The Servicemembers Civil Relief Act: a Modern Replacement for the Sscra
| Publication year | 2005 |
| Pages | 20-25 |
| Citation | Vol. 74 No. 9 Pg. 20-25 |
74 J. Kan. Bar Assn. 9, 20-25 (2005). The Servicemembers Civil Relief Act: A Modern Replacement for the SSCRA
74 J. Kan. Bar Assn. 9, 20-25 (2005)
As the war in Iraq continues, tens of thousands of National Guard (Guard) and Reserve soldiers, sailors, airmen, and marines have been called to active duty service. Among the states, Kansas has been reported to have the "eighth-highest mobilization rate per capita, with 11.2 . . . soldiers called to active duty for every 10,000 residents."(fn1) For these part-time or "citizen soldiers," the financial responsibilities and legal obligations they enter as private citizens and business owners can create serious problems for them and their families during extended tours of active duty.
Since the Civil War, the U.S. Congress has attempted to reduce the adverse effects of military service on these soldiers. In 1940 Congress enacted the Soldiers' and Sailors' Civil Relief Act(fn2) (SSCRA), which, with only minor amendments, remained essentially unchanged until late 2003. On Dec. 19, 2003, however, President Bush signed into law the first wholesale restatement of the SSCRA. This recodification of the civil relief laws for the military is called, simply, the Servicemembers Civil Relief Act (SCRA/Act).(fn3)
The purpose of this article is to provide an overview of the significant changes in the SCRA compared to the earlier SSCRA. In brief, the changes are both stylistic, requiring only a few comments, and substantive, involving a general broadening of some protections of the SSCRA. It is beyond the scope of this article to provide a comprehensive review of either the SSCRA or the SCRA. Rather, this article will describe what is substantively different or new in the SCRA compared to the SSCRA. For a quick overview of the more commonly used provisions of the SSCRA, however, a number of sources are available both online and in print.4
Background
Beginning shortly after the conclusion of the 1990-1991 Gulf War, representatives from the Judge Advocate Generals began meeting with staffers from the House Committee on Veterans' Affairs to identify and propose changes to the SSCRA. The result, in 1992, was a draft restatement of the SSCRA.
This effort languished, however, until the 2003 invasion of Iraq and the extended deployments that have followed. The lengthy nature of current combat operations in Iraq resulted in the activation of large numbers of Reserves and Guard servicemembers, along with attendant financial and legal difficulties for them and their families. Consequently, the draft restatement of the SSCRA from 1992 was reviewed and incorporated in what became the current SCRA.
Part of the intent of the original restatement, in which the author participated in 1992, was a desire to incorporate judicial decisions construing the SSCRA. The SCRA also updates the language of the Act to remove archaic terminology and to reflect the modern military, including the service of women. The language of the SCRA also now reflects and responds to modern financial trends and patterns, such as automobile leasing, and it ties certain protections to financial indices, such as the consumer price index.
Changes to Scope of Protection
Administrative proceedings included
The broad purpose of the SCRA remains the same as that of the SSCRA. Both were intended to enable persons in military service to "devote their entire energy to the defense needs of the nation."(fn5) Unlike the SSCRA, which provided for the temporary suspension of "legal proceedings and transactions" and was generally understood not to apply to administrative proceedings, the new SCRA affects both. Among its purposes are "to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service."(fn6) Given the increasing use of administrative proceedings, at both the federal and state level, this expansion of the SCRA's applicability is significant and will enable a servicemember to stay administrative as well as legal proceedings for a minimum of 90 days, as discussed later in this article.
Certain National Guard service protected by SCRA
Another example of expansion of the protections deals with the Guard. Until 2002 a member of the Guard received protections of the SSCRA only if called to active federal duty, pursuant to Title 10 of the U.S. Code.
As a consequence of this limitation, Guard members called to active duty by the governor of a state, and serving pursuant to state authority, did not receive the protections of the SSCRA. While many states have their own versions of the SSCRA, their scope was limited and inapplicable to actions in other states and in the federal courts.
This shortcoming was particularly critical in the days following the terrorist attacks of Sept. 11. Guard members in many states were activated by their state governors to provide additional security, with airports providing the most visible evidence of their service. Because federal law severely restricts the use of the active duty military to enforce the nation's domestic laws,(fn7) members of the Guard were typically activated in a state status (referred to as Title 32 status), thereby allowing state governors the authority to enforce state law through the Guard. Unfortunately, none of the protections of the SSCRA applied to these servicemembers in their state roles.
The new SCRA incorporates the Veterans Benefit Act of 2002,(fn8) however, and now defines qualifying "military service" to include "service under a call to active service . . . for a period of more than 30 consecutive days under section 502(f) of Title 32, U.S. Code, for purposes of responding to a national emergency declared by the [p]resident and supported by [f]ederal funds."(fn9) Consequently, if a member of the Guard is called to active duty under Title 32 (state authority) for more than 30 days under the...
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