FY2020 National Defense Authorization Act: Selected Military Personnel Issues
Released: 2020-02-25T00:00:00

Introduction

Each year, the House and Senate armed services committees take up national defense authorization bills. The House of Representatives passed its version of the National Defense Authorization Act for Fiscal Year 2020 (NDAA; H.R. 2500 ) on July 12, 2019. The Senate passed its version of the NDAA ( S. 1790 ) on June 27, 2019. These bills contain numerous provisions that affect military personnel, retirees, and their family members. Provisions in one version may not be included in the other, may be treated differently, or may be identical to those in the other versions. Following passage of each chamber's bill, a conference committee typically convenes to resolve the differences between the respective chambers' versions of the bill. The House passed the FY2020 NDAA conference report on December 11, 2019, and the Senate passed the report on December 17, 2019. On December 20, 2019, President Donald J. Trump signed the bill into law ( P.L. 116-92 ).

This report highlights 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.

Some issues discussed in this report were previously addressed in the FY2019 NDAA ( P.L. 115-232 ) and discussed in CRS Report R45343, FY2019 National Defense Authorization Act: Selected Military Personnel Issues , by Bryce H. P. Mendez et al., or other reports. Issues that were considered previously are designated with an asterisk in the relevant section titles of this report.

*Active Component End-Strength

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 Afghanistan and Iraq, Congress substantially increased the authorized personnel strength of the Army and Marine Corps. Congress began reversing those increases in light of the withdrawal of most U.S. forces from Iraq in 2011, the drawdown of U.S. forces in Afghanistan beginning in 2012, and budgetary constraints. Congress halted further reductions in Army and Marine Corps end-strength in FY2017, providing slight end-strength increases for both Services that year. In FY2018 and FY2019, Congress again provided slight end-strength increases for the Marine Corps, while providing a more substantial increase for the Army. However, the Army did not reach its authorized end-strength of 483,500 in FY2018 or its authorized end-strength of 487,500 in FY2019, primarily due to missing enlisted recruiting goals. End-strength for the Air Force generally declined from 2004 to 2015, but increased from 2016 to 2019. End-strength for the Navy declined from 2002 to 2012, increased in 2013 and remained essentially stable through 2017; it increased again in 2018 and 2019.

Authorized end-strengths for FY2019 and FY2020 are shown in Figure 1 .

Discussion: In comparison to FY2019 authorized end-strengths, the Administration's FY2020 budget proposed a decrease for the Army (-7,500) and increases for the Navy (+5,100), Marine Corps (+100) and Air Force (+3,700). The administration's proposed decrease for the Army reflects the challenges the Army is facing in recruiting a sufficient number of new enlisted personnel to expand its force. As stated in the Army's military personnel budget justification document, "Given the FY 2018 end strength outcome and a challenging labor market for military recruiting, the Army Active Component has decided to pursue a new end strength growth ramp. The Army has shifted to a more modest end strength growth ramp of 2,000 Soldiers per year, with end strength targets of 478,000 in FY 2019 and 480,000 in FY 2020. Beyond FY 2019, the steady 2,000 Solider per year growth increases Active Army end strength while maintaining existing high quality standards."

Section 401 of the enacted bill approved end-strengths identical to the Administration request.

References: Previously discussed in CRS Report R45343, FY2019 National Defense Authorization Act: Selected Military Personnel Issues , by Bryce H. P. Mendez et al. and similar reports from earlier years. Enacted figures found in P.L. 115-232 .

CRS Point of Contact: Lawrence Kapp.

*Selected Reserve End-Strength

Background: The authorized Selected Reserve end-strengths for FY2001, enacted the year prior to the September 11 terrorist attacks, were: 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). The overall authorized end-strength of the Selected Reserves has declined by about 6% over the past 18 years (874,664 in FY2001 versus 824,700 in FY2019). During this period, the overall decline is mostly attributed to reductions in Navy Reserve strength (-29,800). There were also smaller reductions in the authorized strength for the Army National Guard (-7,026), Army Reserve (-5,800), Marine Corps Reserve (-1,058), Air National Guard (-922), Air Force Reserve (-4,358), and Coast Guard Reserve (-1,000).

Authorized end-strengths for FY2019 and FY2020 are shown in Figure 2 .

Discussion: Relative to FY2019 authorized end-strengths, the Administration's FY2020 budget proposed decreases in the Army National Guard (-7,500), Army Reserve (-10,000), and Navy Reserve (-100), increases for the Air National Guard (+600) and Air Force Reserve (+100), and no change for the Marine Corps Reserve and Coast Guard Reserve. The Administration's proposed decrease for the Army National Guard and the Army Reserve reflected the challenges those reserve components have had in meeting their authorized strength. According to the Army National Guard (ARNG) FY2020 military personnel budget justification document:

The ARNG fell short of the FY 2018 National Defense Authorization Act (NDAA) Congressionally authorized End Strength 343,500 by 8,296 Soldiers due to recruiting challenges, too few accessions, and to cover increased attrition losses in FY2018â¦The ARNG began addressing these issues and challenges in FY 2018 by ramping up the recruiting force, incentives programs, bonuses, and marketing efforts. While these efforts are expected to result in additional accessions in FY 2019, they will not be enough to meet the FY 2019 NDAA authorized End Strength of 343,500. The newly hired force will reach full production levels by end of the FY 2019 in order to meet the required accessions mission and a projected end strength of 336,000 in FY 2020 and continue the projected ramp to an end strength of 338,000 by the end of FY 2024.

Similarly, the Army Reserve FY2020 Military Personnel budget justification document stated:

In FY 2018, the Army Reserve fell short of its end strength objective by 10,689 Soldiers due to a challenging recruiting and retention environmentâ¦Prior to the FY 2020 President's Budget request, the Army Reserve recognized it would not meet its FY 2019 end strength goal of 199,500 and subsequently reduced its goal to a more achievable end strength of 189,250. The Army Reserve continues to set conditions for a successful and productive recruiting and retention environment in support of achieving an end strength of 189,250 by the end of FY 2019 and sustaining that level through FY 2020.

Section 411 of the enacted bill approved end-strengths identical to the Administration request.

References: Previously discussed in CRS Report R45343, FY2019 National Defense Authorization Act: Selected Military Personnel Issues , by Bryce H. P. Mendez et al. and similar reports from earlier years. For more on the Reserve Component see CRS Report RL30802, Reserve Component Personnel Issues: Questions and Answers , by Lawrence Kapp and Barbara Salazar Torreon, and CRS In Focus IF10540, Defense Primer: Reserve Forces , by Lawrence Kapp.

CRS Point of Contact: Lawrence Kapp.

Access to Reproductive Health Services

Background: In general, the Department of Defense (DOD) offers certain reproductive health services in DOD-operated hospitals and clinicsâknown as military treatment facilities (MTFs)âor through civilian health care providers participating in TRICARE. Reproductive health services typically include counseling, therapy, or treatment for male or female conditions affecting "fertility, overall health, and a person's ability to enjoy a sexual relationship."

With regard to contraceptive services, DOD policy requires that all eligible beneficiaries have access to "comprehensive contraceptive counseling and the full range of contraceptive methods." The policy also requires that DOD provide contraceptive services when "feasible and medically appropriate," such as during:

a health care visit before or during deployment; enlisted or officer training; annual well woman exams and reproductive health screenings; physical exams; or when referred after a periodic health assessment.

With regard to fertility services, DOD offers:

diagnostic services (e.g., hormone evaluation and semen analysis); diagnosis and treatment of illness or injury to the male or female reproductive system; care for physically caused erectile dysfunction; genetic testing; certain prescription fertility drugs; and certain assisted reproductive services for "seriously or severely ill/injured" active duty servicemembers.

Active duty military personnel generally incur no out-of-pocket costs for DOD health care services. If a servicemember receives reproductive health services that are not directly provided, referred by a DOD or TRICARE provider, or otherwise covered by DOD, then they may be required to pay for those services. Other DOD beneficiaries may be subject to cost-sharing based on their TRICARE health plan, beneficiary category, and type of medical service received.

Discussion: Currently, DOD offers comprehensive contraceptive counseling and a range of contraceptive methods. However, non-active duty beneficiaries may be subject to certain cost-sharing requirements depending on the type of contraceptive service rendered, the accompanying procedures or follow-up evaluations that may be clinically necessary, or health care provider nonparticipation in the TRICARE network. Other reproductive health services, such as cryopreservation of human gametes (i.e., sperm or eggs), are generally not offered or covered by TRICARE unless narrow criteria are met.

While there are no provisions in the enacted bill relating to access to reproductive health services, the committee report ( S.Rept. 116-48 ) accompanying the Senate bill ( S. 1790 ) includes a similar reporting requirement as House Section 728. The committee report directs DOD to "conduct a study on the incidence of infertility among members of the Armed Forces" and provide a report to the House and Senate armed services committees by June 1, 2020. The study is to include the following elements:

number of servicemembers diagnosed with a common cause of infertility; number of servicemembers whose infertility has no known cause; incidence of miscarriage among female servicemembers; infertility rates of female servicemembers, as compared to their civilian counterparts; demographic information on infertile servicemembers and potential hazardous environmental exposures during service; availability of infertility services for servicemembers who desire such treatment, including waitlist times at MTFs offering reproductive health services; criteria used by the military services to determine service-connection for infertility; and DOD policies for ensuring geographic stability for servicemembers receiving treatment for infertility.

Not adopted were provisions to expand TRICARE coverage of specific reproductive health services to certain eligible beneficiaries.

References: CRS In Focus IF11109, Defense Health Primer: Contraceptive Services , by Bryce H. P. Mendez.

CRS Point of Contact: Bryce H.P. Mendez.

*Administration of the Military Health System

Background: DOD operates a health care delivery system that serves approximately 9.5 million beneficiaries. The Military Health System (MHS) administers the TRICARE program, which offers health care services at military treatment facilities (MTFs) or through participating civilian health care providers. Historically, the military services have administered the MTFs, while the Defense Health Agency (DHA) administered the private sector care program of TRICARE. DHA is a combat support agency that enables the Army, Navy, and Air Force medical services to provide a medically ready force and ready medical force to combatant commands in both peacetime and wartime.

In 2016, Congress found that the organizational structure of the MHS could be streamlined to sustain 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." Section 702 of the FY2017 NDAA ( P.L. 114-328 ) directed significant reform to the MHS and administration of MTFs by October 1, 2018. Reforms include:

transfer of administration and management of MTFs from each respective service surgeon general to the DHA Director; reorganization of DHA's internal structure; and redesignation of the service surgeons general as principal advisors for their respective military service, and as service chief medical advisor to the DHA.

In June 2018, DOD submitted its implementation plan to Congress. The implementation plan details how DOD is to reform the MHS to a "streamlined organizational model that standardizes the delivery of care across the MHS with less overhead, more timely policymaking, and a transparent process for oversight and measurement of performance." Congress later revised the MHS reform mandate by further clarifying certain tasks relating to the transfer of MTFs, the roles and responsibilities of the DHA and the service surgeons general, and by extending the deadline for implementing reform efforts to September 30, 2021. DOD later revised its plan to accelerate certain tasks.

On October 1, 2019, the military services transferred the administration and management of their U.S.-based MTFs to the DHA. The military services are to continue to administer their overseas MTFs until transfer to the DHA in 2020â2021.

Discussion: The enacted bill includes a number of provisions clarifying certain responsibilities for DHA and other medical entities with service-specific responsibilities, such as administering and managing MTFs, providing health service support to combatant commanders, performing medical research, recruiting and retaining medical personnel, and establishing military-civilian partnerships.

Organizational Management . Section 711 of the enacted bill amends 10 U.S.C. Â§1073c to clarify the qualifications of the DHA assistant director and the deputy assistant directors, and allow DOD to reassign certain civil service employees from a military department to a DOD component, or vice-versa. The provision also adds the following to DHA's existing roles and responsibilities:

provision of health care; clinical privileging and quality of care programs; MTF capacities to support clinical currency and readiness standards; and coordination with the military services for joint staffing.

Section 712 of the enacted bill clarifies the roles and responsibilities of the service surgeons general, to include:

support to combatant commanders for operational and deployment requirements; support to DHA by assigning military medical personnel to MTFs; development of combat medical capabilities; and medical readiness of the Armed Forces.

In 2018, Congress directed DOD to consolidate most of its medical research programs under the DHA. While the military services are to retain certain medical research responsibilities, the DHA is to be responsible for coordinating all research, development, test, and evaluation (RDT&E) funds appropriated to the defense health program (DHP), including the congressionally-directed medical research programs (CDMRP). The U.S. Army Medical Research and Materiel Command (USAMRMC) administers the CDMRP and executes a variety of RDT&E funds appropriated to the Department of the Army, DHP, and other DOD-wide operation and maintenance accounts. USAMRMC executes most of the annual DHP RDT&E. In FY2017, USAMRMC executed approximately 76% ($377.5 million) of the total DHP RDT&E funds. As of June 1, 2019, USAMRMC restructured and realigned its responsibilities under two separate DOD entities: the DHA and Army Futures Command. Depending on the research mission (DHP requirements vs. service-specific requirements), USAMRMC resources were also reallocated accordingly.

Section 737 of the enacted bill directs the Secretary of Defense to retain certain manpower and funding resources with USAMRMC. The provision requires USAMRMC manpower and funding to be at a baseline of no less than "the level of such resources as of the date of the enactment of this Act until September 30, 2022." On October 1, 2022, DOD is to: (1) transfer USAMRMC resources programmed to the Army's research, development, test, and evaluation account to the DHP; and (2) maintain USAMRMC as a "Center of Excellence for Biomedical Research, Development and Acquisition Management."

Military Medical Personnel . DOD's budget request for FY2020 includes a proposal to reduce its active duty medical force by 13% (14,707 personnel) in order to maintain a workforce that is "appropriately sized and shaped to meet the National Defense Strategy requirements and allow the MHS to optimize operational training and beneficiary care delivery." Compared to FY2019 levels, the Army would have the largest reduction in medical forces (-16%), followed by the Air Force (-15%), and the Navy (-7%). DOD's initial plan to implement these reductions include: (1) transferring positions (also known as billets) from the MHS to new health service support positions in deployable or warfighting units, military service headquarters, or combatant commands; (2) transferring billets from the MHS to the military departments for repurposing as nonmedical assets; and (3) converting certain military billets to civilian billets.

Section 719 of the enacted bill limits DOD actions to reduce or realign its active duty medical force until certain internal reviews, analyses, measurements, and outreach actions are conducted within 180 days of enactment and at least 90 days after a report to the House and Senate armed services committee on such actions have been provided. The report is to include also the department's plan to reduce or realign its military medical force. In addition, the provision contains certain exceptions that allow DOD to proceed with reducing or realigning certain positions. The exceptions are:

administrative billets assigned to a service medical department that has been vacant since at least October 1, 2018; nonclinical billets that were identified in the President's FY2020 budget submission and not to exceed a total of 1,700; and service medical department billets solely assigned to a headquarters office and not dually assigned to support a deployable medical unit.

Civilian Partnerships . The MHS states that its "success depends on building strong partnerships with the civilian health care sector." As a high-priority initiative, the MHS maintains numerous partnerships with civilian health care organizations, academic institutions, and research entities to enhance or supplement military medical readiness and deliver the health entitlements authorized in chapter 55 of Title 10, U.S. Code. Section 740 of the enacted bill authorizes DOD to conduct a pilot program to improve medical surge capabilities of the National Disaster Medical System and interoperability with certain civilian health care organizations and other federal agencies. If exercised by the Secretary of Defense, pilot program sites are to be located "in the vicinity of major aeromedical and other transport hubs and logistics centers of the Department of Defense."

Section 751 of the enacted bill directs DOD to study existing military-civilian integrated health delivery systems and the activities conducted that promote value-based care, measurable health outcomes, patient safety, access to care, critical wartime readiness skills, and cost. The provision requires DOD to submit a report to the House and Senate armed services committees, within 180 days of enactment, on the study's findings and a plan for further development of military-civilian health partnerships.

References: Previously discussed in CRS Report R45343, FY2019 National Defense Authorization Act: Selected Military Personnel Issues , by Bryce H. P. Mendez et al.; CRS In Focus IF11273, Military Health System Reform , by Bryce H. P. Mendez; CRS Report WPD00010, Military Health System Reform , by Bryce H. P. Mendez; CRS Insight IN11115, DOD's Proposal to Reduce Military Medical End Strength , by Bryce H. P. Mendez; and CRS Report R45399, Military Medical Care: Frequently Asked Questions , by Bryce H. P. Mendez.

CRS Point of Contact: Bryce H.P. Mendez.

Boards of Correction of Military Records & Discharge Review Board Matters

Background: The characterization of service when a servicemember is discharged, as well as awards received and length of service, may affect eligibility for certain veterans' benefits, employment opportunities, and some government programs. If a servicemember believes a service record's information is incorrect or the servicemember alleges an injustice, two statutorily established entities exist for addressing these matters: a board of correction of military records (BCMR) and a discharge review board (DRB). Each armed service has a BCMR and DRB.

A BCMR provides an administrative process for military personnel to request record corrections and payment of monetary claims associated with a record correction. An applicant to a BCMR must request a record correction within three years of discovering an alleged error or injustice.

A DRB provides an administrative process for former servicemembers to request changes to the reason for discharge or the characterization of service when discharged, but any monetary claim associated with a change must be presented to a BCMR. An application for review must be made to A DRB within 15 years of the discharge. A subsequent change in service policy has no effect on a preceding discharge unless the new policy is retroactive or materially different in a way that would substantially enhance a servicemember's rights and likely invalidate the reason for discharge or characterization of service.

Statute requires a DRB to give liberal consideration to an application in which post-traumatic stress syndrome (PTSD), traumatic brain injury (TBI), or mental health conditions typically associated with combat operations may have been a factor in the discharge decision. The liberal consideration requirement equally applies to discharge reviews in which sexual assault or harassment caused PTSD, TBI, or mental health conditions that may have been a factor in the basis for the discharge decision.

Discussion: The enacted bill includes 6 out of 13 proposed provisions discussed above: three addressing the oversight and operations of a DRB and BCMR; two addressing PTSD, TBI, or other trauma mental health conditions; and one addressing separations for homosexual conduct.

Oversight and Operations. Section 522 of the enacted bill reduces the number of required DRB members from five to three. If overall service review agency personnel requirements remain unchanged, reducing the number of DRB members and reallocating the previously required fourth and fifth members to new DRBs could presumably increase the number of DRBs available. Section 523 of the enacted bill creates a new entity, and capacity, for discharge review appeals and new reporting requirements for discharge review appeals data. The provision includes a Senate amendment that requires the Secretary of Defense to establish the appeals process based on certain parameters. Section 524 of the enacted bill amends 10 U.S.C. Â§1559 to extend previously authorized restrictions on reducing personnel levels at service review agencies until December 31, 2025. The provision also requires each Service Secretary to report to Congress his or her plan to reduce application backlogs and maintain personnel resources at a review agency.

Post-Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), or Other Trauma Mental Health Conditions. Section 521 of the enacted bill requires a DRB or BCMR to obtain a medical opinion from specified health care professionals on two types of cases. For cases based in whole or in part on PTSD or TBI related to combat, a BCMR or DRB is required to seek advice and counsel from a psychiatrist, psychologist, or social worker with training in PTSD, TBI, or other trauma treatment. For cases based in whole or in part on PTSD or TBI related to sexual trauma, intimate partner violence, or spousal abuse, a DRB or BCMR is required to seek advice and counsel from a psychiatrist, psychologist, or social worker with training PTSD, TBI, or other trauma treatment for these types of cases. Section 525 of the enacted bill amends statutorily mandated training for BCMR and DRB members to include curricula on sexual trauma, intimate partner violence, spousal abuse, and the various responses to these events.

Separations for Homosexual Conduct. Section 527 of the enacted bill removes the presumption of administrative regularity that a previous discharge for homosexual conduct was correct and proper. Eliminating this presumption relieves the applicant of the burden to show by substantial evidence that a discharge was not correct or not proper. This provision allows a DRB to review and change, upon request and if found appropriate, the characterization of service for a servicemember originally discharged based on sexual orientation. If an application for review of a discharge based on sexual orientation is denied, the provision establishes a discretionary appeal process consistent with existing DRB procedures.

References: CRS Report R43928, Veterans' Benefits: The Impact of Military Discharges on Basic Eligibility , by Sidath Viranga Panangala .

CRS Point of Contact: Alan Ott.

*Defense Commissary System

Background: Over the past several decades, Congress has been concerned with improving the Defense Commissary Agency (DeCA) system, mandating 12 reports or studies between 1989 and 2015 that considered the idea of consolidating the three military exchanges and the commissary agency. Recent reform proposals have sought to reduce DeCA's reliance on appropriated funds without compromising patrons' commissary benefits or reducing the revenue generated by DOD's military exchanges, which are nonappropriated fund (NAF) entities that fund morale, welfare, and recreation (MWR) facilities on military installations. However, 10 U.S.C. Â§2482 prohibits the Defense Department from undertaking consolidation without new legislation. Section 627 of the FY2019 NDAA ( P.L. 115-232 ) required the Secretary of Defense to conduct a study to determine the feasibility of consolidating commissaries and military exchange entities into a single defense resale system.

The study, The Department of Defense Report on the Development of a Single Defense Resale System , April 29, 2019, concluded that the benefits of consolidating DeCA and the military exchanges into one defense resale entity far outweighed the costs. This DOD study "projected net savings of approximately $700Mâ$1.3B of combined appropriated and nonappropriated funding over a five-year span, and recurring annual savings between $400M-$700M thereafter." Opponents of consolidation maintain that DOD is moving forward without considering the risk that consolidation could cost more than anticipated and fail to result in projected savings in operational costs. This could result in higher prices for patrons and curtail support for MWR programs. In the FY2019 NDAA, Congress authorized $1.3 billion for DeCA to operate 236 commissary stores on military installations worldwide, employing a workforce of over 12,500 civilian full-time equivalents (FTE).

Discussion: Section 633 of the enacted bill adopts House Section 631. The enacted provision requires the Government Accountability Office (GAO) to review DOD's business case analysis (pricing, sales, measuring customer savings, timetable for consolidation, etc.) before merging the various resale entities into a single entity. Elements of the GAO report is to include data on the financial viability of a single defense resale entity and the ability of commissaries and exchanges to support MWR programs after consolidation. The enacted provision directs that GAO provide an interim report no later than March 1, 2020, and a final report no later than June 1, 2020. The Senate-passed bill had no similar provision.

Section 632 of the House-passed bill would have required a report to Congress by the Defense Secretary regarding the management practices of military commissaries and exchanges no later than 180 days after enactment. This report would have included "a cost-benefit analysis with the goals of reducing the costs of operating military commissaries and exchanges by $2,000,000,000 during fiscal years 2020 through 2024" while not raising costs for patrons. The Senate-passed bill had no similar provision. Section 632 was not adopted in the enacted bill.

Section 641 of the enacted bill adopts House Section 634. The enacted provision amends section 1065 of Title 10, U.S. Code, to extend MWR privileges to Foreign Service Officers on mandatory home leave by permitting the use of military lodging effective January 1, 2020. The Senate-passed bill had no similar provision.

Section 631 of the enacted bill adopts Senate Section 641. The enacted provision requires the Under Secretary of Defense for Personnel and Readiness (USD[P&R]) to coordinate with the DOD Chief Management Officer to maintain oversight of the business transformation efforts. This provision also requires a DOD executive resale board to advise the USD(P&R) on the implementation of sustainable, complementary operations of the defense commissary system and the exchange stores system. The enacted provision also requires DOD to "field new technologies and best business practices for information technology for the defense resale system" and "implement cutting-edge marketing and advertising opportunities." This provision also amends Section 2483(b) of Title 10, U.S. Code, to allow DOD to include advertising commissary sales on materials available within commissary stores and at other on-base locations in the operating expenses of defense commissaries.

Section 642 of the Senate-passed bill would have amended section 2483(c) of Title 10, U.S. Code, to authorize fees collected by DeCA on services provided to secondary patron groups (like DOD contactors) to offset commissary operating costs. The enacted bill did not adopt this provision.

Section 632 of the enacted bill adopts Senate Section 643. The enacted provision requires commissary stores to procure locally sourced products such as dairy products, fruits, and vegetables as available while maintaining mandated patron savings. The House-passed bill had no similar provision.

References: CRS Report R45343, FY2019 National Defense Authorization Act: Selected Military Personnel Issues , section on "Defense Commissary System" and similar reports from earlier years; and CRS In Focus IF11089, Defense Primer: Military Commissaries and Exchanges , by Kristy N. Kamarck and Barbara Salazar Torreon.

CRS Point of Contact: Barbara Salazar Torreon.

Diversity and Inclusion

Background: Throughout the history of the Armed Forces, Congress has used its constitutional authority to establish criteria and standards for individuals to be recruited, advance through promotion, and be separated or retired from military service. DOD and Congress have established some of these criteria through policy and law based on demographic characteristics such as race, sex, and sexual orientation. In the past few decades there have been rapid changes to certain laws and policies regarding diversity, inclusion, and equal opportunity â in particular authorizing women to serve in combat arms occupational specialties and the inclusion of lesbian, gay, bisexual, and transgender (LGBT) individuals. Some of these changes remain contentious and face continuing legal challenges.

Discussion: In the FY2009 NDAA ( P.L. 110-417 ), Congress authorized the creation of the Military Leadership Diversity Commission (MLDC). Following that effort, in 2012, DOD developed and issued a five-year Diversity and Inclusion Strategic Plan . In 2013, as part of the FY2013 NDAA ( P.L. 112-239 ), Congress required DOD to develop and implement a plan regarding diversity in military leadership. The House bill includes several provisions that would address diversity and inclusion, while the Senate bill has none. Section 526 of the House bill would require DOD to design and implement a five-year strategic plan that is consistent with the 2018 National Military Strategy beginning on January 1, 2020. Section 529 of the enacted bill adopts the House provision and requires DOD to implement the new strategic plan within one year of enactment.

Existing law requires DOD to conduct surveys on racial and gender issues. Section 594 of the House bill would require that workplace and equal opportunity, command climate, and workplace and gender relations (WGR) surveys ask respondents whether they have ever experienced supremacist activity, extremist activity, racism, or anti-Semitism.Â A modified provision was adopted in the enacted bill, which requires questions be included in appropriate surveys on whether respondents experienced, witnessed, or reported extremist activity. The enacted provision does not define extremist activity or specify the frequency for such survey questions.

DOD has recently initiated a number of shifts in policy with regard to individuals who identify as transgender. Current policy, which went into effect on April 12, 2019, disqualifies any individual from appointment, enlistment, or induction into the service if they have a history of cross-sex hormone therapy or sex reassignment or genital reconstruction surgery. The policy also disqualifies individuals with a history of gender dysphoria unless they were stable in their biological sexÂ for 36 consecutive months prior to applying for admission into the Armed Forces. However, the policy allows for transgender persons to "seek waivers or exceptions to these or any other standards, requirements, or policies on the same terms as any other person." Those individuals in the service who initially seek military medical care after the effective date of the policy may receive counseling for gender dysphoria and may be retained without a waiver if (1) a military medical provider has determined that gender transitionÂ is not medically necessary to protect the health of the individual; and (2) the member is willing and able to adhere to all applicable standards associated with his or her biological sex. Section 597 of the House bill would have required DOD to submit an annual report on the number of servicemembers who sought a waiver prior to accession or while in service on the basis of a transgender-related condition. Section 596 of the enacted bill adopts the House provision and includes clarifying language as to how data elements should be reported. It also requires DOD to protect personally identifiable and health information of members. This reporting requirement expires in 2023. In addition, the conference report accompanying the enacted bill states,

In determining whether an applicant with a disqualifying diagnosis of gender dysphoria or history of gender transition treatment or surgery merits a waiver to permit his or her service in the military, the conferees encourage Service-designated waiver authorities to consider such a waiver under the same circumstances as they would for an applicant who is not transgender, but has been diagnosed with analogous conditions or received analogous treatments, presuming the individual meets all other standards for accession.

Entry into the Armed Forces by enlistment or appointment (officers) requires applicants to meet certain physical, medical, mental, and moral standards. While some of these standards are specified in law (e.g., 10 U.S.C. Â§504), DOD and the Services generally establish these standards through policy and regulation. The Services may require additional qualification standards for entry into certain military occupational specialties (e.g., pilots, special operations forces). By law, qualification standards for military career designators are required to be gender-neutral. Section 530B would require that service entry standards account only for the ability of an individual to meet gender-neutral occupational standards and could not include any criteria relating to the "race, color, national origin, religion, or sex (including gender identity or sexual orientation) of an individual." This provision was not adopted.

Women were historically prohibited from serving in certain combat roles by law and policy until December 3, 2015, when the Secretary of Defense opened all combat roles to women who can meet gender-neutral standards. Entry level and occupational-specific training has been gender integrated across the military services, with the exception of Marine Corps basic training (boot camp). In 2019, the Marines graduated the first gender-integrated boot camp class at Marine Recruit Depot Parris Island in South Carolina. In a statement to Congress, Lieutenant General David Berger noted that there were no significant variations in the performance of gender-integrated units relative to gender-segregated units. Section 561 of the House bill would prohibit gender segregated Marine Corps recruit training at Marine Corps Recruit Depot Parris Island no later than five years after the date of enactment, and at Marine Corps Recruit Depot San Diego no later than eight years after the date of enactment. Section 565 of the enacted bill adopts this provision.

In addition, section 1099I would require the Armed Forces components to share lessons learned and best practices on the progress of their gender integration implementation plans as recommended by the Defense Advisory Committee on Women in the Services (DACOWITS). Finally, section 1099J would require the military departments to examine successful strategies for recruitment and retention of women in foreign militaries, as recommended by DACOWITS. The final bill did not adopt either of these provisions (sections 1099I and 1099J).

References: CRS Report R44321, Diversity, Inclusion, and Equal Opportunity in the Armed Services: Background and Issues for Congress , by Kristy N. Kamarck , and CRS Insight IN11086, Military Personnel and Extremism: Law, Policy, and Considerations for Congress , by Kristy N. Kamarck. CRS In Focus IF11147, Defense Primer: Active Duty Enlisted Recruiting , by Lawrence Kapp.

CRS Point s of Contact : Kristy N. Kamarck.

*Domestic Violence and Child Abuse

Background : The Family Advocacy Program (FAP) is the congressionally-mandated program within DOD devoted to "clinical assessment, supportive services, and treatment in response to domestic abuse and child abuse and neglect in military families." As required by law, the FAP provides an annual report to Congress on child abuse and neglect and domestic abuse in military families. Approximately half of military servicemembers are married and there are approximately 1.6 million dependent children across the active and reserve components. According to DOD statistics, in FY2018, the rate of reported child abuse or neglect in military homes was 13.9 per 1,000 children, an increase from the previous year's rate of 13.7 per 1,000 children. There were 26 child abuse-related fatalities, relative to 17 fatalities in FY2017. The rate of reported spousal abuse in FY2018 was 24.3 per 1,000 military couples, a decrease from the FY2017 rate of 24.5 per 1,000 couples â with 13 spouse abuse fatalities recorded. Since FY2006, DOD has been collecting data on unmarried intimate partner abuse. In FY2018, there were 1,024 incidents of intimate partner abuse that met criteria involving 822 victims and 2 fatalities.

Discussion: A special victim counsel (SVC) is a judge advocate or civilian attorney who satisfies special training requirements and provides legal assistance to victims of sexual assault throughout the military justice process. Section 542 of the House bill and Section 541 of the Senate bill would expand SVC staffing and authorize SVC services for military-connected victims of domestic violence. The Administration has opposed this measure, stating that it would "decrease access for sexual assault victims to Special Victims' Counsels (SVCs)/Victims' Legal Counsels (VLCs), exacerbate already high caseloads for SVC/VLCs, and impose an unfunded mandate." The enacted bill adopts the Senate provision with an amendment that would require counsel to receive specialized domestic violence legal training, serve for a minimum of two years, and be supported by sufficiently trained paralegals. DOD is required to provide a report on planned implementation no later than 120 days after enactment.

Transitional compensation is a monetary benefit authorized under 10 U.S.C. Â§1059 for dependent family members of servicemembers or of former servicemembers who are separated from the military due to dependent-abuse offenses. One of the motivating arguments for establishing the transitional compensation benefit is that it provides a measure of financial security to spouses or former spouses. Eligible recipients receive monthly payments for no less than 12 months and no more than 36 months at the same rate as dependency and indemnity compensation (DIC). While in receipt of transitional compensation, dependents are also entitled to military commissary and exchange benefits, and may receive dental and medical care, including mental health services, through military facilities as TRICARE beneficiaries. Section 621 of the House bill and Section 601 of the Senate bill are similar provisions that would expand the authority of the Secretary concerned to grant exceptional transitional compensation in an expedited fashion. This would allow dependents who are victims of abuse to start receiving compensation while the offending servicemember is still on active duty and as early as the date that an administrative separation is initiated by a commander. In addition, the House Report directs DOD to provide a comprehensive review and assessment of the transitional compensation program. Section 621 of the enacted bill adopts this provision.

When a servicemember has allegedly committed an act of domestic violence, a commander can issue a military protective order (MPO) to a servicemember that prohibits contact between the alleged offender and the domestic violence victim. A servicemember must obey an MPO at all times, whether inside or outside a military installation, or may be subject to court martial or other punitive measures. By law, a military installation commander is required to notify civilian authorities when an MPO is issued, changed, and terminated with respect to individuals who live outside of the installation. House Section 543 would amend 10 U.S.C. Â§1567a to require notification of civilian authorities no later than seven days after issuing an order, regardless of whether the member resides on the installation. The provision would also require commanders to notify the receiving command in the case of a transfer of an individual who has been issued an MPO. DOD would also be required to track and report the number of orders reported to civilian authorities annually. Section 543 of the enacted bill adopts the House provision and requires annual reports through 2025.

While MPOs are typically not enforceable by civilian authorities, a civil protection order (CPO), by law, has full force and effect on military installations. House Section 544 and Senate Section 556 would require DOD to establish policies and procedures for registering CPOs with military installation authorities. Section 550A of the enacted bill adopts this provision.

House Section 550F would codify an existing DOD policy to report to the National Instant Criminal Background Check System (NICS) servicemembers who are prohibited from purchasing firearms due to a domestic violence conviction in a military court. This section would also require DOD to study the feasibility of creating a database of military protective orders issued in response to domestic violence and the feasibility for reporting such MPOs to NICS. Section 550E of the enacted bill adopts the House provision, but removes the section that would amend the National Instant Criminal Background Check System Improvement Amendments Act of 2007 (34 U.S.C. Â§40911(b)) with respect to DOD reporting. It also expands the matters to be explored in the feasibility report.

References: For information on Special Victims' Counsel and Military Protective Orders, see CRS Report R44944, Military Sexual Assault: A Framework for Congressional Oversight , by Kristy N. Kamarck and Barbara Salazar Torreon.

CRS Point of Contact : Kristy N. Kamarck and Alan Ott.

*Medal of Honor

Background: The Medal of Honor (MoH) is the highest award for valor "above and beyond the call of duty" that may be bestowed on a U.S. servicemember. 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. Reluctance on the part of reviewing officials to award the MoH retroactively or to upgrade other awards is generally based on concern for maintaining the integrity of the award and the awards process. This reluctance has led many observers 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. Systematic reviews began in the 1990s for World War II records when African-American units remained segregated and whose valorous unit and individuals' actions, along with others, may have been overlooked. That effort resulted in more than 100 soldiers receiving the MoH, the majority of which were posthumously awarded. 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. Subsequently, the MoH was awarded to the first living recipient from the Iraq War, Army Staff Sgt. David Bellavia, on June 25, 2019.

Discussion: Section 583 of the House-passed bill would require DOD to review the service records of certain servicemembers who fought in World War I (WWI) to determine whether they should be posthumously awarded the MoH. Specifically, the provision would require record reviews of certain African-American, Asian-American, Hispanic-American, Jewish-American, and Native-American veterans who were recommended for the MoH or who were the recipients of the Distinguished Service Cross, Navy Cross, or French Croix de Guerre with Palm. Four soldiers, one Hispanic-American (Private David Barkley Cantu) and three Jewish-American veterans (First Sergeant Sydney Gumpertz, First Sergeant Benjamin Kaufman, and Sergeant William Sawelson), were awarded Medals of Honor at the conclusion of WWI.

In 1991, President George H.W. Bush awarded the MoH posthumously to Corporal Freddie Stowers, who became the first African-American recipient from WWI after the Army's review of his military records. Later, the FY2015 NDAA ( P.L. 113-291 ) authorized posthumous award of the MoH to Private Henry Johnson, an African-American veteran, and Sgt. William Shemin, a Jewish-American veteran, for valor during WWI. Proponents of the Pentagon review in Section 583 point to similar reviews for minority groups who served in other conflicts from World War II to the present. Some were later awarded the MoH, the majority of which were posthumously awarded. According to the Congressional Budget Office (CBO), "a remote possibility exists" that one of the veterans honored under Section 583 could have a surviving widow who could potentially receive expanded health benefits or increased survivor benefits. Section 584 of the enacted bill adopts this section. If a Secretary concerned determines, based upon the review under that the award of the MoH to a certain World War I veteran is warranted, such Secretary shall submit to the President a recommendation that the President award the MoH to that veteran. This review shall terminate not later than five years after the date of the enactment of this Act.

Section 584 of the House-passed bill would have waived the time limitation and authorize the posthumous award of the MoH to Army Sergeant First Class (SFC) Alwyn Cashe for acts of valor in Samarra, Iraq, during Operation Iraqi Freedom. SFC Cashe led recovery efforts and refused medical treatment until his men were evacuated to safety after an improvised explosive device struck their vehicle and caught fire. Cashe's actions saved the lives of six of his soldiers. He later succumbed to his wounds. This provision was not adopted in the enacted bill.

Section 1099L of the House-passed bill would have allowed the nation to honor the last surviving MoH recipient of WWII by permitting the individual to lie in honor in the Capitol rotunda upon death. This provision was not adopted in the enacted bill.

Section 585 of the Senate-passed bill would have waived the time limitation in section 7274 of title 10, United States Code, and authorize the award of the MoH to Army Major John J. Duffy for acts of valor in Vietnam on April 14 and 15, 1972, for which he was previously awarded the Distinguished Service Cross. Section 583 in the enacted bill adopts this section waiving the time limitation so that the President may award the Medal of Honor under section 7271 of title 10 U.S. Code to John J. Duffy for the acts of valor in Vietnam.

References: Previously discussed in the "Medal of Honor" section of CRS Report R44577, FY2017 National Defense Authorization Act: Selected Military Personnel Issues , by Kristy N. Kamarck et al. and similar reports from earlier years; CRS Report 95-519, Medal of Honor: History and Issues , by Barbara Salazar Torreon; and the Congressional Budget Office, Cost Estimates for H.R. 2500 , National Defense Authorization Act for Fiscal Year 2020, June 19, 2019.

CRS Point of Contact: Barbara Salazar Torreon.

Military Family Issues

Background: Approximately 2.1 million members of the Armed Forces across the active and reserve components have an additional 2.7 million "dependent" family members (spouses and/or children). Slightly over 40% of servicemembers have children and approximately 50% are married. The military provides a number of quality of life programs and services for military families as part of a servicemember's total compensation and benefit package. These include family life, career, and financial counseling, childcare services and support, and other MWR activities. The general motivation for providing these benefits is to improve the recruitment, retention, and readiness of military servicemembers.

Discussion: Spouse Employment and Education. Section 1784 of Title 10, U.S. Code , requires the President to order such measures as necessary to increase employment opportunities for military spouses. Active duty servicemembers conduct frequent moves to military installations across the globe. For working spouses, this sometimes requires them to establish employment in a new state that has different occupational licensing requirements than their previous state. The FY2018 NDAA ( P.L. 115-91 Â§556) authorized the reimbursement of certain relicensing costs up to $500 for military spouses following a permanent change of station from one state to another with an end date of December 31, 2022. Section 628 of the House bill would have raised the maximum reimbursement to $1,000 and would require the Secretary of Defense to perform an analysis of whether that amount is sufficient to cover average costs. Section 576 of the Senate bill would not have raised the maximum reimbursement amount; however, it would extend the authority to December 31, 2024. Section 577 of the enacted bill adopts the House provision and extends the authorization for this benefit to December 31, 2024.

Both bills also had similar provisions (House Section 524 and Senate Section 577) that sought to improve interstate license portability through DOD funding support for the development of interstate compacts. Both bills would have capped funding support for each compact at $1 million, while the Senate bill would have capped the total program funding at $4 million. Section 575 of the enacted bill adopts the House provision with an amendment that would require the Secretary of Defense to enter into a cooperative agreement with the Council of State Governments to assist with the funding and development.

DOD's My Career Advancement Account Scholarship Program (MyCAA), launched in 2007, currently provides eligible military spouses up to $4,000 in financial assistance to pursue a license, certification, or associate's degree in a portable career field. Eligible spouses are those married to military servicemembers on active duty in pay grades E-1 to E-5, W-1 to W-2 and O-1 to O-2. During the pilot phase of the program, the benefit was offered to all spouses and funds were also available for a broader range of degrees and certifications, including bachelor's and advanced degrees. However, due to concerns about rising costs and enrollment requests, DOD has since reduced the maximum benefit amount (from $6,000 to $4000), limited eligibility to spouses of junior servicemembers, and restricted the types of degrees and career fields that were eligible for funding.

Section 623 of the House bill would have allowed continued eligibility for spouses when the member is promoted above those pay grades after the spouse has begun a course of instruction. Section 580B of the House bill would have expanded the qualifying degrees and certifications to include non-portable career fields and occupations. Finally, Section 580C would have expanded the eligible population to all enlisted spouses and would also have provided eligibility for Coast Guard spouses to participate in the DOD program. The enacted bill adopts all three of these House provisions, expanding eligibility for more military spouses and a broader range of certifications.

Parents and Children. DOD operates the largest employer-sponsored childcare program in the United States, serving approximately 200,000 children of uniformed servicemembers and DOD civilians, and employing over 23,000 childcare workers. DOD offers subsidized programs on and off military installations for children from birth through 12 years, including care on a full-day, part-day, short-term, or intermittent basis. Title 10 U.S.C. Â§1798 authorizes fee assistance for civilian childcare services. Section 625 of the House bill would have specifically authorized fee assistance for survivors of members of the Armed Forces who die "in line of duty while on active duty, active duty for training, or inactive duty for training.'' DOD policy currently authorizes childcare for "surviving spouses of military members who died from a combat related incident." Section 624 of the enacted bill amends the House provision to only authorize fee assistance for survivors of those who die "in combat-related incidents in the line of duty."

Section 629 of the House bill and Section 578 of the Senate bill would have expanded and attempted to clarify hiring authorities for military childcare workers. The House provision would also have required an assessment and report from DOD on the adequacy of the maximum fee assistance subsidy, the accessibility of childcare and spouse employment websites, and the capacity needs of installation-based childcare facilities. Finally, the same section sought to improve portability of background checks for childcare workers. It is common for military spouses to be employed as childcare workers, and frequent moves may require them to reapply and resubmit background check material at a new facility. Section 580 of the enacted bill adopts the House provision and includes language clarifying the direct hire authority for DOD childcare development centers to include family childcare coordinator services and school age childcare coordinator services.

References: CRS Report R45288, Military Child Development Program: Background and Issues , by Kristy N. Kamarck.

CRS Points of Contact: Kristy N. Kamarck.

Military Medical Malpractice

Background: DOD employs physicians and other medical personnel to deliver health care services to servicemembers in military treatment facilities (MTFs). Occasionally, however, patient safety events do occur and providers commit medical malpractice by rendering health care in a negligent fashion, resulting in the servicemember's injury or death. In the civilian health care market, a victim of medical malpractice may potentially obtain recourse by pursuing litigation against the negligent provider and/or his employer. A servicemember injured as a result of malpractice committed by an MTF health care provider, however, may encounter significant obstacles if attempting to sue the United States.

In general, the Federal Tort Claims Act (FTCA) permits private parties to pursue certain tort claims (e.g., medical malpractice) against the United States. However, in 1950, the U.S. Supreme Court in the case of Feres v. United States recognized an implicit exception to the FTCAâthat the federal government is immunized from liability "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." This exception to tort liability is known as the Feres doctrine. Many lower federal courts have concluded that Feres generally prohibits military servicemembers from asserting malpractice claims against the United States based on the negligent actions of health care providers employed by the military.

Over the past decade, Congress has held multiple hearings to assess whether to modify the Feres doctrine to allow servicemembers to pursue medical malpractice litigation against the United States. Congress has also considered several proposals to amend the FTCA to allow these tort claims.

Discussion: The enacted bill does not abrogate the Feres doctrine, nor does it amend the FTCA to provide servicemembers the ability to litigate certain medical malpractice claims against the United States. Instead, enacted provisions focus on establishing an administrative claims process to compensate injured servicemembers and on conducting oversight of the Defense Department's clinical quality assurance program.

Section 731 of the enacted bill authorizes the Secretary of Defense to "allow, settle, and pay a claim against the United States for personal injury or death incident to the service of a member of the uniformed services that was caused by the medical malpractice of the Department of Defense health care provider." Under the provision, the Defense Secretary may establish an administrative claims process for servicemembers who have been injured or died as a result of medical malpractice committed by an MTF provider.

Only an injured servicemember, or an authorized representative of a deceased or incapacitated servicemember, may file a claim within two years after a malpractice incident (three years if filed in calendar year 2020). For a substantiated claim, DOD may issue financial compensation, up to $100,000. If referred by the Defense Secretary, the Secretary of the Treasury may issue additional compensation in excess of $100,000. Within 180 days after enactment, the Defense Secretary is required to brief the House and Senate armed services committees on the status of developing and implementing the regulations for this authority.

Typically, DOD conducts prospective, ongoing, and retrospective monitoring and assessment of its health care services through its Medical Quality Assurance (MQA) programs and clinical quality management activities. The Defense Health Agency and the Service medical departments administer these programs and activities, which are intended to "ensure quality in healthcare throughout the MHS." Section 747 of the enacted bill directs GAO to assess the effectiveness of DOD's quality assurance program, including the use and monitoring of the National Practitioner Data Bank when hiring, retaining, and documenting adverse actions taken against DOD health care providers. GAO is to report their findings to the House and Senate armed services committees no later than January 1, 2021.

References: CRS In Focus IF11102, Military Medical Malpractice and the Feres Doctrine , by Bryce H. P. Mendez and Kevin M. Lewis; and CRS Legal Sidebar LSB10305, The Feres Doctrine: Congress, the Courts, and Military Servicemember Lawsuits Against the United States , by Kevin M. Lewis.

CRS Point of Contact: Bryce H.P. Mendez.

*Military Pay Raise

Background: Congress has a long-standing congressional interest in military pay raises, as they relate to the overall cost of military personnel and to recruitment and retention of high-quality personnel to serve in the all-volunteer military. Section 1009 of Title 37, U.S. Code, codifies the 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 2020 will be 3.1% 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. Â§1009. Increases in basic pay are typically effective at the start of the calendar year, rather than the fiscal year.

The FY2020 President's Budget requested a 3.1% military pay raise, equal to the statutory formula.

Discussion: The House bill would have included two provisions that would address the military pay raise. Section 606 would have directed a 3.1% increase in basic pay. Section 607 would have directed that the statutory formula of 37 U.S.C. Â§1009 go into effect, also resulting in a 3.1% increase in basic pay, even if the President were to specify an alternate adjustment. The Senate bill did not contain a provision specifying an increase in basic pay; it would have left the 3.1% automatic adjustment provided by 37 U.S.C. Â§1009 in place. Section 609 of P.L. 116-92 specified a 3.1% increase in basic pay.

References: For an explanation of the pay raise process and historical increases, see CRS In Focus IF10260, Defense Primer: Military Pay Raise , by Lawrence Kapp. Previously discussed in CRS Report R45343, FY2019 National Defense Authorization Act: Selected Military Personnel Issues , by Bryce H. P. Mendez et al. and similar reports from earlier years.

CRS Point of Contact: Lawrence Kapp.

Military Retirement and Survivor Benefits

Background: The military retirement system is a funded, noncontributory system that provides a monthly annuity after 20 qualifying years of service, or upon qualifying for a disability retirement. As of January 1, 2018, those joining the military and those who opted into the Blended Retirement System also receive a defined contribution from the federal government into the Thrift Savings Plan (TSP). Military retirees and their dependents are also eligible for other DOD benefits, including commissary and exchange shopping privileges, medical benefits, and space-available travel on military aircraft. Surviving spouses and other eligible beneficiaries may be eligible to receive a portion of the servicemember's retired pay after the member's death in retirement (if enrolled) or while on active duty (automatic eligibility). This benefit is called the Survivor Benefit Plan (SBP). In addition, military retirees and their dependents may be eligible for benefits from the VA, including Dependency and Indemnity Compensation (DIC), a monthly payment to beneficiaries whose spouse's death was related to a service-connected injury or condition.

Discussion: Military retirees are paid from the Military Retirement Fund (MRF). Under the accrual accounting system, the DOD budget for each fiscal year includes a contribution to the MRF as a percentage of basic pay in the amount needed to cover future retirement costs. This percentageâcalled the normal cost percentage (NCP) âis determined by an independent, presidentially appointed, DOD Retirement Board of Actuaries. Estimated future retirement costs are modeled based on the past rates at which active duty military personnel stayed in the service until retirement and on assumptions regarding the overall U.S. economy, including interest rates, inflation rates, and military pay levels.

Currently, the DOD Actuary calculates separate NCPs for the active and reserve components; however, by law the Actuary applies a single NCP across all of the military services. The conference report ( H.Rept. 115-404 ) accompanying FY2018 NDAA ( P.L. 115-91 ) contained a provision asking the GAO to evaluate whether the current method used to calculate DOD retirement contributions reflects estimated service retirement costs, and what effects, if any may result from calculating a separate NCP for each of the Services. The GAO's December 2018 report found that, due to differing continuation rates among the Services, "the mandated single, aggregate contribution rate does not reflect service specific retirement costs." In particular, the analysis found that the probability of reaching 20 years of service was more than 3 times higher for the Air Force than the Marine Corps.

Section 631 of the Senate bill would have changed how military retirement contributions are calculated, by requiring separate NCPs for each of the Services and components. Some analysts who have studied the issue have argued that this change would improve resource allocation efficiency, manpower decision-making, and accuracy in budget estimates at the service level. On the other hand, the GAO report notes that military service officials stated that their "workforce decision making processes would not change." Section 655 of the enacted bill does not change the funding process, but requires the Secretary of Defense to deliver an implementation plan to the House and Senate armed services committees by April 1, 2020. DOD's plan would assume that the change in funding process would commence in FY2025.

Following the death of a servicemember, certain beneficiaries may be eligible for survivor benefits from both DOD (SBP) and the VA (DIC). However, by law, surviving spouses who receive both annuities must have their SBP payments reduced by the amount of DIC they receive. This offset has sometimes been referred to as aÂ widows' tax . The FY2018 NDAA ( P.L. 115-91 ) permanently authorized a payment called the called the Special Survivor Indemnity Allowance (SSIA) to such surviving spouses, to offset that reduction. The SSIA payment is adjusted annually to account for cost-of-living increases. In the past, to avoid the offset, some survivors have used the authority under 10 U.S.C. Â§1448(d)(2) to transfer the SBP benefit to dependent children. Section 630A of the House bill would have repealed the offset as well as the authority to provide the annuity to dependent children. Surviving spouses who had transferred the benefit would not have been able to have their eligibility for the benefit restored. Retroactive payments would not be authorized under this provision. SBP is also paid from the MRF. CBO estimates that the repeal would increase federal spending by $5.7 billion over a period of 10 years. Approximately 65,000 surviving beneficiaries are eligible to receive both SBP and DIC. Section 622 of the enacted bill phases out the requirement for an SBP-DIC offset over a period of three years, and repeals the optional SBP annuity for dependent children.

References: CRS Report RL34751, Military Retirement: Background and Recent Developments , by Kristy N. Kamarck . CRS Report R45325, Military Survivor Benefit Plan: Background and Issues for Congress , by Kristy N. Kamarck and Barbara Salazar Torreon , CRS Insight IN11112, The Kiddie Tax and Military Survivors' Benefits , by Sean Lowry and Kristy N. Kamarck , CRS Report R40757, Veterans' Benefits: Dependency and Indemnity Compensation (DIC) for Survivors , by Scott D. Szymendera. CRS Legal Sidebar LSB10316, FY2020 NDAA Analysis: Elimination of Benefits Offset for Surviving Spouses and Related Legal Issues , by Mainon A. Schwartz.

CRS Point of Contact : Kristy N. Kamarck.

*Military Sexual Assault and Sexual Harassment

Background: Over the past decade, the issues of sexual assault and sexual harassment in the military have generated sustained congressional and media attention. Congress has required additional study, data collection, and reporting to determine the scope of the issue, expand protections and support services for victims, make substantial changes to the military justice system, and take other actions to enhance sexual assault prevention and response. Sexual assault and related sex offenses are crimes under the Uniform Code of Military Justice (UCMJ) and are prosecutable by court-martial. DOD's Sexual Assault Prevention and Response Office (SAPRO) oversees sexual assault policy and produces an annual report on sexual assault estimated prevalence rates and actual reporting. In FY2018, estimated sexual assault prevalence rates across DOD's active duty population were 6.2% for women and 0.7% for men. These estimated prevalence rates were higher for active duty women than the FY2016 of 4.3% while the rate for men remained close to the FY2016 rate of 0.6%.

Discussion: The following discussion is split into four topic areas:

Reporting and Accountability; Prevention and Response; Victim Services and Support; and Military Justice and Investigations.

In March 2019, following a Senate Armed Services Committee hearing, the Acting Secretary of Defense established the Sexual Assault Accountability and Investigation Task Force (SAAITF). This task force made several recommendations for legislative action, some of which are reflected in sections of the House and Senate bills.

Reporting and Accountability . Several provisions in the House and Senate bills would have offered support to congressional oversight. In the FY2015 NDAA, Congress called for the establishment of a 20-member Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD). The committee was established in 2016 and has since produced several studies. Section 548 of the House bill and Section 533 of the Senate bill would have extended the term of the DAC-IPAD for an additional five years. The House provision would have also expanded the scope of the committee's research to include exploring the feasibility of incorporating restorative justice models into the UCMJ. Section 535 of the enacted bill adopts the Senate provision and expands the scope of research as proposed in the House bill.

Section 535 of the Senate bill would have required the committee to review and assess the relationship between race and ethnicity and the investigation, prosecution, and defense of sexual assault. In May 2019, the GAO reported that "Blacks, Hispanics, and male servicemembers were more likely than Whites and female servicemembers to be the subjects of recorded investigations in all of the military services, and were more likely to be tried in general and special courts-martial." GAO also reported that differences in how the Services record information on race and ethnicity make it difficult to identify disparities. Section 540A of the House bill would have required DOD to conduct a review of racial, ethnic, and gender disparities across the entire military justice system (see also the " Diversity and Inclusion " section of this report). Section 540I of the enacted bill adopts the House provision and requires the DAC-IPAD to conduct the review for each fiscal year in which the committee assesses completed court-martial cases.

Both bills (House Section 549 and Senate Section 534) would have required the Secretary of Defense to establish a 20-member "Defense Advisory Committee for the Prevention of Sexual Misconduct" with expertise in areas such as organizational culture, suicide prevention, implementation science, and the continuum of harm. This provision was adopted in the enacted bill. Section 540M of the enacted bill adopts a Senate provision requiring a GAO report on Armed Forces implementation of statutory requirements for sexual assault for FY2004âFY2019.

Prevention and Response. Section 521 of the Senate bill would have required the Secretary of Defense and Secretaries of the military departments to promulgate policies "to reinvigorate the prevention of sexual assault involving members of the Armed Forces." Elements of the required policy would include, (1) education and training on the prevention of sexual assault; (2) promoting healthy relationships; (3) empowering and enhancing the role of noncommissioned officers in the prevention of sexual assault (4) fostering social courage to promote interventions to prevent sexual assault; (5) addressing behaviors across the continuum of harm; (6) countering alcohol abuse, including binge drinking; and (7) other matters as the Secretary of Defense deems appropriate. The enacted bill adopts this provision.

Senate Section 530 and House Section 550O would have ensured that Catch a Serial Offender (CATCH) Program information is not subject to Freedom of Information Act (FOIA) requests. According to SAPRO, "CATCH allows sexual assault victims (Service members and adult dependents) to discover if the suspect in their restricted report may have also assaulted another person (a "match" in the CATCH website), and, having that knowledge, decide whether to convert their restricted report to unrestricted to initiate an investigation of the serial offender suspect." A sexual assault victim may submit a confidential restricted report and receive counseling and other services without notifying his or her commander or military investigative authorities. The report may later be converted to an unrestricted report , which does initiate an investigation. Section 530 would ensure that restricted reports to, or by the CATCH program, would not affect the report's status as restricted and thus would maintain victim confidentiality. Section 530 of the enacted bill adopts the Senate provision.

Victim Services and Support . Both bills included provisions that would have expanded or enhanced the Special Victim Counsel (SVC) program. An SVC is a judge advocate or civilian attorney who meets special training requirements and provides legal assistance to victims of sexual assault throughout the military justice process. Based on victim surveys, there is substantial confidence and satisfaction with SVC services and support. Sections 541 and 542 of the Senate bill would expand SVC services to include cases of retaliation and would authorize services for military-affiliated victims of domestic violence when resources are available. House Section 542 would also expand SVC services to victims of domestic violence, establish minimum staffing levels, and require the creation of SVC paralegal positions. Sections 541 and 548 of the enacted bill adopt the Senate provisions and includes an amendment requiring specialized training in domestic violence for specified legal counsel and a report to Congress on resources needed to carry out the program.

Both House and Senate bills would have also ensured that an SVC would be made available to a requesting victim within a certain amount of timeâ48 hours in the House bill (Section 550A), and 72 hours in the Senate version (Section 543). Section 542 of the enacted bill adopts the Senate provision for a 72-hour window. Finally, similar provisions in both bills (House Section 550C and Senate Section 544) would have required SVC training on state-specific criminal justice matters. Section 550C of the enacted bill adopts the House provision and adds "protective orders" to the list of topics for training.

Another aspect of victim protection and support that appeared in both bills is the requirement for development of a safe to report policy (House Section 550 and Senate Sections 527 and 528). This policy, which has been implemented in some form at the military service academies, is intended to remove disincentives for alleged victims to report sexual assault incidents by protecting cadets and midshipmen from punishment for minor collateral misconduct violations that might be uncovered during an investigation. In response to the House provision, the Administration stated that such a policy "would provide blanket immunity [to the alleged victim] and might have the effect of undermining the validity of a victim's allegations. Specifically, under this provision, victims might be subjected to allegations that the report was made merely to escape disciplinary or punitive action." It is not clear from existing data how prevalent it is for misconduct investigations to lead to sexual assault allegations or vice versa. However, survey data suggests that collateral misconduct may reduce reporting of sexual assault. According to active duty survey data for 2018, 34% of women and 26% of men who experienced a sexual assault did not report the assault because they "thought they might get in trouble for something they had done or would get labeled a troublemaker." The final bill did not adopt the safe to report provision.

Section 558 of the House bill would have required the Secretary of Defense to draft regulations on the consideration of a transfer of a military service academy student who is the victim of a sexual assault or related offense to another service academy. Section 555 of the enacted bill adopts the House provision and includes an amendment expanding options available to include enrollment in a Senior Reserve Officer Training Corps (SROTC) program. Regular active duty members who are victims of sexual assault have the ability to request a permanent change of station, or a change of unit or duty assignment at the same installation; however, there are generally no regulations that provide for transfer to another service (e.g., from the Navy to the Army). Service academy cadets and midshipmen may be offered the opportunity to change units (i.e., companies or squadrons) within the same academy; however, cross-service transfers are rare. The military service academies all have similar entry requirements based on physical, mental and moral standards; however, there are certain curriculum and military education requirements that are specific to the individual academies for each academic year and summer training period. As such, considerations for transfer may include the ability of the individual to qualify under another academy's standards and complete all requirements for commissioning within the four-year program, or the necessity of waivers for certain requirements .

Finally, Section 550P in the House bill and Section 531 in the Senate bill would have addressed continued confidentiality of restricted reports if a sexual assault allegation is inadvertently disclosed to a third party who would normally be a mandatory reporter (e.g., commanding officers, supervisors, and law enforcement). Mandatory reporters are individuals who, when they receive information that a sexual assault has occurred, must report that information to military criminal investigative services. The enacted bill adopts the Senate provision.

Military Justice and Investigations . Several provisions in the House and Senate bills sought to make changes to how disposition decisions are made in sex-related cases for military service academies and the total force. Section 538 of the House bill would have established a four-year pilot program at the military service academies, This pilot would have required the Secretary of Defense to establish an Office of the Chief Prosecutor, at the grade of O-7 or above, for the independent review and disposition of certain sex-related ( special victim ) offenses. Those who argue for taking decision-making outside of the chain of command contend that independent prosecutors are better equipped to make disposition decisions and that such an endeavor could improve victim confidence in the investigative and judicial process. For the 2017â2018 academic program year at the service academies, there were 67 unrestricted reports alleging sexual assault by or against cadets, midshipmen, or prep school students, and 55 investigations initiated during the APY. The Administration opposed this pilot program contending that it would, "outsource authority for discipline," and "undermines commander accountability and the chain of command relationship." The provision was not adopted.

Since 2012, DOD policy has required that all unrestricted reports of adult sexual assault offenses be reviewed by a special court-martial convening authority (SPCMCA) for the initial disposition decision. Section 522 of the Senate bill would codify the requirement that only a SPCMCA in the grade of O-6 or above may have disposition authority for certain sex-related offenses. In addition, it would require that only a SPCMCA or higher in the victim's chain of command may make disposition decisions with regard to any collateral misconduct by the victim. This provision was not adopted.

House Section 540 and Senate Section 523 were similar provisions that would require training for those responsible for the disposition of sexual assault cases on the exercise of such authority. Section 540C of the House bill and Section 525 of the Senate bill would have required uniform training for commanders on their role in each stage of the military justice system with regard to sexual assault cases. The enacted bill adopted these provisions.

Section 539 of the House bill would have required that commanders take timely disposition action on nonprosecutable sex-related offenses, following a determination that there is insufficient evidence to support prosecution for a sex-related offense in a general or special court-martial. Under this provision, a commanding officer would receive the investigative materials within seven days of the nonprosecutable determination and would be required to take other judicial, nonjudicial, or administrative action on the case within 90 days. The Administration objects to this provision on the basis that it could be inconsistent with statutory requirements for higher-level review of certain non-referral dispositions and that the 90-day deadline could potentially immunize misconduct if command action is not taken within that timeframe. Section 540C of the enacted bill adopts the House provision with an amendment requiring a policy to ensure the timely disposition of alleged sex-related offenses that a court-martial convening authority has declined to refer for trial by a general or special court-martial, due to a determination that there is insufficient evidence to support prosecution.

Several provisions in the bills also addressed victim consultation and notifications during investigative and judicial processes. Section 550B of the House bill and Section 526 of the Senate bill were identical provisions that would have require commanders to notify victims on a monthly basis on any final determinations (i.e., administrative, nonjudicial punishment, or no further action) made with respect to a case that is not referred to court-martial. The enacted bill adopted this provision.

The FY2015 NDAA ( P.L. 113-291 Â§524) required that DOD officials ask victims about their preference regarding the prosecution venueâwhether they prefer prosecution by court-martial or in a civilian court of jurisdiction. A March 2019 report by the DOD Inspector General found that in approximately 27% of the cases reviewed, victims were denied the opportunity to state their preference. In the remaining cases there was insufficient documentation to ascertain whether the victims were consulted as required by law. Sections 534 and 547 of the House bill and Section 524 of the Senate bill included provisions that would have required documentation of the consultation with the victim on the prosecution venue. Section 538 of the enacted bill adopts House provision 534 and requires implementation no later than 180 days after enactment.

An April 2019 report by DOD's SAAITF recommended making sexual harassment a criminal offense for uniformed personnel by adding a specific punitive article to the UCMJ, to "make a strong military-wide statement about the seriousness of these behaviors and the military's zero tolerance policy for them." Section 529 of the Senate bill would have require DOD to submit a report within 180 days of enactment on recommended legislative and administrative actions required to establish a separate punitive article for sexual harassment in the UCMJ. Section 540E of the enacted bill adopts the Senate provision.

References: See also CRS Report R44944, Military Sexual Assault: A Framework for Congressional Oversight , by Kristy N. Kamarck and Barbara Salazar Torreon, Previously discussed in CRS Report R45343, FY2019 National Defense Authorization Act: Selected Military Personnel Issues , by Bryce H. P. Mendez et al. and similar reports from earlier years.

CRS Point of Contact : Kristy N. Kamarck and Alan Ott.

Screening and Testing for Environmental and Occupational Exposures

Background: In general, DOD policies require the protection of military and civilian personnel from accidental death, injury, or occupational illness. DOD's occupational and environmental health programs typically require military and civilian personnel to receive occupation- or mission-specific exposure or injury prevention education, operational risk management training, personal protective equipment, exposure assessments, and medical prophylactics or treatment, if necessary.

DOD policies also require exposure assessments and screenings for certain hazardous substances or potentially harmful environments, such as lead, hexavalent chromium, cadmium, open air burn pits, radiation, blast pressure injuries, and noise. DOD primarily documents exposures in the Defense Occupational and Environmental Health Readiness System (DOEHRS), an electronic "information management system for longitudinal exposure recordkeeping and reporting." DOD epidemiologists, public health practitioners, and occupational safety experts use DOEHRS data to conduct medical surveillance, inform future prevention measures, and develop improved personnel protective equipment. DOD medical personnel can use DOEHRS data when evaluating, diagnosing, or treating patients exposed to a hazardous substance or environment. In addition to DOEHRS, DOD can also document certain exposures in legacy electronic health record systems, paper medical records, or the individual longitudinal exposure record (ILER). The VA also utilizes DOD's exposure data when considering presumptive service connection for a veteran's claim for disability compensation, or providing ongoing medical care.

While DOD's occupational and environmental health programs screen, document, and track servicemember or civilian employee exposure to certain substances, all potentially hazardous substances are not covered under these programs.

Discussion: The enacted bill include provisions that address DOD's requirements and processes for documenting and conducting medical surveillance on certain at-risk individuals or those exposed to certain hazards.

General Exposure Documentation and Tracking. Section 705 of the enacted bill amends 10 U.S.C. Â§1074f to include additional requirements for DOD to "record any exposure to occupational and environmental health risks" during the course of a servicemembers' deployment and make such information available to other DOD health care providers conducting post-deployment medical examinations or reassessments. The bill also requires DOD health care providers to: (1) use standardized questions when assessing for deployment-related exposures, (2) include detailed diagnosis codes in a servicemember's medical record, and (3) have access to information contained in the Airborne and Open Burn Pit Registry (i.e., Burn Pit Registry).

Lead Exposure. Section 703 of the enacted bill adopts Senate Section 703, which requires DOD to offer lead level screening and testing to potentially exposed children. DOD is to implement this requirement by establishing clinical practice guidelines that take into account recommendations published by the U.S. Centers for Disease Control and Prevention (CDC) on lead level screening and testing in children. The provision directs the sharing of test results with the child's parent or guardian. Test results with "abnormal" or "elevated" blood lead levels are to be disclosed to the local health department, or the CDC and an "appropriate authority" of the host nation, if residing overseas. DOD is required to report to Congress, by January 1, 2021, the number of children screened, found to have elevated blood lead levels, and provided treatment for lead poisoning. The provision also tasks GAO to report to Congress on the effectiveness of DOD's lead screening, testing, and treatment program for children.

Not adopted was House Section 710, which would have authorized $5 million in the Defense Health Program account to fund lead level screening and testing for children through an offset reduction to the Army procurement account for Wheeled and Tracked Combat Vehicles.

Burn Pit & Airborne Hazards Exposure. Section 704 of the enacted bill directs DOD to assess servicemembers for exposure to open burn pits or other toxic airborne hazards. The provision requires exposure assessments during the annual periodic health assessment, separation history and physical examination, and deployment health assessments. DOD is also required to enroll exposed servicemembers in the Burn Pit Registry and share its assessment findings with the VA.

PFAS Exposure. Section 707 of the enacted bill directs DOD to assess its firefighters, during their annual physical examination, for exposure to PFAS. The assessment requirement is to take effect on October 1, 2020.

Blast Pressure Exposure. Section 717 of the enacted bill adopts House Section 716. The provision directs DOD to document in a servicemember's medical record, information on blast pressure exposure that results in a "concussive event or injury that requires a military acute concussive evaluation." Section 742 of the enacted bill modifies the requirement for a longitudinal medical study on blast pressure exposure in servicemembers, as directed by Section 734 of the FY2018 NDAA ( P.L. 115-91 ). The modification requires DOD to assess the feasibility of uploading its blast pressure exposure data into DOEHRS or other tracking systems, as well as data interoperability with MHS Genesis.

References: CRS Report R45986, Federal Role in Responding to Potential Risks of Per- and Polyfluoroalkyl Substances (PFAS) , coordinated by David M. Bearden, and CRS Report RS21688, Lead-Based Paint Poisoning Prevention: Summary of Federal Mandates and Financial Assistance for Reducing Hazards in Housing , by Jerry H. Yen.

CRS Point of Contact: Bryce H.P. Mendez.