of GFOs in each grade is limited by statute (10 U.S.C. §§525, 526, and 12004), and Congress has designated that certain positions in the Armed Forces must be filled by general or flag officers of a particular grade. Congress periodically reviews and revises the number, duties, and compensation of GFOs.

Discussion: Section 910 of the House bill would have required that the service and functional component commanders who serve under a combatant commander hold a rank no higher than lieutenant general or vice admiral. Section 910 would also require DOD to reduce the total number of active duty generals and admirals by 5 (as of April 30, 2016, there were 38 such officers). Section 911 would have required the establishment of a new unified combatant command for cyber operations, to be led by an admiral or general. The current U.S. Cyber Command, led by Admiral Michael Rogers, is a subordinate command of the U.S. Strategic Command.

The Senate bill would have reduced the number of authorized active and reserve GFOs by 25%, effective December 31, 2017. For active component GFOs, the reductions would be weighted more heavily toward higher-ranking GFOs. For example, the maximum number of active component GFOs currently authorized at the 3‐star and 4‐star level is 206; under the proposed Senate language, this number would drop to 111. The Senate bill would have also eliminated certain statutory grade requirements, primarily in the medical, legal, personnel, legislative liaison, chaplain, and reserve communities, as well as certain senior staff positions, that specified positions be held by a GFO. Without statutory grade requirements, DOD could set the grades at a higher, lower, or identical grade, but would still need to manage general and flag officer numbers within the overall general and flag officer caps specified in law.

Section 501 of the enacted bill requires the Secretary of Defense to reduce the total number of GFOs on active duty so they are 110 less than the number currently authorized by December 31, 2022. This amounts to a reduction of about 11% in the number of authorized positions; however, since only 889 of the 962 currently authorized positions are filled at present, the reduction in GFO personnel will be smaller than the reduction in positions. The reductions in authorized positions will be distributed as follows: Army, from 231 to 220; Navy, from 162 to 151; Air Force, from 198 to 187; Marine Corps, from 61 to 62 (increased); joint pool, from 310 to 232. Section 501 also provides a temporary allocation of 30 additional GFO positions to the joint pool for contingency operations. Subparagraph (e) of Section 501 allows the Secretary of Defense to alter these reductions, or their distribution, in the interest of national security, but the House and Senate Armed Services Committees must be notified within 30 days of doing so. The provision includes a number of reporting requirements on implementation, and also requires the Secretary of Defense to conduct a "comprehensive and deliberate global manpower study of requirements for general and flag officers," which provides a justification for each GFO position, and identifies an additional 10% reduction in the number of authorized GFO positions along with the distribution of those reductions. The study results are to be submitted to the House and Senate Armed Services Committees by April 1, 2017.

Reference(s): CRS Report R44389, General and Flag Officers in the U.S. Armed Forces: Background and Considerations for Congress , by [author name scrubbed] and CRS Report R42077, The Unified Command Plan and Combatant Commands: Background and Issues for Congress , by [author name scrubbed].

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

*Joint Duty Assignments

Background: Chapter 38 of Title 10 U.S.C. concerns the management of active duty officers who are "particularly trained in, and oriented toward, joint matters." Officers are required to complete certain educational requirements and duty assignments to become such joint qualified officers . In recent years, there has been some debate over whether current qualification requirements lead to the development of officers with an appropriate mix of service and joint experiences.

Currently, the definition of joint matters is

... matters related to the achievement of unified action by integrated military forces in operations conducted across domains such as land, sea, or air, in space, or in the information environment, including matters relating to—

(A) national military strategy;

(B) strategic planning and contingency planning;

(C) command and control of operations under unified command;

(D) national security planning with other departments and agencies of the United States;

(E) combined operations with military forces of allied nations; or

(F) acquisition matters addressed by military personnel and covered under chapter 87 of this title.

To become a joint qualified officer, an individual must complete specific joint professional military education requirements, and complete a "full tour of duty in a joint assignment" or other assignments that demonstrate mastery of joint matters. Joint duty assignments are normally at least two years for general and flag officers (GFOs) and three years for other officers, although the Secretary of Defense may waive this requirement.

Discussion: Both the House and Senate bills would have modified the statutory criteria for joint duty assignments, including standardizing the length of a joint duty assignment at two years for all officers. Thus, a two-year joint duty assignment—rather than a three-year assignment—would qualify as a "full tour of duty" for officers who are not GFOs. Both bills would have expanded the definition of joint matters "to better capture the breadth of duties and positions that comprise joint matters experience." For example, matters relating to "intelligence, fires, movement and maneuver, protection or sustainment of operations under unified command" would have been considered as joint matters. Additionally, the Secretary of Defense would have been allowed to designate other joint matters in regulation. Finally, the definition of joint duty assignment would have been modified. Both bills would have added an additional requirement that the preponderance of the duties of the officer involve joint matters to the existing statutory requirement that joint duty assignments be limited to "assignments in which the officer gains significant experience in joint matters."

The enacted bill adopted the Senate language amending 10 U.S.C. §664 with regard to joint duty assignments, and the House language amending the definition of "joint matters" under 10 U.S.C. §668.

Reference(s): CRS Report R44496, Military Officer Personnel Management: Key Concepts and Statutory Provisions , by [author name scrubbed] and CRS Report R44474, Goldwater-Nichols at 30: Defense Reform and Issues for Congress , by [author name scrubbed].

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

Selective Service

Background: The Military Selective Service Act (MSSA) provides the statutory authority for the federal government to maintain a Selective Service System (SSS) as an independent federal agency responsible for delivering appropriately qualified civilian men for induction into the Armed Forces of the United States as authorized by Congress. The MSSA requires most males between the ages of 18 and 26 who are citizens or residents of the United States to register with Selective Service. Women in the United States have never been required to register for the draft. Men who fail to register may be subject to criminal penalties, loss of eligibility for certain federal or state employment opportunities and education benefits, and denial of security clearances. Documented or undocumented immigrants who fail to register may not be able to obtain United States citizenship.

Discussion : Recent DOD policy changes that have opened all military occupational specialties (MOSs) including ground combat positions to women have called into question the Selective Service registration exemption for women. While some feel that women should now be required to register, others have questioned the need to maintain the registration requirement and other provisions of the MSSA. Section 591 of the Senate bill would have expanded selective service registration requirements to women who attain the age of 18 on or after January 1, 2018. The House bill did not contain a similar provision. This provision was not adopted in the final bill

Some have questioned whether the Selective Service System is still needed and if there are other mechanisms that could be used to meet emergency manpower needs. Section 552 of the final bill requires DOD to produce a detailed review and report on the Selective Service System, including its benefits and viability, as well as an analysis of potential DOD manpower needs in the event of an emergency requiring mass mobilization. Sections 551 and 553-557 adopt the Senate provisions that establish an independent commission to be known as the National Commission on Military, National, and Public Service to examine these and other questions. This 11-member commission would include appointees by the Administration and senior members of the House, Senate, and armed services committees. The provision would establish the commission over a period of 36 months and authorize $15 million in funding in FY2017.

Reference(s): CRS Report R44452, The Selective Service System and Draft Registration: Issues for Congress , by [author name scrubbed], CRS Insight IN10414, Women and the Selective Service , by [author name scrubbed], CRS Report R42075, Women in Combat: Issues for Congress , by [author name scrubbed].

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

*Military Sexual Assault and Sexual Harassment

Background: Over the past decade, the issues of sexual assault and sexual harassment in the military have generated a good deal of congressional and media attention. In 2005, DOD issued its first department-wide sexual assault policies and procedures (DOD Directive 6495.01 and DOD Instruction 6495.02). These policy documents built on recommendations from the Joint Task Force for Sexual Assault Prevention and Response and congressional requirements specified in the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 ( P.L. 108-375 ). In the same year, the task force transitioned into a permanent office, the Sexual Assault Prevention and Response Office (SAPRO), which serves as DOD's primary oversight body for all of the service-level programs. In May 2013, DOD released its first Sexual Assault Prevention and Response (SAPR) strategic plan with an update in January 2015. Between 2012 and 2016, DOD has taken a number of steps to implement its own strategic initiatives as well as dozens of congressionally mandated actions related to military justice and investigations, sexual assault prevention, victim services, and reporting and accountability.

Discussion : DOD's Sexual Assault Prevention and Response Office (SAPRO) is required by law ( P.L. 111-383 ) to report statistics and analysis of sexual assault in the military on an annual basis. The Senate bill (§551) would have extended reporting requirements from March 1, 2017, to 2025 and would move the deadline for delivery of annual reports to Congress from April 30 to March 31. Section 544 of the conference bill adopted the House provision (§542) that would extend annual reporting requirements to January 31, 2021, and established April 30 as the deadline for reports to be submitted to Congress. The estimated cost for preparing the FY2015 report was $6.9 million.

The FY2015 DOD Annual Report on Sexual Assault in the Military included findings from focus groups on sexual assault prevention and response and from the 2015 Military Investigation and Justice Experience Survey. Feedback from these studies indicates that servicemembers have concerns about retaliation associated with reporting instances of sexual assault. There has been some concern that the various types and definitions of retaliation are not well understood, leading to confusion in investigations and reporting of retaliation. Both the House (§546) and Senate (§542) bills included similar provisions that would increase training requirements for investigators; Section 546 of the enacted bill adopts the Senate provision with a clarifying amendment. Section 545 of the House bill would have modified burden of proof requirements to align them more closely with other retaliation investigation law. This provision was not adopted; however, as noted in the conference report,

The conferees remain concerned about reports from military personnel who indicate they have been subjected to retaliation after making protected communications. The conferees intend to remain seized of this issue and will assess the impact of the provisions in this bill to reducing the prevalence of retaliation in the military.

Sections 543 and 545 of the enacted bill adopt Senate provisions that require DOD to develop and annually report on metrics that evaluate efforts to prevent and respond to retaliation in connection with reports of military sexual assault.

Congress has raised concerns about the character of discharge for certain veterans who experienced sexual trauma while serving in the military. Other-than-honorable discharges can prevent servicemembers from being eligible for certain veteran's benefits. Servicemembers may appeal these decisions through a discharge review board. Currently by law (10 U.S.C. §§1177 and 1553) those servicemembers with PTSD or TBI in connection with combat have certain additional medical assessments prior to administrative separation and enhanced discharge review board consideration. The enacted bill (§§535 and 554) adopts Senate provisions that amend the law to apply to servicemembers and veterans who experienced PTSD or TBI in connection with sexual trauma.

Currently DOD handles sexual harassment under the Military Equal Opportunity Program and SAPRO oversees sexual assault policies. Within the conference report, the Senate Armed Services Committee expressed concerns that "the existing definition of sexual harassment has caused the military services to consider sexual harassment as a violation of equal opportunity policy instead of an adverse behavior that data have demonstrated is on the spectrum of behavior that can contribute to an increase in the incidence of sexual assault." Section 548 of the enacted bill modifies the definition of sexual harassment in 10 U.S.C. 1561(e) for purposes of investigating complaints of harassment by commanding officers.

Reference ( s ) : See also CRS Report R43168, Military Sexual Assault: Chronology of Activity in Congress and Related Resources , by [author name scrubbed]; CRS Report R43213, Sexual Assaults Under the Uniform Code of Military Justice (UCMJ): Selected Legislative Proposals , by [author name scrubbed]. Previously discussed in CRS Report R44120, FY2016 National Defense Authorization Act: Selected Military Personnel Issues , coordinated by [author name scrubbed] and similar reports from earlier years.

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

Child Abuse and Domestic Violence

Background: There are approximately 1.1 million dependent children of active duty military servicemembers. According to DOD statistics, in FY2014, there were 7,676 confirmed cases of child abuse or neglect in military homes, which was an increase of 10% from the previous year and a 10-year high. While rates of child abuse among military families remain below those of the general population, these statistics have raised concerns about prevention, management, and reporting of abuse in the Armed Forces.

Discussion : DOD's child and domestic abuse prevention, education, and training initiatives are implemented through the Family Advocacy Program (FAP). The FAP also responds to suspected instances of domestic abuse, provides victim advocacy services, and collects and reports data as required by law and regulation. Current law and regulations require some data sharing between DOD and the states on known or suspected instances of child abuse and neglect in which the child's caretaker is a member of the Armed Forces or the member's spouse. Section 575 of the final bill requires DOD personnel who suspect instances of child abuse and neglect to directly notify the appropriate state child welfare agency in addition to designated DOD representatives.

Section 574 of the enacted bill requires an annual Family Advocacy Program report to Congress that includes data on instances of child abuse and domestic abuse. The first report will be due on April 30, 2017, and this requirement would sunset after April 30, 2021. Proponents of this provision believe that it will improve reporting and oversight of abuse in military families.

Finally, Section 578 of the Senate bill would have required all DOD domestic schools and certain local educational agencies that receive Impact Aid to establish procedures for requiring employee criminal background checks, including searches of state-based child abuse and neglect registries and National Sex Offender databases. The House bill did not contain a similar provision and this provision was not in the final bill. Instead, the conference report included language that strongly urged DOD to

work as closely as possible with local school districts that educate military family members to share best practices to help those districts develop and improve comprehensive employment screening policies to ensure the safety of military children. The conferees direct the Department to provide a report to the Committees on Armed Services of the Senate and the House of Representatives, not later than 1 year after the date of enactment of this Act, on the Department's efforts to: 1) identify, to the extent practicable, any shortfalls in employee screening processes in local school districts educating military family members; and 2) provide recommendations to help address those shortfalls in the future.

Reference(s) : CRS Report R40899, The Child Abuse Prevention and Treatment Act (CAPTA): Background, Programs, and Funding , by [author name scrubbed]; CRS In Focus IF10335, DOD Domestic School System: Background and Issues , by [author name scrubbed]; CRS Report R44221, Impact Aid, Title VIII of the Elementary and Secondary Education Act: A Primer , by [author name scrubbed].

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

Uniform Code of Military Justice Reform

Background: In 2013, upon the recommendation of Chairman of the Joint Chiefs of Staff General Martin Dempsey, Secretary of Defense Chuck Hagel directed the General Counsel of the Department of Defense (General Counsel) to complete a comprehensive review of the Uniform Code of Military Justice (UCMJ, codified at Chapter 47 of Title 10 of the United States Code) and its implementation through the Manual for Courts-Martial (MCM) and service regulations. Additionally, Secretary Hagel directed the General Counsel to consider the report and recommendations of the Response Systems to Adult Sexual Assault Crimes Panel, a separate and independent review of the systems used to investigate and resolve adult sexual assault and related offenses in the military. The General Counsel established the Military Justice Review Group (MJRG) with a focus on reviewing the structure and operation of the UCMJ and MCM. Specifically, the MJRG was tasked with completion of two reports: (1) a legislative proposal to modify the UCMJ, and (2) proposed implementing rules in the MCM. As a result of the work of the MJRG, on December 28, 2015, the Department of Defense submitted the Military Justice Act of 2016 to Congress and bills were subsequently introduced in the House and Senate to revise the UCMJ.

Discussion : The proposed House bill comprised a comprehensive revision to the UCMJ, including statutory additions and substantive amendments. The House bill addressed various aspects of military justice including, but not limited to, courts-martial composition, trial procedure, sentencing, and appellate matters. For example, with respect to sentencing, the House bill would have granted the government the ability to appeal a sentence adjudged if the sentence violated the law or was plainly unreasonable; previously the right to appeal was only available to the servicemember. Among the most substantive revisions proposed in the House bill were changes to the punitive articles (i.e., the offenses for which a servicemember may be court-martialed). The House bill would have provided for many offenses addressed by Executive Order through the General Article to be identified by specific statutory sections as part of a general reorganization of the punitive articles. Additionally, the House bill would have created new offenses, including (1) Article 93a—prohibited activities with military recruit and trainee by person in position of special trust; (2) Article 121a—fraudulent use of credit cards, debit cards, and other access devices; (3) Article 123—offenses concerning government computers; and (4) Article 132—retaliation.

The proposed Senate bill also addresse d various aspects of military justice including, but not limited to, courts-martial composition, trial procedure, sentencing, and appellate matters. Although both the House and Senate proposals we re referred to as the "Military Justice Act of 2016," differences exist ed between the House and Senate language. For example, as discussed above, the House language would have allowed the g overnment to appeal a sentence adjudged if the sentence violate d the law or wa s plainly unreasonable . T he Senate language , however, would have require d the creation of military-specific sentencing parameters and criteria and provided that an adjudged sentence that divert ed from the criteria and paramet ers would be appealable by the g overnment . While the Senate language also proposed to reorganize the punitive articles , it significant ly differe d from the House language in its proposed changes to offenses related to rape and sexual assault. Specifically, the Senate bill would have add ed the use of "position, rank, or authority to coerce the acquiescence of the other person in the sexual act" as a prohibited act punishable by court-martial to Article 120 .

Differences between the House and Senate bills were resolved in conference. Consistent with the House and Senate bills, the final bill includes a comprehensive revision of the UCMJ. However, some language was not included in the final bill, for example, (1) a provision that would have required interim guidance on sentencing parameters and criteria and would have been subject to sunset at a later time; (2) an increase in the minimum punishment for sex-related offenses; and (3) changes to Art. 120, which would have expanded the definition of committing a sexual act upon another person to include the wrongful use of position, rank, or authority to coerce the acquiescence of the other person in the sexual act.

Reference(s) : CRS Report R41739, Military Justice: Courts-Martial, an Overview , by [author name scrubbed].

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

*Medal of Honor

Background: The Medal of Honor (MOH) is the military's highest award for valor "above and beyond the call of duty." In recent years, the MOH review process has been criticized by some as being lengthy and bureaucratic, which may have led to some records being lost and conclusions drawn based on competing eyewitness and forensic evidence. The reluctance to retroactively award the MOH or to upgrade other awards is generally based on efforts to maintain the integrity of the award and the awards process. This reluctance has led many to believe that the system of awarding the MOH is overly restrictive and that certain individuals are denied earned medals. As a result, DOD periodically reviews inquiries by Members of Congress and reevaluates its historical records. On January 6, 2016, DOD announced the results of its year-long review of military awards and decorations. This included review of the timeliness of the MOH process and review by all the military departments of the Distinguished Service Cross, Navy Cross, Air Force Cross, and Silver Star Medal recommendations since September 11, 2001, for actions in Iraq and Afghanistan. The results of the Service Cross and Silver Star Review are due to the Secretary of Defense on September 30, 2017.

Discussion: Sections 582, 583, and 596 of the conference report include provisions similar to the House-passed H.R. 4909 and Senate-passed S.2943.

Section 582 of the final bill waives the time limitations prescribed in various sections of Title 10, United States Code, to authorize the President to award certain valor awards, including the Congressional Medal of Honor, to a member or former member of the Armed Forces during certain contingency operations: Operation Enduring Freedom (OEF), Operation Iraqi Freedom (OIF), Operation New Dawn (OND), Operation Freedom's Sentinel (OFS), and Operation Inherent Resolve (OIR), resulting from a review of valor award nominations directed by the Secretary of Defense on January 7, 2016. The time waiver expires on December 31, 2019, and no medal may be awarded after that date under the authority of this section.

Section 583 of the final bill waives the time limitations specified in Section 3744 of title 10, United States Code, to authorize the award of the Medal of Honor to Gary M. Rose and to James C. McCloughan for acts of valor during the Vietnam War. This section authorizes the President to award the Medal of Honor to Gary M. Rose for acts of valor from September 11 through 14, 1970, while a member of the United States Army, Military Assistance Command Vietnam-Studies and Observation Group (MACVSOG); and to James C. McCloughan for acts of valor during combat operations between May 13, 1969, and May 15, 1969, while serving as a combat medic with Company C, 3d Battalion, 21st Infantry, 196th Light Infantry Brigade, American Division, Republic of Vietnam.

Section 586 of the enacted bill requires the Secretary of each military department to conduct a review of the service records of certain eligible veterans of the Korean and Vietnam Wars who are of Asian American or Native American Pacific Island descent and were previously awarded the Distinguished Service Cross, the Navy Cross, or the Air Force Cross. In those cases where the Secretary concerned determines that the service records of those veterans support the award of the Medal of Honor, this section would also waive the statutory time limitations for award of the Medal.

Reference ( s ) : CRS Report 95-519, Medal of Honor: History and Issues , by [author name scrubbed], and CRS Report R43647, FY2015 National Defense Authorization Act: Selected Military Personnel Issues , coordinated by [author name scrubbed]; and the Congressional Budget Office, Cost Estimate H.R. 4909 National Defense Authorization Act for Fiscal Year 2017 , May 11, 2016.

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

Appendix A. Reports and Studies

Congress often requests or requires pilot studies and reports within provisions of the National Defense Authorization Act and in associated committee reports. This Appendix includes reports related to military personnel issues that are required by the final bill.