Kansas Bar Journals
71 J. Kan. Bar Assn. 2, 17-25 (2002).
Soldiers' and Sailors' Civil Relief Act Protection: An Update for the War Against Terrorism
Kansas Bar Journal71 J. Kan. Bar Ass'n, Feb. 2002, 17-25 (2002)Soldiers' and Sailors' Civil Relief Act Protection: An Update for the War Against TerrorismPottorff , James P. Jr., Soldiers' and Sailors' Civil Relief Act Protection: An Update for the War Against Terrorism, J. Kan. Bar Ass'n, Feb. 2002, 17-25By James P. Pottorff Jr., General Counsel University of KansasJames P. Pottorff Jr., Colonel (Retired), U.S. Army. Presently General Counsel, University of Kansas, Lawrence, Kansas. Military assignments included Staff Judge Advocate, 10th Mountain Division and Fort Drum, Fort Drum, New York; Deputy Staff Judge Advocate, United States Military Academy, West Point, New York; Assistant Professor of Administrative and Civil Law, The Judge Advocate General''s School, Army, Charlottesville, Virginia; and Chief of Criminal Law and Chief of Claims, 1st Infantry Division and Fort Riley, Fort Riley, Kansas. B.S., United States Military Academy, West Point, New York 1975; M.A., 1979, Pepperdine University, Malibu, California; J.D., 1984, University of Kansas, Lawrence, Kansas; L.L.M., 1989, The Judge Advocate General's School; M.A., 1999, Naval War College, Newport, Rhode Island. Member of the bars of the State of Kansas, the Army Court of Military Review, and the United States Supreme Court.
This article substantially updates and draws on articles published by the author in the Virginia Lawyer Register in December 1990 and in the Military Law Review in 1991 and on notes published in The Army Lawyer in 1990 and 1991. The opinions and conclusions reflected in the article are those of the author and do not necessarily reflect the views of any federal or state agency.
Operation Enduring Freedom, the United States' response to the terrorist attacks on the World Trade Center and the Pentagon, involves a concerted effort by the United States to bring to bear all the instruments of national power - economic, diplomatic, informational, and military - against the attackers and their supporters. To employ the military instrument, the Bush administration to date has ordered the mobilization of over 50,000 reserve component service members in what appears to be the largest mobilization since the end of the Gulf War over ten years ago. As was the situation during Operations Desert Shield and Desert Storm during the Gulf War, these call-ups to active duty can raise a variety of legal issues for individuals mobilized from their civilian lives to active military service. To assist these individuals, it is useful for attorneys to have a working knowledge of several pertinent provisions of the Soldiers' and Sailors' Civil Relief Act (SSCRA) as well as an understanding of Congressional philosophy and intent in maintaining this wide-ranging act.
This article will review, in a question and answer format, applicability of a number of SSCRA provisions, including several added in response to problems identified during the 1990-1991 Gulf War, to issues service members and their families may face during the present war on terrorism. Specifically, it will discuss the purpose of the SSCRA, eligibility for SSCRA coverage, termination of leases, protection from eviction, automobile leases, mortgage foreclosure, stays of civil proceedings, limitations on interest rates, protection against retaliation, and professional liability protection, as well as proposed solutions to issues associated with these provisions.
What is the purpose of the SSCRA?
Enacted in 1940, and amended periodically over the last 60 years, including amendments in 1991 responding to problems identified during the Gulf War, the SSCRA is intended to protect those who serve their country in the Armed Forces. The premise underlying the SSCRA is that service members should not be disadvantaged either legally or financially when called to active service. As a general rule, courts interpreting the SSCRA have been liberal in applying its protections to service members. In fact, any case in which military service materially affects a service member's ability to meet financial or legal obligations may be open to corrective action under the SSCRA. While the SSCRA results from Congressional efforts to avoid the adverse effects of service, it does not explicitly address all such problems. Although financial agreements such as mortgages, installment contracts, and other interest bearing obligations receive treatment under the SSCRA, obligations, such as child and spousal support, do not.
When there is no provision of the SSCRA that applies to a specific problem, some of the more broadly worded provisions of the SSCRA may be helpful. In this respect, section 510 of Title 50, United States Code Appendix, is particularly useful. Section 510 states that the purpose of the SSCRA is to suspend legal proceedings and transactions "in order to enable [military service members] to devote their entire energy to the defense needs of the Nation...." In a judicial endorsement of this policy, the Supreme Court has stated that the SSCRA should be interpreted "with an eye friendly to those who dropped their affairs to answer their country's call." This statement reflects and guides the approach most courts take, particularly when the person seeking relief is an activated member of the reserve components. As this article will discuss, applicability of these provisions, such as section 510, to many contemporary issues has not been established by judicial interpretation or legislative change. In these cases, when no specific provision of the SSCRA applies, a policy-based argument may be useful.
How and when are reserve component service members eligible for SSCRA coverage?
As a general rule, the SSCRA applies to "persons in the military service." The SSCRA defines "military service" as "Federal service on active duty with any branch of service...." The SSCRA Amendments of 1991 included language making it clear that members of the Air Force receive coverage. Under the SSCRA, "persons" in military service "shall include the following persons and no others: All members of the Army of the United States, the United States Navy, the Marine Corps, the Air Force, the Coast Guard, and all officers of the Public Health Service detailed by proper authority for duty either with the Army or the Navy." Upon reporting for active duty, these persons are then eligible for all SSCRA protections.
Although the SSCRA does not define the composition of each of the Armed Services, other federal statutes in Title 10, United States Code, give helpful definitions. The Army of the United States includes the Regular Army, the Army National Guard of the United States, the Army National Guard while in service of the United States, the Army Reserve, and all persons appointed, enlisted, or conscripted without component. Similarly, the Air Force includes the Regular Air Force, the Air National Guard of the United States, the Air National Guard while in the service of the United States, the Air Force Reserve, those without component, and all other units and individuals who form the basis for complete mobilization for national defense in the event of a national emergency. The United States Navy includes the Regular Navy, the Fleet Reserve, and the Naval Reserve. The Marine Corps includes the Regular Marine Corps, the Fleet Marine Corps Reserve, and the Marine Corps Reserve. Members of the Coast Guard include the Regular Coast Guard and the Coast Guard Reserve, whether actually operating with the Navy or with the Department of Transportation. The SSCRA Amendments of 1991 also substituted "reserve component of the Armed Forces" for "enlisted reserve corps" in Section 516, Title 50, United States Code Appendix, and thereby extended protections under Article I, II, and III of the SSCRA to all reserve component service members upon receipt of orders to active duty. To put this into perspective for those unfamiliar with military orders, Section 516 provides the basic protections of the first three articles of the SSCRA upon receipt of orders to report to active duty even if the active duty period does not begin immediately. Once on active federal duty, the full range of SSCRA protections apply to the service member.
In broad terms, the "reserve components" are the national guard and the reserves. Key to determining whether a member of the national guard is on active federal duty is the actual written order to duty received by the guard member. If the active military service is to be active federal military service, the order should indicate that it is based on authority under title 10, United States Code. If a guard member is called to duty in state service, the order will not be pursuant to title 10 of the U.S. Code and will likely specify it is pursuant to title 32 of the U.S. Code, which signifies state service status. If a guard member is serving in state status, the protections of the SSCRA are not applicable. The national guard is distinct from the military reserves. The "reserves" are composed of individuals in the federal military reserves, and they are not subject to the state governments. When the reserves are called to active duty, it will be pursuant to authority in title 10 of...