The Soldiers' and Sailors' Civil Relief Act - A Survey

• Author: By Captain Philip J. Bagley, III
• Pages: 01

This article is a brief surwy of the provwiom of the Soldiers' end Sailors' Civil Relief Act. The author coni centrates on those sections designed to mttbate the delet-erious financial effects of mllitaw sere& upon the incoming sewiceman.

1. INTRODUCTION

   The Soldiers' and Sailors' Civil Relief Act of 1940 ' is one of the mast misunderstood statutes ever passed by Congress and signed into law by the President. Too often a "soldier or sailor" finds himaelf in a financial or legal quandary after having acted an some false or misleading information about the Act. The Act is not a panacea for all the problems that an individual faces when he Serve8 in the armed forces. Rather the Act merely permits the Serviceman the chance to adjust to the armed forces without having ta face legal and financial problems which may arise a8 a re-sult of military service. The Act itself states that its purpose is to provide "far the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons"* in the armed forces. The Act then does not extinnuish any rinht, but merely suspends legal proceedings and transactions renarding such rights.

   11. APPLICABILITY OF THE ACT

   A good start in examining the Act might be to see what persona are protected by the Act. Section 101 of the Soldiers' and Sailors'

   'The opinions and eoneiYPions presented m e those of the author and do

   not necessarily reprelent the Views of The Judge Advocate General's Sthod nr any other governmental apeney.

   '*JAGC, U.S. Army: Assistant to the Director. Aeademle Department, and Instructor, Military Affair8 Divlsm The Judge Adroeate General's School. U.S. Army: B.A., 1863, Cniwrsiti of Richmond: LL.B., 1866, Uni. Yernlty a i Virginia: mamber of the Bars of Virgma and the U.S. Court of

   ' 10 L'S.C. APD. IS 101-48. 560-90 (18641 [hereafter called the Act and cited BQ SSCRAI. The Act has been extended until Such time BJ it is "re-pealed OT otherwise terminated" by Act of Canpress. 50 U.S.C. App. 5 464 !1864)

   SSCRA 5 511(1). The sections cited herein relate to 50 U.S.C. ~ p p . ~ mpra note 1: sections cited in the text refer to the Act of 1840, itself.

   *GO isoos

   - Military Appeals.

   Civil Relief Act of 1940 j applies to "persons in the military service of the L'nited States" whether entrance into such service was voluntary or involuntary. So distinctions are made among officers. warrant officers, and enlisted men. All sre protected by the Act. Although protected persons sometimes include a civilian who stands behind a serviceman through privity of contract, such as a guarantor or an accommodation maker, or who is joined in a suit as a co-defendant with a service member, or who holds a dependent relationship to the serviceman, it may be said as B gener-alization that the Act affords benefits primarily to the individual on active duty in the military service. Such persons normally in. dude a11 persons an full-time federal active duty, serving with the Army, Navy. Air Force, Marine Corps, Coast Guard, and all officers of the Public Health Service detailed for duty with the military services:

   Thus, B frequent threshold queation with which courts are confronted in cases involving the Soldiers' and Sailors' Civil Relief Act is whether the garty seeking the benefits of the Act is a "per-son in the military service of the United States." Let us examine more closely what this phrase means.

   In addition to being a member of the branches of service listed above, a person seeking the benefits of the Act must also, pursuant to the second sentence af $ 101(1), be either on "active duty" or engaged in "training or education under the supervision of the United States preliminary to induction into the military service."a This latter phrase refers to a situation that prevailed in the Second World War where officer candidates undergoing training prior to commissioning were not yet considered to be in military service.

   The terms "active duty" and "active service" are synonyms. The term "active duty" is defined as "full-time duty in the active military service of the United States."B It includes duty on the active list, full-time training duty and annual training duty, and attendance, while in the active military service, at a school desipnated as a service school by law or by the Secretary of the military department concerned:

   "Full-time duty in the active military service" is clear and unambiguous language. It does not include retired military person- ' Id.'Id.' Id.' 10 U.S.C. 8 101 (22) (1964).'See SAGA 1953l7116. 9 Sep. 1965.

   a A M 7108

   SSCRA

   ne1 not on active duty, nor service in the reserve components while not an active duty. Members of the Army and Air National Guards of the United States are entitled to the benefits of the Sol-diers' and Sailors' Civil Relief Act while performing full-time duty in their status as members of the Army and Air National Guards if they are entitled to pay from the United States for such duty.' Therefore, you must be a person in the military service, i.e., Army, Air Farce, Navy, Coast Guard or Marines, and you must be on active duty to claim the beneflts of the Act.

   Assuming you are on active duty and seemingly fall within one of these groupings, is it possible for an individual soldier to lose the ability to make use of the various provisions of the Act? Section l O l ( 1 ) states that active duty includes the period during which a person in military service is absent from duty because of sickness, wounds, leave or other lawful cause.' What then if his absence is due to an unlawful oauae? In the case of Mnntr v. Mantz,'o the eaurt held that a soldier who was confined by a general court-martial for a period of five years with a dishonorable discharge at the termination of confinement had, by his actions, removed himself from active duty and could not claim the protection of the Act. There was dictum in that case to the effect that not all confinements will divest the soldier of his rights under the Act, You must look at each case and examine (1) the gravity of the offense and (2) the sentence given. Deserters do lose the Act'a protection," but a serviceman who is AWOL may or may not, depending on the fact in each case.l2

   It was stated above that as a general rule the Act does not apply to dependents of military personnel. However, these dependents do receive certain limited protection. Section SO6 " of the Act extends the benefits of all the sections of Article Ill '' of the Act to dependents of servicemen, if such dependents apply to a eaurt for coverage of a section in Article 111, and if the court finds that the ability af the dependent to comply with the terms of any obligation for which relief is sought is materially impaired by reason of military service of the persm upon whom the appli-

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   cant is dependent. This section is frequently invoked when a ser-vice member has, before entrance upon active duty. contributed substantially to the support af mne other family member. If his service income is small in comparison to his former civilian 88-lary, the chances are good that he won't be able to provide the same amaunt of support If the dependent has civil obligations such as installment contracts or a mortgage, that he has based on the amount of support he formerly received from the service member, there may be a default and subsequent enforcement proceedings by the dependent's creditors. In such a case, upon proper showing. the dependent ma? be given the same benefits listed in Article I11 as the serviceman could get were he liable on the obligation. For example, a court may grant to the defendant a stay in enforcement proceeding under section8 301 or 302.':

   The Act does not provide any guidelines as to who is considered a "dependent" for purpose8 of section 306." It is suggested that the definition of "dependent" as etated in the Army Regulation on upply a definition of "dependent"

   Having examined what persons may, in appropriate cases, claim the Act's protection, the question arises as to whether the Act's provisions are binding upon state as well as federal courts. The answer is in the sffirmatire. As can be Seen from reading sec-tion 102, * the Act has application to "the United States, the sev-eral States and Territories, the District of Columbia , , , and to proceedings commenced in any court therein."2o The term "court" means any court of competent jurisdiction, whether or not a court of record.?'

   Federal and state courts, then, are clearly within the reach of the Act. The question arises. however, as to whether the Act ap. Plies to administrative proceedings. There is very little authority an this paint but the answer is probably in the negative. Far ex-ample, in Poiis v. Creedos,?? it w.8 held that B proceeding before an area rent director was not a proceeding before a "court," and that a landlord in militarr service was not allowed the .4ct's pro-tection in this situation.

   SSCRA

   It should he noted that wtian 205 of the Act.Z, which auspends the running of the statute of limitations while a member is in military service, does proiirie that statutes of limitations having application to administrati\e proceedings are also suspended. Therefore, the Act does appl~ to administrative pr0ceedinp.s to this extent.

   What if the Cnited States wished to sue a SerYice member to eollect hpck taxes or for some other civil matter? Could the service member claim the protection of the Saldiera' and Sailors' Civil Relief Act?

   The Attorney General of the United States at an early date opined that the So'diers' and Sailors' Civil Relief Act of 1940 was applicable to all agencies of the Federal Government.?' In 80

   doing the Attome>- General applied the rule that where the subject matter of a statute is such that the solereign is the chief party in interest, the qtatute binds the sovereign 8% well as pri-rate parties. This mas recognized by the Attorney General as an exception to the general rule of statutory...