Judges' Guide to the Soldiers' and Sailors' Civil Relief Act

Information on Uniformed Services Employment and Reemployment Rights Act (USERRA) (.doc) (.pdf)

Navy Quick Reference to USERRA (.doc) (.pdf)

Information on Servicemen's Group Life Insurance (SGLI) (.doc) (.pdf)

INTRODUCTION

The Soldiers' and Sailors' Civil Relief Act of 1940 (“SSCRA”), Title 50 United States Code Appendix §§ 500 et seq. as amended, was passed by Congress to provide protection to persons entering or called to active duty in the U.S. Armed Forces. Reservists and members of the National Guard are also protected under the SSCRA (hereafter referred to as the "Act"). The protection begins with the date of entering active duty service and generally terminates within 30 to 90 days and in certain cases for up to six months after release from active duty. Should you have a question regarding the applicability of the SSCRA to your individual situation, please do not hesitate to seek advice from your local military legal assistance office.

QUESTIONS AND ANSWERS

Q. CAN A SERVICEMEMBER GET OUT OF A LEASE OR RENTAL AGREEMENT?

A. Yes -- a lease covering property used for dwelling, professional, business, agricultural or similar purposes may be terminated by a servicemember. Two conditions must be met:

1.  The lease/rental agreement was signed before the servicemember entered active duty; and

2.  The leased premises must have been occupied for the above purposes by the servicemember or his or her dependents.

A. To terminate the lease, the servicemember must deliver written notice to the landlord after entry on active duty or receipt of orders for active duty. Oral notice is not sufficient. The effective date of termination is determined as follows:

a.  For month-to-month rentals, termination becomes effective 30 days after the first date on which the next rental payment is due after the termination notice is delivered. For example: if rent is due on the first of the month and notice is mailed on 1 August, then the next rent payment is due on 1 September. Thirty days after that date would be 1 October, the effective date of termination.

b.  For all other leases, termination becomes effective on the last day of the month after the month in which proper notice is delivered. For example: if the lease calls for a yearly rental and notice of termination is given on 20 July, the effective date of termination would be 31 August.

A. If rent has been paid in advance, the landlord must refund the unearned portion. If a security deposit was required, it must be refunded to the servicemember upon termination of the lease. The servicemember is required to pay rent only for those months before the lease is terminated.

Q. CAN I STOP AN EVICTION ACTION BY MY LANDLORD?

A. If the property is rented for $1,200 per month or less, you may ask the court to delay the eviction action for up to three months. The court must grant the stay if you request it and can prove that your ability to pay was materially affected by your military service.

Q. DOES THE ACT APPLY TO TIME PAYMENTS OR INSTALLMENT CONTRACTS?

A. Servicemembers who signed an installment contract for the purchase of real or personal property before active duty will be protected if their ability to make the payments is "materially affected" because of active duty service. Remember--

a. The servicemember must have paid, before entry into active duty, a deposit or installment payment under the contract.

b. If the servicemember is not able to make payments because of his or her military duty, the Act applies.

c. The vendor (seller) is thereafter prohibited from exercising any right or option under the contract, such as to rescind or terminate the contract or to repossess the property, unless authorized by a court order.

d. The court may determine whether a servicemember's financial condition is "materially affected" by comparing the servicemember's financial condition before entry on active duty with his financial condition while on active duty.

A. No--you are still responsible for your debts after entry on active duty. Your obligation to pay your debts is unchanged by military service.

Q. WHAT ABOUT THE INTEREST RATES ON MY DEBTS AND MORTGAGE PAYMENTS -- DO THEY GO DOWN WHEN I ENTER MILITARY SERVICE?

A. Yes--when an obligation was incurred before entry on active duty, the interest rate goes down to 6%, unless the creditor (bank, finance company, credit card issuer, etc.) can prove in court that the member's ability to pay was not materially affected by military service. The terms "interest" includes service charges.

Q. ARE THERE PROTECTIONS AGAINST MORTGAGE FORECLOSURES?

A. The Act protects servicemembers against foreclosures of mortgages, deeds of trust, and similar security devices, provided the following conditions are met:

a. The relief is sought on an obligation secured by a mortgage, deed of trust, or similar security on either real or personal property;

b. The obligation originated prior to entry upon active duty;

c. The property was owned by the servicemember or dependent before entry on active duty status;

d. The property is still owned by the servicemember or dependent at the time relief is sought;

e. The ability to meet the financial obligation is "materially affected" by the servicemember's active duty obligation.

A. A servicemember who is involved in civil (not criminal) judicial proceedings as either a plaintiff or defendant is entitled to a stay of these proceedings if the court finds that his or her ability to prosecute or defend an action is "materially affected" by reason of his or her active duty service. Courts are reluctant to grant long-term stays of proceedings and tend to require servicemembers to act in good faith and be diligent in their efforts to appear in court. A servicemember's ability to prosecute or defend a civil suit is shown to be "materially affected" when it can be satisfactorily demonstrated to the court that his or her military duties prevent him or her from appearing in court at the designated time and place. An affidavit setting out all the facts and circumstances is usually required.

Q. IF A SERVICEMEMBER IS SUED, CAN A DEFAULT JUDGMENT BE ENTERED AGAINST HIM IN HIS ABSENCE?

A. When a suit is filed, notice of it must be served on the defendant. There are deadlines for filing the servicemember's response. When no response is filed on time, a default is usually entered against the defendant. The SSCRA requires the plaintiff to sign and file an affidavit with the court stating that the defendant is not in the military service before a default can be taken. When the affidavit shows that the defendant is in the military, no default can be taken until the court has appointed an attorney to represent the servicemember defendant. The filing of a false affidavit subjects the filer to a misdemeanor prosecution; the maximum punishment is one year's imprisonment, a fine of $1,000, or both. Any such matter should be brought to the attention of the U.S. Attorney's Office, as well as the servicemember's civilian attorney.

Q. WHAT IF I CANNOT PAY MY INCOME TAXES BECAUSE OF A CALL TO ACTIVE DUTY?

A. The servicemember's ability to pay the tax must be "materially affected" (impaired) by reason of the active duty service. If this is the case, the Act defers (for up to six months after termination of military service) collection of any state or federal income tax on military or nonmilitary income if the payment is due either before or during military service. No interest or penalty may be charged for the nonpayment of any tax on which collection was deferred.

Q. WHAT IF I CANNOT PAY MY LIFE INSURANCE PREMIUMS?

A. If you can no longer pay your premiums on commercial life insurance purchased prior to entry into the service, the government may guarantee the payment of the premiums, or require that the insurance carrier treat the unpaid premium as a loan against the policy. Upon separation, you would have up to two years to pay the premiums.

Q. IF I HAVE OTHER QUESTIONS, WHAT SHOULD I DO?

A. Please consult a legal assistance attorney or private attorney of your choice as soon as possible. Your lawyer can answer many questions and help you to make a fair and intelligent decision about your choices, options and alternatives.

(Adapted, with prior permission, from the State of North Carolina Legal Assistance for Military Personnel Take 1 Handout.)

Q & A on UNIFORMED SERVICES EMPLOYMENT
AND REEMPLOYMENT RIGHTS ACT
(USERRA)

The Uniformed Services Employment and Reemployment Rights Act ("USERRA"), Title 38 United States Code §§ 4301-4333, was passed by Congress to provide protection for servicemembers' employment and reemployment rights. Should you have a question regarding the applicability of USERRA to your individual situation please do not hesitate to seek advice from your local military legal assistance office.

a. You must hold a civilian job. (Jobs that are held for a brief period and not expected to last indefinitely do not qualify for protection.)

b. You must give notice to your civilian employer that you will be leaving the job for military training or service.

c. You must not exceed the five-year cumulative limit on period of service (see below).

d. You must be released from service under honorable conditions.

e. You must report back to your civilian job in a timely manner or submit a timely application for reemployment.

A. USERRA applies to voluntary as well as involuntary military service, in peacetime as well as in time of war.

A. Generally speaking, you must give advance written or oral notice to your employer. This is not required, however, if giving such notice is impossible, unreasonable, or prohibited by DOD regulations. The law does not say how much advance notice is required but you should give your employer as much lead time as possible.

A. There is a five-year limit on total military service under USERRA. Your military service after December 12, 1994, counts toward the cumulative five-year limit of service. However, when you start a new job with a new employer, you receive a fresh five-year entitlement. The five-year limit does not apply if:

a. You are unable (through no fault of yours) to obtain orders releasing you from service in excess of five years to fulfill an initial period of obligated service. This is generally imposed on aviators or others who undergo extensive initial training in certain technical military specialties.

b. Your required drills, annual training and other training duties are certified by the military to be necessary for professional development or training/retraining.

c. Your service was performed during time of war or national emergency or for other critical missions.

A. Yes. When you have exhausted your right to paid military leave, you still have the right to use your accrued civilian leave or to take an unpaid leave of absence.

A. No. You may not be forced to use earned vacation. You are entitled to earned vacation or leave in addition to time off taken to perform military service. An exception would be a case where there is a standard plant shutdown at a certain time of year and all employees must take their vacations during that period and your period of military service happens to coincide with that period.

A. For periods of service of up to 30 consecutive days, you must report back to work for the first full regularly scheduled work period on the day following the completion of the period of service and safe transportation home plus an 8-hour period for rest. If reporting back within this deadline is "impossible or unreasonable" through no fault of your own, you must report back as soon as possible after the end of the 8-hour period.

After a period of service of 31-180 days, you must submit an application for reemployment, either written or oral, with the employer not later than 14 days after the completion of the period of service. If submitting the application within 14 days is impossible or unreasonable through no fault of your own, you must submit it as soon as possible thereafter.

After a period of service of 181 days or more, you must submit an application for reemployment not later than 90 days after completion of the period of service. These deadlines can be extended up to two years to accommodate a period during which you were hospitalized for or recovering from a service-connected injury or illness.

A. You do not automatically forfeit your right to reemployment, but you will be "subject to the conduct rules, established policy, and general practices of the employer pertaining to explanations and discipline with respect to absence from scheduled work."

A. Yes. USERRA gives you the right to elect continued health insurance coverage for yourself and dependents during periods of military service. For periods of up to 30 days of training or service, the employer can require you to pay only the employee share of the cost of such coverage. For longer tours, the employer is permitted to charge you up to 102 percent of the entire premium. If you elect coverage, your right to that coverage ends on the day after the deadline for you to apply for reemployment or 18 months after your absence from your civilian job began, whichever comes first.

USERRA gives you and your previously covered dependents the right to immediate reinstatement of your civilian health insurance coverage upon return to your civilian job. There can be no waiting period and no exclusion of preexisting conditions (other than for those conditions determined to be service-connected). This right does not depend on your having chosen to continue that coverage during your service.

To the extent that your employer offers other non-seniority benefits (e.g. holiday pay or life insurance coverage) to employees on furlough or leave of absence, the employer is required to provide those same benefits to you during your period of military service. If the employer's treatment of persons on leave of absence varies according to the kind of leave (jury duty, educational, etc.), then the comparison should be made with the employer's most generous form of leave. Of course, you must compare periods of comparable length.

A. You have four basic entitlements:

a. Prompt reinstatement (generally a matter of days, not weeks, but this will depend on the length of your absence).

b. Accrued seniority, as if you had been continuously employed. This applies to rights and benefits determined by seniority as well, such as job status, rate of pay, pension vesting, and credit for the period for pension benefit computations.

c. Training or retraining and other accommodations. This would be particularly applicable in case of a long period of absence or service-connected disability.

d. Special protection against discharge, except for cause. The period of this protection is 180 days following periods of service of 31-180 days. For periods of service of 181 days or more, it is one year.

A. USERRA provides that, if your period of service was less than 91 days, you are entitled to the job you would have attained if you hadn't left, provided that you are still, or can become, qualified for that job. If you are unable to become qualified for a new job after reasonable efforts by your employer, you are entitled to the job you left.

For periods of service of 91 days or more, the employer may reemploy you in the position you would have attained or position you left, or in a position of "like seniority, status and pay" to the duties of your old job.

Even a temporary job may get USERRA protection provided there was a reasonable expectation that employment will continue indefinitely or for a significant period.

A. If you have been gone from your civilian job for months or years, your civilian job skills may have been dulled by a long period without use. You must be qualified to do the job in order to have reemployment rights, but the law requires the employer to make "reasonable efforts" to qualify you.

"Reasonable efforts", means actions, including training, that don't cause undue hardship to the employer. If you can't become qualified after reasonable efforts by your employer and you are not disabled, you must be employed in another position of lesser status and pay, the duties of which you are qualified to perform, with full seniority.

USERRA also requires the employer to make "reasonable efforts" to accommodate a service-connected disability. If upon your return from military service you are suffering from a service-connected disability that cannot be accommodated by reasonable employer efforts, the employer is to reemploy you in some other position that you are qualified to perform and which is the "nearest approximation" of the position to which you are otherwise entitled, in terms of seniority, status and pay.

A disability need not be permanent in order to confer rights under USERRA. For example, if you break your leg during your annual training, your employer may have an obligation to reasonably accommodate your broken leg, or to place you in another position, until your leg has healed.

A. Yes. Section 4311(a) of USERRA states that service members "...shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer" on the basis of military service. The Act further provides protection against retaliation for exercising one's right under USERRA such as by testifying, initiating a complaint, or helping with an investigation.

A. You may contact your local legal assistance office with questions or concerns about your civilian job. Contacting a judge advocate for help may the best step. Furthermore, if you believe your employer has violated your rights under USERRA and you wish to file a formal complaint, contact the Veterans' Employment and Training Service (VETS) of the United States Department of Labor.

You can call (800) 442-2838 to obtain the address and telephone number of the VETS office closest to you. VETS is required to investigate all complaints. Under the new laws, VETS will perform investigations for federal employees claiming reemployment rights, as well as employees of state and local governments and the private sector.

(Adapted, with prior permission, from the State of North Carolina Legal Assistance for Military Personnel Take 1 Handout.)

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a federal law which gives members and former members of the U.S. armed forces (active and reserves) the right to go back to a civilian job they held before military service.

Who gets USERRA protection? You probably qualify for USERRA protection if you meet all five of these tests:

1. Job. Did you have a civilian job before you went on active duty? All jobs are covered, unless your employer can prove the job was truly a temporary position. USERRA applies to all private employers, state governments, and all branches of the federal government.

2. Notice. You (or a responsible officer from your military unit) must give advance notice to your employer before leaving for active duty. Notice can be oral or in writing, but you can best protect your rights by sending a letter by certified mail, or having your employer sign your copy of your letter, acknowledging receipt.

3. Duration. You can be gone from your civilian job for up to five years (total). Any absences from your employer protected under the previous law (VRRA) count towards your total. Most periodic and special Reserve and National Guard training does not count towards your five year total.

4. Character of service. If you are discharged, you must receive an honorable or general discharge. This test does not apply if you remain in the reserve component, but your employer can still require some proof from your unit that your period of service was honorable. A letter from your commander will suffice.

5. Prompt return to work. If you were gone up to 30 days, you must report back to the first shift which begins after safe travel time from your duty site plus eight hours to rest. If you were gone 31 to 180 days, you must apply in writing for work within 14 days after completing military service. If you were gone 181 days or more, you must apply in writing for work within 90 days. Tell your employer you worked there before, and you left for military service.

1. Health insurance during service. If you ask for it, your employer must continue to carry you and your family on the company health plan for up to 30 days of service, at the normal cost to you. TRICARE does not cover family members for tours of 30 days or less. You can get up to 18 months of coverage, but your employer can pass on the full cost (including the company's share) on to you.

2. Prompt reinstatement. You get your job back immediately if you were gone 30 days or less. After longer service, you must get your job back within a few days.

3. Status and Seniority. For purposes of status, seniority, and most pension rights (including pay rate) you are treated as if you never left for military service. If your peers got promotions or raises while you were gone, you do too.

4. Training and other accommodations. Your employer must train you on new equipment or techniques, refresh your skills, and accommodate any service-connected disability.

5. Special protection against discharge other than for cause. If you are fired within a protected period, your employer must prove the firing wasn't because of military service. Your protected period varies with how long you were gone.

6. Immediate reinstatement of health benefits. You and your family may choose to go back on the company health plan immediately when you return to your civilian job. There can be no waiting period and no exclusion of pre-existing conditions, other than for VA-determined service-connected conditions.

7. Antidiscrimination provision. USERRA prohibits discrimination based on military service or military service obligation.

8. Other benefits. USERRA guarantees you certain rights. It does not eliminate any other benefits you may have from state law, contract, or collective bargaining agreement.

Enforcement.

1. The National Committee for Employer Support of the Guard and Reserve (ESGR), (800) 336-4590 or (703) 696-1400. ESGR provides ombudsmen who mediate reemployment issues between military members and their civilian employers. http://www.esgr.org. The site provides tips for reserve members and employers.

2. The U.S. Department of Labor Veterans Employment and Training Service (VETS), (202) 219-9110. The Department of Labor is responsible for resolving and/or investigating reemployment issues. http://www.dol.gov/dol/vets. The site has a Non-Technical Resource Guide to USERRA.

3. Contact your legal assistance attorney. Remember your military legal assistance attorney may not act as your personal attorney in reemployment disputes.

4. USERRA gives you the right to sue your employer in federal court. See 38 U.S.C. §§ 4301-33. If your lawsuit is successful, you may be able to recover court costs and attorney fees from your employer.

If you need additional information, contact us at legalassistance@jag.navy.mil.

Every military member, reserve and active has at least $250,000 in life insurance. Especially in blended families, it is important for the civilian attorney to understand how the beneficiary provisions work. Pursuant to Ridgeway v. Ridgeway, 454 U.S. 46, 102 S. Ct. 49, 70 L. Ed. 2d 39 (1981) the beneficiary designation cannot be ordered by any state court due to Federal Supremacy. Civilian practitioners must understand this federal preemption holding as it may also effect rights of election (i.e. spousal forced shares) under state law. The SGLI web page is at http://www.insurance.va.gov/sglivgli/sglivgli.htm. Practitioners should familiarize themselves with the SGLI Handbook, the method of selecting beneficiaries, and understand SGLI's beneficiary provisions including that all primary beneficiaries will share and all primary beneficiaries must understand this federal preemption holding must predecease before proceeds pass to any contingent beneficiary.