Chapter 24

Legal Assistance in Operations

I. INTRODUCTION

A.   Personal legal problems can affect Soldiers’ combat efficiency and detract from their ability to concentrate on the military mission at hand.^[1] One objective of the Army Legal Assistance Program is to enhance combat efficiency by assisting Soldiers with their personal legal issues.^[2]

B.    From an operational standpoint, servicing Judge Advocates (JAs) must ensure that Soldiers’ personal legal affairs are in order prior to deployment. Once deployed, JAs assist Soldiers in resolving their problems quickly and efficiently. The broad nature of the legal assistance mission makes it impossible to summarize all the laws and resources a practitioner may need during a deployment. This chapter outlines certain situations, identifies resources, and highlights some recurring substantive issues that may arise.

II. PreparATION for Exercises, Mobilization, and Deployment

A.   Aggressive pre-deployment preventive law efforts can often eliminate or reduce legal assistance problems that arise during deployment.

B.    The Office of the Staff Judge Advocate (OSJA) and Brigade Judge Advocate (BJA) must ensure Soldiers’ legal affairs are reviewed and updated at least annually, and more frequently as expected deployments near. Judge Advocates should look for opportunities to raise awareness of frequently encountered issues to deploying Soldiers. Prior to deployment, both the Soldier and the Soldier’s family must be prepared. For the Soldier, this preparation is an ongoing effort that should begin upon arrival at the unit.

III. SOLDIER READINESS Processing (SRP)

A.   AR 600-8-101 establishes the Soldier Readiness Program (SRP) and mandates that Soldiers of the Active Army (AA), the Army National Guard (ARNG), and United States Army Reserve (USAR) Soldiers in troop program units will all undergo a comprehensive SRP annually and within sixty days of a deployment.^[3] USAR Soldiers not in troop program units should still undergo a comprehensive SRP whenever they serve on active duty.

1.    Twenty-seven functional areas comprise the SRP  as identified in AR 600-8-101, para. 1-6.b. Accordingly, the legal portion of the SRP is part of a broader assessment of a Soldier’s readiness and availability for deployment.

2.    DA Form 7425 serves as a checklist and the focal point for the SRP. Judge advocates must ensure the most current edition of the DA Form 7425 is being used by the SRP, as previous editions created the foundation for a violation of client confidence with the Lautenberg Amendment check.

B.    At a minimum, the legal component of the SRP requires Soldiers receive counseling about wills and powers of attorney (POA).^[4] DA Form 7425 requires a determination of whether or not the Soldier has a domestic violence investigation pending. This latter requirement is important to the command because Servicemembers with “a qualifying crime of domestic violence are non-deployable for missions that require possession of firearms or ammunition.”^[5] Legal Assistance Attorneys (LAAs) may counsel individual Servicemembers regarding domestic violence matters; however, LAAs must be aware of the potential for creating a confidentiality issue under AR 27-26.^[6] At the SRP, DA Form 7425 requires the G-1 to confirm whether there is a domestic violence issue. If there is a problem, personnel from that section report it to the command and should send the Soldier to the LAA for help. Finally, in the area of training, correctly processing the DA Form 7425 at the SRP requires a check on whether Soldiers have received certain briefings. Depending on the nature of the deployment and the unit, these briefings could cover the UCMJ, the Geneva Conventions, the law of land warfare, the standing rules for the use of force and Posse Comitatus (for domestic missions), the Servicemembers Civil Relief Act (SCRA), and the Uniformed Services Employment and Reemployment Rights Act (USERRA). An SRP standardized training packet is available on the TJAGLCS public site.^[7]

IV. OSJA, BCT, and LAO Preparation and planning for THE SRP and deployment

A.   In broad terms, effective legal support for deployment depends on the following factors:

1.    Familiarity with the general legal support needed during mobilization and deployment, so that legal services at the BCT or OSJA, are organized. Legal sections must identify the legal support assets the deployed unit will need ensuring this requirement conforms with the unit’s deployment manning allocation. Legal sections must also identify the legal assets needed to support home station legal requirements and how deploying JAs and paralegals will affect performance of home station legal requirements. Legal sections should explore requesting mobilized USAR legal support to ensure home station legal services are not degraded.

2.    Knowledge of the requirements in each substantive area of the law and mandatory area of practice so that all legal personnel are properly trained, and proper references and forms are available.

3.    Opportunities to participate in pre-deployment exercises to test deployment plans and training.

4.    Effective utilization of RC legal personnel wherever feasible.

5.    Establishment of good working relationships with key Corps, Division, and installation personnel at home station. Deploying legal sections should also establish relationships with the forward unit they will replace as well as the higher forward headquarters.

B.    Legal Assistance Offices (LAOs) and BCT JAs should aggressively sponsor preventive law programs to educate Soldiers and their families before deployment occurs. One best practice for this is LAO or BJA attendance at pre-deployment family readiness group (FRG) meetings. These meetings offer the opportunity to discuss issues with both Soldiers and Families and provide a chance to distribute preventative law information and possibly schedule follow on legal assistance appointments for estate planning services. At a minimum, topics at pre-deployment briefings should include:

1.    Eligibility for legal assistance.

2.    SGLI designations.

a.    Ensure proper designation and coordination with will and other estate planning documents.[8]

b.    If the Servicemember has or wants a testamentary trust, often for the benefit of minors, that is to be funded using life insurance (e.g., SGLI proceeds), then the Servicemember needs to ensure that the SGLV 8286 (i.e., the life insurance beneficiary designation form) lists the beneficiary as follows: “To my trustee to fund a trust established for the benefit of my children (or other designated beneficiary) under my will.”

c.    If the Servicemember prefers to put his or her SGLI proceeds in a custodial account (UGMA/UTMA) for the benefit of his or her minor children rather than in a trust, then the Servicemember needs to ensure that the SGLV 8286 (i.e., the life insurance beneficiary designation form) lists the beneficiary as follows: “To X, as custodian for each of my children pursuant to UGMA / UTMA of State Y with distribution to each minor when that minor reaches age … (e.g., 18 or 21).”

3.    Wills.

a.    Educate clients on the need for comprehensive estate planning, such as estate building, asset protection and allocation, and beneficiary or transfer on death designations. Provide them information about other ancillary documents they may need, to include living wills (i.e., advanced medical directives), health care POAs (i.e., health care proxies), durable POAs, and mortuary planning.

b.    Educate clients on the need and the best way to provide for minor children using such means as testamentary trusts, custodial accounts (e.g., UGMA/UTMA), and guardianships.

c.    Educate clients on the need for their spouses to create wills, advanced medical directives, and POAs.

d.    Educate clients on the need for executors to file estate tax returns in a timely manner in the event of a spouse’s death. By timely filing an estate tax return and making the requisite elections, the surviving spouse may be able to use the unused portion of the decedent spouse’s unified tax credit (i.e., portability).

e.    Educate clients on the importance of preventing conflicts or ambiguity with respect to designating a person authorized to dispose of a Soldier’s remains. Generally, active duty Servicemembers should avoid designating such a person in their will if one is already designated on their DD 93, which is updated more frequently.^[9] Most states have statutes indicating that a designation on a DD 93 takes precedence over a designation made elsewhere, but best practice is to avoid any ambiguity.

4.    POAs.

a.    Due to possibly long duration of deployments, Servicemembers should anticipate the likelihood that a POA might expire prior to their return and be briefed on anticipating a proper POA expiration date and on the availability of obtaining POA services in theater.

b.    Although valid without raised seals, a raised notary seal often promotes broader acceptance of the POA by businesses or persons outside the military.

c.    No business or other entity is required to accept or honor a POA. Soldiers should confirm with businesses at which the POAs might be used whether the business will accept a POA issued by the military, or whether the business requires the use of a POA that the business itself has created. Some businesses may require a special, or limited, POA (e.g., banking or financial institutions, USAA, etc.). Additionally, many on-post agencies will require their own special POA and will not accept a general POA (e.g., DEERS to obtain ID cards, etc.).

d.    Educate clients on the nature, effects, and consequences of general and special POAs, and the prudence of Soldiers utilizing special, or limited, POAs over general POAs.

5.    SCRA.^[10]

a.    Brief Soldiers on the SCRA’s provisions governing a Soldier’s ability—or inability—to change or delay court dates now or while deployed. It should be stressed that the SCRA does not allow for the delay of criminal court dates.

b.    Brief Soldiers on the SCRA’s applicability to residential lease terminations, car lease terminations, cell phone contract terminations, television and internet contract terminations, and other applicable provisions.

c.    Brief Soldiers on the SCRA’s 6% interest protection for pre-active duty obligations. Please note that 6% interest rate protections frequently change, often expanding in applicability. Legal Assistance Attorneys must keep current on all SCRA updates.

6.    Family law issues.

a.    Soldiers must understand that a Family Care Plan (FCP) that proposes to place the Servicemember’s child with some person other than the other biological parent of that child (unless the child remains with the child’s new adoptive parent) may be subject to challenge in court. Soldiers should be briefed on prophylactic measures that may help head off later challenges to a FCP by a non-military parent. Some measures may include the desirability of obtaining written consent from the other biological parent, or a court order in the event the Soldier plans to place the child in the custody of a third party, non-biological, and non-adoptive parent.

b.    Servicemembers must understand that their support obligations under applicable service family support regulations, such as AR 608-99 (Family Support, Child Custody, and Parentage), are not relieved by deployment. They must plan for the continued support of family members during the period of deployment.

c.    50 U.S.C. § 3931 protects Servicemembers against default judgments in “any civil action or proceeding, including any child custody proceeding, in which the defendant does not make an appearance.” Also, 50 U.S.C. § 3932 allows for a stay “to any civil action or proceeding, including any child custody proceeding, in which the plaintiff or defendant at the time of filing an application . . . (1) is in military service or is within 90 days after termination of or release from military service; and (2) has received notice of the action or proceeding.”

d.    IAW 50 U.S.C. § 3938, if a court issues a temporary child custody order based solely on a Servicemember’s deployment or anticipated deployment, that temporary order must expire not later than the period justified by the deployment of the Servicemember. In considering a petition for a permanent modification to a custody order, a court may not consider a Servicemember’s absence due to deployment or potential deployment as the sole factor in determining the best interests of the child. If a state provides higher standards of protections for deploying Servicemembers with regard to temporary child custody orders, a court will apply the higher standards rather than § 3938’s baseline standards.

e.    Soldiers sometimes seek to be married by proxy while deployed. Four states (Colorado, Montana, Texas, and solely for servicemembers abroad, California) allow marriages by proxy or by VTC. Montana permits double proxy marriages.

7.    Consumer law issues.

a.    Be aware of and inform Soldiers of the current consumer scams in the local area and warn Soldiers that dependents may be targeted by unscrupulous businesses during the deployment.

b.    Single Soldiers should forward mail to a trusted family member or friend to look for bills.

c.    Advise Soldiers not to purchase high-priced items during deployments so they do not lay the foundation for a lifestyle beyond their means upon redeployment.

d.    Provide information to Soldiers on the common pitfalls involved with purchasing a car. Educate Soldiers on the proper way to purchase a car, which includes negotiating for not only the cost of the car, but also the cost of the credit to purchase the car, as well as the insurance, maintenance, and emergency repairs.

e.    Provide information on how to properly manage the additional income that comes with a deployment.

f.     Educate Soldiers on the Consumer Financial Protection Bureau’s (CFPB) Office of Servicemember Affairs^[11], and the resources provided by this government agency to our Soldiers.

g.    Judge advocates should seek redress for businesses which violate the consumer rights of Soldiers with the Armed Forces Disciplinary Control Board (AFDCB) with jurisdiction for the affected units. The AFDCB’s authority is broad and may place an off-limits restriction on a business that pursues “unfair commercial or consumer practices.”[12]

h.    Educate Soldiers on their ability to place an active duty credit freeze on their credit reports to prevent the creation of fraudulent accounts while they are deployed.

8.    Tax issues.

a.    Provide information to Servicemembers regarding whether the area is designated a Qualified Hazardous Duty Area (QHDA) or Combat Zone (CZ) for income tax purposes. Servicemembers who are deployed in a QHDA or CZ are eligible for tax relief.

b.    Provide information to Servicemembers regarding extensions of time to file taxes and other delays of tax actions. In general, Servicemembers have 180 days after the later of the Servicemember’s return from deployment to a CZ or the last day of any continuous qualified hospitalization for injury from service in a CZ, plus the number of days that were left for the Soldier to take the action with the IRS when the Soldier entered the CZ. For example, generally, a taxpayer has 3 ½ months (i.e., until April 15) to file his or her tax return. Any days of this 3 ½ month period that were left when a Soldier entered the CZ are added to the 180 days when determining the last day allowed for filing the Soldier’s tax return. See IRS Pub 3, Armed Forces’ Tax Guide at www.irs.gov.

c.    If the IRS sends a notice of examination before learning that the taxpayer qualifies for a deadline extension, the taxpayer should return the notice with “COMBAT ZONE” written across the top. No penalties or interest will be imposed for failure to file a return or pay taxes during the extension period. The deadline for filing tax returns, paying taxes, filing claims for refund, and taking other actions with the IRS is automatically extended if either of the following is true: the Servicemember is in a combat zone or has qualifying service outside of a combat zone, or the Servicemember is a on deployment outside the United States away from his or her permanent duty station while participating in a contingency operation.

9.    Reemployment rights issues (USAR and ARNG).

a.    Army Reserve and National Guard members must receive a USERRA briefing during pre & post mobilization process. They are also required to receive a USERR briefing yearly.

b.    Servicemembers should be briefed on notice requirements, waiver provisions (or the lack thereof), and seniority rights.

c.    Servicemembers should also be briefed on USERRA rights regarding health insurance, reemployment disqualifications (5-year rule), and the Employer Support of the Guard and Reserve (ESGR).

C.    BCT JAs and Chiefs of Client Services should ensure that their offices have an SRP SOP. To tailor the SOP, BCT JAs and Chiefs of Client Services need to be familiar with the installation/unit SRP SOP or operations plan and should coordinate, in advance, with other staff elements. A key issue will be to ensure that the installation/unit plans to conduct the SRP in a suitable location; that is, a location conducive to the delivery of competent and confidential legal services. Some issues to address in the SOP might include:

1.    Establishing the simultaneous administration of the SRP site and the LAO.

2.    Designating the teams of attorneys and paralegal specialists who will staff the SRP site.

3.    Designating the teams of attorneys and paralegal specialists who will staff the LAO during the SRP.

4.    Anticipating whether and how to reschedule LAO hours of operation.

5.    Anticipating whether it will be necessary to suspend the delivery of certain routine legal assistance services during the SRP.

6.    Considering whether RC JAs and paralegal specialists are available for rotations at the SRP site.^[13]

7.    Considering whether RC JAs and paralegal specialists are available for rotations at the LAO.

V. deployment

A.   Legal Assistance issues certainly do not stop during deployment, nor should Legal Assistance services. Brigade Judge Advocates must plan for the delivery of these services. They must determine in advance what resources will be available in theater, what the supported unit will provide, and what, if any, appropriated or contingency funds will be available.

B.    The nature of combat causes legal assistance services to become more urgent in Soldiers’ minds. Legal issues take on significant immediate importance to the client, the command, and the servicing attorney. The provision of legal assistance during combat deployments may occur anywhere within the theater, and JAs should expect to respond to inquiries from Soldiers in-country. All deployed attorneys, regardless of whether the attorney is specifically assigned to a legal assistance position, should anticipate being requested to provide assistance to Soldiers.

C.    Deployed JAs should expect to:

1.    Handle the same legal assistance problems seen in garrison.

2.    Establish liaison with communication, transportation, and aviation elements for contact and courier service with JAs in the rear detachment (the installation from which the deployment took place) and for service throughout the theater.

3.    Establish liaison with the U.S. Consulate at the deployment location for overseas marriage and adoption coordination, and the implementation of emergency leave procedures.

4.    Establish a client tracking system, perhaps in coordination with the rear detachment.

5.    Find a dedicated area to work, with a phone and unclassified internet access. Try to locate an area that allows for confidential discussion.

6.    Answer questions regarding marriage to, or adoption of, foreign nationals.

7.    Handle a high volume of family law issues, including the need to obtain CONUS civilian counsel for clients.

8.    Help Servicemembers apply for citizenship.

9.    Coordinate travel to other locations to provide legal assistance support throughout the area of operations (AO).

10.  Determine which civilian contractors in the AO are eligible to receive legal assistance by reviewing the applicable DoD contracts.

11.  Coordinate for legal assistance coverage when potential conflicts of interest arise within the office providing legal assistance.

12.  Deploying legal sections should coordinate through technical channels to ensure Special Victims Counsel  (SVC) coverage during the deployment.  

D.   Deployed JAs should plan on delivering tax assistance in theater. Although family members can file tax returns at the home station with POAs, JAs in theater will probably need to produce an information paper addressing basic tax issues, including a discussion of filing extensions. Both JAs and paralegals should obtain tax training before deployment.

VI. RECURRING Substantive Deployment Legal Assistance Issues

A.   Family Care Plans (FCP).^[14]

1.    Army Regulation 600-20 requires single parent Soldiers, Soldiers living apart from their spouse, and dual military couples with minor children to implement a FCP to provide for the care of their family members when military duties prevent the Soldier from doing so.^[15] Plans must be made to ensure dependent family members are properly and adequately cared for when the Soldier is deployed, on TDY or otherwise not available due to military requirements. Commanders have the responsibility to ensure Soldiers complete FCPs.

2.    Significant problems have arisen when the caretaker designated in the FCP is not the other biological parent of the minor children. A biological parent has, absent other considerations, superior custodial rights over others the Soldier-parent may wish to designate in a FCP. There have been several cases where a non-custodial biological parent has sought to exercise parental rights while the Soldier is deployed. Soldiers have unsuccessfully attempted to defend against such lawsuits by invoking the SCRA. Several states have passed laws protecting a Soldier-parent’s custodial rights when a deployment disrupts them. Also, through the 2015 National Defense Authorization Act, Congress amended the Servicemembers Civil Relief Act to include a provision requiring that temporary child custody orders based solely on a Servicemember’s deployment or anticipated deployment will expire upon the servicemember’s redeployment.

3.    Family care plans are not effective in preventing judicial scrutiny of the Servicemember’s proposed custodial arrangement. If deploying Soldiers wish to place their children in the custody of someone other than the other biological or adoptive parent of the child, this should be accomplished by executing an agreement that is judicially reviewed for appropriateness, or by securing a court order to that effect. Recognizing these problems and resolving them before deployment is critical to success with this issue and Soldier readiness.

B.  Naturalization and Immigration.

1.    Naturalization: Becoming a U.S. Citizen.

a.    Expedited Naturalization of Non-U.S. Citizen Servicemembers.

(1)  Eligibility. Waivers of age, lawful permanent resident status, and physical presence requirements are available for non-citizens who wish to apply for U.S. citizenship and who served honorably during WWI, WWII, the Korean War, Vietnam,^[16] Operations Desert Shield/Desert Storm,^[17] or any subsequent period of armed conflict designated by presidential executive order.^[18] This benefit is currently in effect for Servicemembers on active duty for any period since 11 September 2001^[19]; however, judge advocates should be aware that this benefit will expire upon the President’s issuance of a new Executive Order terminating the designation. Upon expiration, Servicemembers can still obtain a waiver for physical presence requirement of the naturalization, provided the Servicemember served honorably for one year and applies for naturalization while in service or within six months of separation.^[20]

(2)  Process. To begin the naturalization process, with service designated representative’s assistance, a Servicemember must complete naturalization forms N-400 and N-426, have biometrics taken, prepare supporting documents, and submit the packet to the U.S. Citizenship and Immigration Services (USCIS) in accordance with form instructions. Deploying or overseas Servicemembers may request overseas processing of naturalization.

b.    Naturalization of Deceased Servicemembers. A non-citizen Servicemember who served during a designated period of armed hostilities^[21] and died due to service-related injury or disease qualifies for posthumous U.S. citizenship.^[22] The next of kin or Secretary of Defense (or the service designee to the USCIS) with next of kin’s consent must apply within two years of servicemember’s death by filing naturalization form N-644 to the California Service Center pursuant to form instructions.^[23] Posthumous citizenship will provide surviving non-citizen spouse or dependents with a special immigration or naturalization benefit.^[24]

c.    Naturalization of Servicemember’s Non-U.S. Citizen Spouse and Dependents.

(1)  A spouse of U.S. citizen Servicemember who will deploy or be stationed overseas will be eligible for an expedited naturalization process, waiving period of residence and physical presence requirements.^[25]

(2)  A surviving spouse, child, or parent of a U.S. citizen Servicemember (including posthumous naturalized citizen) who served honorably during a designated period of armed hostilities and died due to service-related injury or disease is eligible for naturalization process, waiving period of residence and physical requirements.^[26]

(3)  Since 2008, a lawful permanent resident spouse who resides with the Servicemember-spouse abroad under official orders is eligible for overseas naturalization processing.^[27]

(4)  A foreign born, biological or adopted child of U.S. citizen Servicemember is eligible for U.S. citizenship automatically when the child is a lawful permanent resident of the United States, is under the age of eighteen, and resides in the United States.^[28] If the foreign born child resides abroad, such child is eligible for overseas naturalization when the child is under the age of eighteen and the U.S. citizen parent meets certain physical presence requirement in the United States.^[29] These benefits do not apply to a step child of a U.S. citizen Servicemember.^[30]

2.    Immigration: Becoming a Lawful Permanent Resident (“Green Card Holder”).

a.    Servicemember’s Marriage to a Foreign Citizen. Provided service policy^[31] on marrying a foreign citizen abroad is met, a Servicemember may sponsor a foreign fiancé(e) for K-1 nonimmigrant visa^[32] before marriage in the United States or may sponsor a foreign spouse for immigrant visa^[33] after marriage abroad. Both situations will require USCIS approval of the visa petition and the servicing consular office’s issuance of the visa.^[34] If the foreign spouse is in the United States and the Servicemember is a U.S. citizen, the servicemember can apply for an immigrant visa and the foreign spouse can apply for lawful permanent resident status simultaneously through USCIS.^[35] The foreign spouse of a non-citizen Servicemember has similar benefit but is of a lower preference.^[36]

b.    Servicemember Sponsoring Foreign Relatives. Servicemembers may sponsor most foreign relatives for immigrant visa or adjustment of status; however, the processing time is dictated by Servicemember’s citizenship status, visa numbers available to the foreign relative’s country, and degree of family relationship.^[37]

c.    Deferred Action for Childhood Arrivals (DACA). This benefit is prosecutorial discretion exercised by U.S. Department of Homeland Security to defer eligible illegal immigrants from being removed (deported) for a period of two years, which is renewable. It does not provide lawful status in the United States, but provides the eligible illegal immigrants work authorization.^[38] The benefit contemplates Servicemembers who may not have lawful status and provides a specific category of eligibility for having served in the armed services.^[39]

C.    Casualty Assistance and Survivor Benefits.

1.    Casualties may occur on deployment and at home station. When casualties occur, the SJA elements, both on the exercise/deployment and with the rear detachment, must assist the Soldier’s next of kin, the command, and the Casualty Assistance Officer (CAO).

2.    The many issues that attend the death of a Soldier are as follows: reporting the casualty; notifying the next of kin; appointing a CAO and providing legal advice to that officer; disposing of the remains, including a possible autopsy; advising the next of kin concerning their legal rights and benefits; appointing a summary-court officer; and conducting a line of duty investigation. Accordingly, pre-deployment preparation is essential.

a.    Familiarity with the Army’s casualty regulation, AR 638-8, is vital.

b.    Judge advocates will become involved in helping the next of kin of Soldiers missing in action or taken prisoner. The DoD pay manual is something that the judge advocate must understand.^[40] Judge advocates should also be prepared to brief surviving Family members on survivor benefits.

c.    Prior to deployment, Soldiers should be encouraged to review their DD Form 93 (Record of Emergency Data) closely. This form designates beneficiaries of pay and allowances, might designate the Death Gratuity beneficiary (Block 9a; if no spouse or children), and designates the Person Authorized to Direct Disposition (PADD) of remains (Block 13, Continuation/Remarks block).^[41]

D.   Servicemembers Civil Relief Act (SCRA).^[42]

1.    Overview. The SCRA provides several substantive benefits and procedural protections to members of the Armed Forces on active duty including members of the USAR and NG in certain circumstances.[43] Some of these benefits and protections are extremely important during exercises, deployments, and times of mobilization. LAAs must familiarize themselves with the following SCRA issues, at a minimum, and be prepared to assist Servicemembers in resolving those issues.

2.    Interest rate reduction.^[44]

a.    Soldiers who are mobilized from the RC, and those who join the Army from civilian life, may reduce the interest on liabilities incurred prior to entry on active duty to six percent.

b.    Creditors may obtain relief in certain circumstances.

3.    Rental property protections.

a.    Eviction.^[45]

(1)  Soldiers and dependents may not be evicted from rented housing except pursuant to a court order.

(2) This protection is available when the amount of rent does not exceed $4,214.28 per month.^[46] This amount changes every year.

(3)  When a Soldier’s military service affects his or her ability to pay rent, and the Soldier applies for a stay, the court must stay the eviction proceedings for a period of 90 days.

b.    Lease termination.^[47]

(1)  The SCRA allows Soldiers upon entry to active duty to terminate their “residential, professional, business, [and] agricultural” leases executed prior to entry to active duty.

(2)  Soldiers also may terminate their leases when they undergo a permanent change of station or when they are deployed “for a period of not less than 90 days.”

(3) Importantly, the lease is not terminated immediately. The effective date of the lease termination is thirty days after the scheduled rent payment due date following the date notice was provided to the landlord under the SCRA. For example, in leases where rent is due on the 1st of the month, a Servicemember that provides notice between 1-31 May could terminate the lease on 1 July (notice provided between 1-31 May, the next rent due date is 1 June, the lease may terminate on 1 July which is 30 days after 1 June).  

4.    Automobile leases. ^[48]

a.    Soldiers may terminate their automobile leases when they are transferred from bases within the continental United States (CONUS) to locations outside the continental United States (OCONUS). Soldiers may also terminate automobile leases when they transfer from OCONUS locations to another OCONUS location or back to CONUS.

b.    Soldiers also may terminate their automobile leases when they “deploy with a military unit for a period of not less than 180 days.”

5.    Cell phone contract termination/suspension. ^[49]

a.    Soldiers may terminate or suspend a cell phone contract when they relocate for a period of not less than 90 days to a location that does not support the contract.

b.    Soldiers must have entered a contract prior to receiving orders. Family plans are contemplated. Legal assistance attorneys must analyze each situation.

6.    Television and internet termination/suspension.^[50]

a.    As a result of changes to the SCRA in Public Law 115-407, the Veterans Benefits and Transition Act (VBTA) of 2018, Soldiers may now also terminate or suspend a television or internet contract when they relocate for a period of not less than 90 days to a location that does not support the contract.

b.    Soldiers must have entered a contract prior to receiving orders. Family plans are contemplated. Legal assistance attorneys must analyze each situation.

7.    Stays of proceedings.^[51]

a.    Soldiers may seek to have litigation before civil judicial and administrative proceedings stayed when their military service materially affects their ability to participate in the litigation.

b.    The stay may be granted on the court’s own motion and shall be granted for a period of 90 days upon a motion by the Soldier.

c.    The application for the stay must include a letter from the Soldier establishing that the current military service materially affects the Soldier’s ability to participate in the litigation. The Soldier must also provide a date when he or she will be able to appear in court.

d.    The application must also include a statement from the Soldier’s commander stating that the Soldier’s military service precludes attendance, and that leave is currently not authorized for the Soldier.

8.    Mortgage Protections.^[52]

a.    Applies to purchases of real or personal property that a Servicemember makes prior to entry on active duty that are secured by a mortgage or trust deed.

b.    Court order required for foreclosure: If a Servicemember breaches the obligation, a sale, foreclosure, or repossession action is not valid unless there is a court order or a waiver from the Servicemember.

c.    As of 6 Aug 12, the protection extends for nine months beyond the period of active duty.

E.    Uniformed Services Employment and Reemployment Rights Act of 1994.

1.    USERRA^[53] protects Reserve Component Servicemembers from discrimination in the workplace and affords Servicemembers the right to return to their civilian employment following periods of military service. USERRA also provides for other employment related protections for Servicemembers.^[54]

2.    To take advantage of reemployment rights, the Servicemember must provide his or her employer with notice of the pending absence.^[55] Periods of absence, per employer, must not exceed five years,^[56] and the service must be characterized as “honorable” or “under honorable conditions.”^[57] For any type of military service (inactive duty training or active duty) up to 31 days,” the servicemember must report back “not later than the beginning of the first full regularly-scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight hours after a period allowing for the safe transportation of the person from the place of that service to the person’s residence.”^[58] If the absence is for a longer period, the Servicemember must make an “application” for reemployment within specified times.^[59]

3.    USERRA provides that employers must promptly reinstate their returning Servicemembers to the same, or like, position that they left, including any accrued seniority.^[60] They also must attempt to qualify the Servicemember for the return to the position, if such re-qualification is necessary as a result of the person’s absence for military service.^[61]

4.    Servicemembers who experience difficulties with employers may find that the volunteer services of local ombudsmen from the National Committee for Employer Support of the Guard and Reserve (ESGR) will prove useful.

5.    LAAs must be cautious when providing assistance on such matters. The Department of Labor and Department of Justice may not undertake a Servicemember’s representation if that Servicemember has been previously represented by counsel. Notwithstanding the limits of the Legal Assistance Program, a client could encounter problems later when seeking in-court representation from the Departments of Labor or Justice.^[62] That said, providing briefings to groups of Soldiers regarding USERRA, referring clients to the Department of Labor’s Veterans’ Employment and Training Service (VETS) or the ESGR, and even following up with VETS should not present a problem for a Servicemember who later decides to seek in-court representation.^[63]

VII. CONCLUSION

A.   Legal Assistance is an essential JA mission. It becomes critical during exercises, deployments, and combat operations. This chapter has examined some of the issues relevant to the successful delivery of this important service.

B.    Checklists for supplies and other resources follow.

C.    Several resources exist for deployed JAs who require expertise from civilian practitioners with expertise in a particular area of the law or jurisdiction. Many civilian practitioners will assist Servicemembers on a reduced fee or pro bono basis.

1.    The American Bar Association (ABA)’s Standing Committee on Legal Assistance for Military Personnel (LAMP) has two initiatives aimed at assisting deployed servicemembers, through military legal assistance counsel, with legal problems. Operation Enduring LAMP and the ABA’s Military Pro Bono Project are both available at: https://www.americanbar.org/groups/legal_services/

2.    The George Mason University School of Law runs the Clinic for Legal Assistance to Servicemembers and accepts applications from military members. Information is at https://mvets.law.gmu.edu/.