Vol. 14, No. 3, Pg. 14. Legal protection of military reservists.

Author:By LTC Barry Bernstein and MAJ David Lawson

South Carolina Lawyer


Vol. 14, No. 3, Pg. 14.

Legal protection of military reservists

14Legal protection of military reservistsBy LTC Barry Bernstein and MAJ David LawsonSince September 11, 2001, America has been on a wartime posture. At first blush our personal lives have changed little. Professionally it is necessary to revisit the laws protecting military members. Fifty years ago such provisions were common knowledge among practitioners because of the vast number of veterans and reservists following World War II. The same basic protections are in place today, and attorneys should be aware of the laws available to service members and legal burdens placed on others.

There is a wealth of statutes pertaining to military members and the law. Previously only those practicing near military bases were cognizant of these unusual protections. Since the Cold War's end and military downsizing, reservists and guardsmen fill roles previously left to the active components. Our military response today now touches every community in America. No longer a follow-on or augmentation force, reservists and guardsmen are integrated in operations and expect to be deployed at the initiation of hostilities. This provides no early warning and overseas deployment in a matter of days.

16Reserve military forces in the United States include the National Guard (Army and Air) organizations of each state, and the Reserve of each military branch. Entire units or individuals may be mobilized. Each county in South Carolina has a National Guard unit while some also have reserve centers. All military branches maintain bases in the state. Units with little history of activation are now performing nonstandard missions. In a nutshell, today's American military and current operations ensure that people around South Carolina will be activated.

Mandates provide special protection for the military. These place burdens on employers, creditors and the courts. The ability to place these on the public is constitutional under Article I, § 8 (power to raise and support military forces). The majority of case law centers on the Soldier's and Sailor's Civil Relief Act (SSCRA) of 1940 and the Uniformed Services Employment and Reemployment Act (USER-RA) of 1994. 50 U.S.0 501592 and 38 U.S.C. 4301-4333 respectively. The U.S. Supreme Court determined such laws should "be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation." Boone v Lightner, 319 U.S. 561, 575 (1943). See also LeMaistre v. Leffers, 333 U.S. 1, 6 (1948)"[T]he act must be read with an eye friendly to those who dropped their affairs to answer their country's call."

Soldier's and Sailor's Civil Relief Act (SSCRA) Continuances

A service member shouldn't have to defend oneself while on military duty away the from the locale of the court. This federal protection is not absolute since it is an affirmative defense and must withstand a court analysis. There is a greater protection under state law for National Guardsmen where no analysis or duty is required. State law expands the protection from the soldier to the client's...

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