Late last year, two Staff Sergeants (SSG) and one Sergeant (SGT) were selected for the Funded Legal Education Program (FLEP)—the first time in history that noncommissioned officers (NCOs) have been chosen to attend law school at Army expense. This is an important historical first in our Corps because it is the first time that enlisted men and women have been eligible to earn a law degree at Army expense and then serve as judge advocates (JAs). It is also significant because expanding the program to qualified NCOs demonstrates that the Judge Advocate General’s (JAG) Corps—like our Army—is committed to ensuring that every career-oriented Soldier has the same opportunities. What follows is a short discussion of the history of the program and a quick look at the three Soldiers chosen to be the first NCO FLEP participants.
History of the Funded Legal Education Program
Beginning in the 1930s, the Army sent a handful of line officers to law school to earn a degree. Most of these individuals—like Ernest M. “Mike” Brannon who later served as the Judge Advocate General (TJAG)—were destined to teach in the Law Department at the U.S. Military Academy because it was thought that a law degree would make them better professors. In the years immediately following World War II,1 the Army also sent a small number of line officers to law school with the intent that they earn law degrees and then practice law as members of the JAG Corps. Then-Captain Wilton Persons, for example, was a West Point graduate and Armor Cavalry officer who attended Harvard Law School at Army expense; he too would serve as TJAG before retiring as a major general in 1979.
In the early 1950s, Congress decided that it was too expensive to use taxpayer dollars for active duty personnel to attend law school. Consequently, starting with fiscal year 1953, the Army was prohibited from using taxpayer funds to send line officers to law school.2
In 1961, the Army developed an alternative to the lack of law school funding when it established the Excess Leave Program (ELP). By Army regulation, “career-motivated officers from other branches” were permitted to take extended leave for up to three-and-a-half years to attend civilian law school and study to pass the bar exam. In this leave status, these officers received no pay and allowances and paid for all their tuition and fees. However, the ELP participants accrued time in grade for pay and promotion purposes. By 1965, the Corps had 144 officers in the program. There were 128 officers in the ELP in 1971. As these officers earned their law degrees and began serving as JAs, they formed the backbone of the Corps’s middle-management ranks.3
While the ELP worked well enough (the Corps had authority to take some 100 officers into the program every year), the Army still struggled to retain talented officers in all branches in the 1970s. This was because interest in military service was relatively low after the very unpopular Vietnam War and because the end of conscription and the transition to an all-volunteer Army made both recruiting and retention a difficult mission. In the JAG Corps, the biggest challenge was retaining mid-grade officers—senior captains and majors—and the Army concluded that resurrecting a taxpayer funded law school program would help solve this problem. Congress agreed and Senator Barry Goldwater (Republican-Arizona) introduced legislation in early 1973 that was enacted the following year as the “Funded Legal Education Program.”4
As the April 1974 Army Lawyer explained, every year FLEP allowed up to twenty-five active duty commissioned officers to be selected to attend law school. Officers were eligible for the program if they were serving in the grade of O-3 or below, had a baccalaureate degree, and had between two and six years of active duty service. Those selected for the program would have tuition and fees paid and would also receive full pay and allowances while in law school. In return, they agreed to a six-year active duty obligation upon completion of the program.
Initially, the ELP continued to operate concurrently with FLEP, but the JAG Corps soon recognized that FLEP was a sufficient manpower source. Consequently, the ELP was discontinued in 1975.5
The First NCO FLEPs
For more than forty-five years, only commissioned officers have been eligible for the FLEP; enlisted personnel—by statute—could not take advantage of this educational opportunity. How and why did this restriction originate? Why were enlisted personnel ineligible? There are several explanations. The Army of the early 1970s was not the educated force of today. More than a few officers did not have college degrees (there were thousands who earned commissions through Officer Candidate School, which required only a high school diploma). Also, there was no requirement for enlisted personnel to have a high school degree, much less any college or university education. Additionally, civilian education was not important for promotion in the enlisted ranks. This all meant that relatively few NCOs on active duty would have been eligible when the FLEP was established, and this is one reason that they were left out of the 1970s legislation. A second reason is that, as the JAG Corps’s intent was for the FLEP to stabilize its middle-management officer ranks, it probably believed that drawing from the commissioned officer population was the easiest course of action.
Finally, it is likely that institutional bias played a role in that, when the Army and Congress were creating the FLEP, these institutions did not recognize that qualified NCOs also deserved the opportunity to attend law school. Fifty years ago, the gulf between the enlisted and officer ranks was much more pronounced than it is today—at least in terms of education. Additionally, the idea that every NCO should have the same education opportunities as commissioned officers was not a widely-held view. As a result, NCOs were excluded when it came to program eligibility.
Remember that the Army in the early 1970s was gender segregated (women served in a separate Women’s Army Corps) and it was not until 1976 that women had the same educational opportunities as men to earn a degree at the U.S. Military Academy. The point is, Army culture of the 1970s was much more limited when it came to educational opportunities. Even today, it is only very recently that female Soldiers have been permitted to attend Ranger School and the Special Forces qualification course.
Recognizing that it was time to give qualified NCOs who wanted to serve as JAs the opportunity to participate in the program, Congress amended the controlling legislation in December 2019. As a result, NCOs in all the “military departments . . . in paygrades of E-5 to E-7” (Sergeant to Sergeant First Class in the Army), with between four and eight years of active duty service, are now eligible to participate in the program.6
At its core, this expanded eligibility reflects the realization that our Corps must attract the best junior leaders to serve as JAs—men and women who are “confident, humble, innovative peer leaders” and who are “committed to the Army team.”7 Additionally, just as the Basic Branch experiences of officer FLEPs enhance their value as JAs in the Corps, so too will the enlisted experiences of NCO FLEPs.
More than twenty NCOs applied for the 2020-2021 FLEP, and three were selected: SSG Perla Gonzalez, SSG Michael Smith, and SGT Kathryn Matthews.
SSG Perla Gonzalez
Staff Sergeant Perla Gonzalez enlisted in 2013 and serves as a Biomedical Equipment Specialist in Military Occupational Specialty (MOS) 68A. A Soldier in that MOS is responsible for performing repairs on medical systems and medical equipment. Staff Sergeant Gonzalez is now serving in Vilseck, Germany. She earned her Bachelor of Arts degree in Law and Society from the University of California-Santa Barbara. Staff Sergeant Gonzalez also has a Master of Arts degree. In her words, she “wanted to apply to law school for years, but it was never the right time.”8 The Funded Legal Education Program will let her “merge [her] love for the Army with [her] love for the law.”9 Staff Sergeant Gonzalez has applied to a variety of law schools, including the University of California-Hastings, University of California-Davis, Stetson University, and Baylor University.10
SSG Matthew Smith
Staff Sergeant Matthew Smith is a MOS 27D Paralegal Specialist. He graduated from the University of Central Florida with a degree in legal studies in 2003. Smith then enlisted in the Army in 2013. He served as an administrative law paralegal at U.S. Army Pacific and as the military justice operations NCO at 8th Theater Sustainment Command. He is a qualified court reporter and now serves as the Clerk of Court, 3d Judicial District, III Corps, and Fort Hood. He will attend law school at the University of Hawaii. Becoming a lawyer has been a “childhood dream” for SSG Smith, and the program will let him become an attorney and JA.11 It will “enable [him] to continue leading the Soldiers [he has] come to love.”12
SGT Kathryn Matthews
Sergeant Kathryn Matthews earned a Bachelor of Arts degree in Anthropology and Political Science at Arizona State University in 2015, and enlisted in the Army in MOS 27D in 2017. She now serves as a Paralegal Specialist at U.S. Army Central Command, Shaw Air Force Base, South Carolina. Sergeant Matthews has “been working towards becoming a judge advocate since before [she] enlisted,” and the program will let her achieve this goal.13 At the time she applied for the program, SGT Matthews had been accepted to Officer Candidate School (OCS). She gave up her OCS slot to apply for the FLEP—which turned out to be a good decision for her and our Corps.14
Since the goal of the FLEP is to allow deserving Soldiers with superb educational qualifications and demonstrated leadership skills to serve as JAs, it made perfect sense for Congress to amend the law to open the educational opportunity to mid-grade NCOs in all Army military occupational specialties. There is no doubt that there will be more NCOs selected for the program in the future, but the three selected in 2020 will forever be a JAG Corps history first.
Mr. Borch is the Regimental Historian, Archivist, and Professor of Legal History and Leadership at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.
1. During this time the Judge Advocate General’s Department was transformed into the Judge Advocate General’s Corps.
2. National Security Training Commission: Salaries and Expenses, Pub. L. No. 488, § 636, 66 Stat. 537 (1952).
3. Judge Advocate General’s Corps, The Army Lawyer: A History of the Judge Advocate General’s Corps 238 (1975); Excess Leave, Army Law., Nov. 1971, at 27.
4. Goldwater Bill for Law School at Government Expense, Army Law., June 1973, at 35; 10 U.S.C. § 2004 (1974).
5. JAG Corps RA Strength Approaches Authorized Level, Army Law., Dec. 1975, at 39.
6. 10 U.S.C. § 2004 (1974); National Defense Authorization Act for Fiscal Year 2020, Pub. L. 116-92, § 551(a),§ 551(b)(2), 133 Stat. 1385-86 (2019).
7. Memorandum from Pers., Plans &Training Off., Off. of The Judge Advocate Gen. to Staff Judge Advocates, subject: Funded Legal Education Program (July 31, 2020).
8. Email from Staff Sergeant Perla Gonzalez to author (2 Feb. 2021) (on file with author).
10. Id. For more on SSG Gonzalez’s incredible journey, see Joseph Lacdan, Once Homeless, NCO Gets Rare Shot to Attend Law School Under Army Program, U.S. Army (Mar. 1, 2021), https://www.army.mil/article/243136/once_homeless_nco_gets_rare_shot_to_attend_law_school_under_army_program.
11. Email from Staff Sergeant Matthew Smith to author (2 Feb. 2021) (on file with author).
13. Email from Sergeant Kathryn Matthews to author (2 Feb. 2021) (on file with author).