Military Law Newsletter - Spring 2013
The Meaning of “Military Service”: Understanding the Touchstone for Protections Under the Servicemembers Civil Relief Act
by Captain Eric M. Liddick
In 2003, Congress enacted the Servicemembers Civil Relief Act (the “SCRA”),1 thereby amending and renaming its predecessor, the Soldiers’ and Sailors’ Civil Relief Act of 1940. In doing so, Congress reaffirmed its desire to “provide for, strengthen, and expedite the national defense through protection extended . . . to servicemembers of the United States to enable such persons to devote their entire energy to the defense needs of the Nation.”2
Under the SCRA the Servicemember is afforded protections against tolling the statutes of limitations, for limiting interest rates, for restricting the eviction process, for an absolute stay in civil suits, among others.3 These protections remain as relevant today as in the 1940s and Servicemembers rely upon the provisions contained therein to postpone, remedy, or eliminate the many stressors that preclude devotion of their energy to the common defense.
The SCRA’s stated purpose, though, highlights the touchstone for these protections: service in defense of our Nation, or, to use the SCRA’s term, “military service.” Indeed, the use of military service in the SCRA is pervasive, serving as the primary catalyst for a variety of protections. But what exactly constitutes military service? Despite seemingly obvious answers, as well as the statutory definition, this term has generated much debate.
The consternation resulting from the term “military service” can best be exemplified by the following hypothetical: Jane Doe enlists in the military on June 1st. On June 15th, Jane enters into a six-month residential lease. On June 16th, Jane learns that she must report for basic training on August 15th. Being the educated young woman that she is, Jane immediately informs her landlord – in writing, of course – that she will invoke the SCRA and terminate the lease effective July 31st. Jane also provides a copy of a document identifying her report date of August 15th. The landlord insists that Jane cannot terminate the lease under the SCRA; that is, Jane was already in the military service when she executed the lease, and Jane’s orders are not for a permanent change of station or to deploy in support of a military operation for ninety days or more.4 Jane disagrees, suggesting that she executed the lease before she entered the military service, therefore allowing her to terminate the lease without more.5 Under this scenario, who must prevail?
One can see that the meaning of military service plays an important role in invoking lease termination rights under the SCRA. But the section concerning residential leases is not the only section of the SCRA that points to military service. Provisions tolling the statutes of limitation, limiting interest rates, and restricting the eviction process, among others, each depend upon military service to identify, modify, or otherwise limit the scope of the protections provided.6
Fortunately, the SCRA defines military service; unfortunately, that definition affords little clarity to those with no military experience. Section 511 defines military service as “active duty, as defined in section 101(d)(1) of title 10, United States Code,” and includes any period during which a servicemember is absent from duty on account of sickness, wounds, leave, or other lawful cause.”7 “Active duty,” in turn, means, “full-time duty in the active military service of the United States.”8 This includes “full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned,” but does not include “full-time National Guard duty.”9
This definition induces vertigo, requiring near constant flipping between titles and sections in a desperate attempt to understand the temporal origin of or window for the protections. Returning to the hypothetical from above, many attorneys find themselves in no better position notwithstanding the supplied statutory definition: The landlord will argue that Jane entered military service the day she signed her enlistment contract; Jane will argue that she entered military service when she reported for basic training. Without more in the way of knowledge or jurisprudential support, an attorney may be left scratching her head.
Nor is this an academic exercise. In the hypothetical presented, the answer can have significant, detrimental consequences. If Jane is incorrect, that is, if her military service began on the date she enlisted, then Jane will breach the lease through early termination without any overhead cover from the SCRA. This could result in liability for future rent, damages, and court costs. If Jane cannot afford those payments, she could suffer damage to her credit (or loss of her security clearance) when the unpaid judgment appears on her credit report. And, to make matters worse, if Jane develops a poor reputation as a tenant, future landlords may be hesitant to rent to her or may do so only with larger deposits.
Fortunately, courts considering other SCRA sections have addressed this definitional dilemma. For example, in Lazarski v. Archdiocese of Philadelphia,10 a panel for the Pennsylvania Superior Court considered the distinction between an “enlistment date” and “military service” in determining the date when a statute of limitations tolled under the SCRA. Examining the SCRA’s definition of military service and its citation to “active duty” in Title 10, Judge Popovich, writing for a unanimous panel, concluded that tolling does not begin with the date of enlistment, but rather with the date upon which the servicemember began active service: “The short answer . . . is that nowhere does the SCRA provide that its tolling protections are triggered by ‘enlisting.’ Instead, the SCRA expressly points to ‘active duty’ as the touchstone activating its tolling provisions.”11
Similarly, in Donahou v. Presidential Limousine and Auto Sales, Inc., Judge Dawson of the Western District of Arkansas concluded that enlistment in the Delayed Entry/Enlistment Program (DEP) did not constitute “active duty” for SCRA purposes; rather, active duty begins on the date that a servicemember must report for duty. There, the plaintiff, Andrew Donahou, had purchased a vehicle after enlisting, but before reporting for duty.12 When Donahou defaulted on the loan, the defendant, Presidential Limousine, repossessed the vehicle, but without a court order. Donahou sued, alleging that Presidential Limousine violated the SCRA.
Presidential Limousine argued that Donahou entered military service before he purchased the vehicle, thereby rendering the SCRA inapplicable. Presidential Limousine pointed to the definition for military service under the SCRA, which also includes “any period during which a servicemember is absent from duty on account of sickness, wounds, leave, or other lawful cause,” and argued that Donahou’s enlistment in the DEP constituted “leave, or other lawful cause” since the time spent in the DEP counted toward’s Donahou’s service obligation.13 The court disagreed. First, Judge Dawson noted that the concerns outlined in the SCRA only surface when an individual is on active duty.14 Further, none of the indicia of active duty were present after Donahou’s enlistment: He had no military identification, had received no uniforms, and “was not otherwise prepared for any military duties.”15 Finally, principles of statutory construction dictated a contrary conclusion. Section 511(2)(C) specifically references “sickness” and “wounds.”16 These specific designations define the later, more general, catch-all category of “other lawful cause.” This more general category, however, cannot be so expansively read as to include the DEP when the previous terms – sickness, wounds, leave – imply “an exemption from active duty, not an exemption before a servicemember’s active duty has begun.”17 As such, the SCRA protections applied; Donahou had purchased the vehicle before entering military service.18
Occasionally parties attempt to argue that a servicemember must be deployed overseas to be considered “in the military service” and therefore protected by the SCRA. This argument, too, misses its mark. The SCRA endeavors to protect all servicemembers so that they might devote their energy to the common defense, regardless of the servicemember’s geographic location or role performed.
The United States Court of Claims considered this argument in Bickford v. United States.19 There, the Government argued that Congress intended the SCRA to extend only to servicemembers “engaged in battle or who are otherwise handicapped from asserting their legal claims.”20 The en banc Court disagreed, suggesting that the Government had selectively read pieces of legislative history.21 The Court instead held that the servicemember, who had not been “engaged in battle or . . . otherwise handicapped,” was entitled to SCRA protection from “the date he was ordered to report” to his respective duty assignment.22
The difficulty in determining the date of entry into military service in the active component context becomes all the more complicated when one considers reserve component servicemembers. As noted above, the definition of active duty under Title 10 excepts “full-time National Guard duty.”23 This results from the National Guard’s unique role as both state militia and armed force of the United States. When engaged in state active duty under Title 32, members of the National Guard generally are not on active duty for SCRA purposes.24 But when those same Soldiers serve as members of the National Guard of the United States under Title 10, they fall within the definition of active duty and receive SCRA protections.25
A reserve member, on the other hand, enters military service when he or she serves on active duty as defined in Title 10. But unlike their active component brethren, the beginning of military service commences upon receipt of the orders to report for military service rather than the date that the servicemember must report to his or her duty location.26
Of course, determining when military service begins is only half the battle. Problems also arise in determining when military service terminates for SCRA purposes.27 According to Section 511, the period of military service ends when the “servicemember is released from military service or dies while in military service.”28 Again the SCRA perplexes its implementers.
What if a servicemember is placed on a temporary disability retired list to await a medical retirement? Has placement on the list acted as a discharge from military service? In 1988, a panel for the United States Court of Appeals, Tenth Circuit, answered in the negative, concluding that a servicemember’s placement on a temporary disability retired list served as an absence “on account of sickness.”29 The panel, therefore, extended the SCRA protections until the servicemember was permanently retired.30 The panel’s decision, however, remains subject to dispute. Other courts, including the Federal Circuit, have determined that placement on the temporary disability retired list is “akin to inactive duty or retirement, as opposed to ‘active service.’”31
What about Servicemembers convicted by court-martial, stripped of pay and allowances, and sentenced to confinement? Has their military service terminated? In 2007, Judge Block of the United States Court of Federal Claims issued an explosive opinion in Lowe v. United States, wherein he concluded that a Servicemember confined in a military confinement facility after conviction at court-martial, but before execution of the punitive discharge, remains in the military service for SCRA purposes.32 Under the particular facts at issue, Judge Block noted that the plaintiff, Cortrell Lowe, found himself in military custody while in military confinement.33 According to Judge Block, Lowe’s confinement was “service-connected.”34
The result in Lowe, though, comports with basic principles concerning discharge or release. Under 10 U.S.C. § 1168, a Servicemember cannot be discharged “until his discharge certificate or certificate of release from active duty, respectively, and his final pay or a substantial part of that pay, are ready for delivery to him[.]”35 Thus, until the moment when these events merge, an individual remains in the military service and entitled to SCRA protections.36 And in Lowe, the nature of the confinement, coupled with the fact that neither Lowe’s DD Form 214 nor his final pay was ready, lent itself to a conclusion permitting continued application of the SCRA.37
While the above discussion is by no means exhaustive, it highlights the confusing, and sometimes unsettled, meaning of military service for SCRA purposes. Still, given this discussion, what then comes of Jane’s dispute with her landlord? In short, Jane must prevail. She did not enter military service until she reported to basic training; that is, she entered military service after executing her lease. Nor would this conclusion differ were Jane a member of the Reserves as Jane received her orders the day after entering into the residential lease.
We should never forget, though, that determining the beginning and end of military service under the SCRA requires an understanding of the military context, the nature of orders and discharges, and a firm appreciation for the facts. And while the SCRA “must be read with an eye friendly to those who dropped their affairs to answer their country’s call”38 and shoulder “the burdens of the nation,”39 an advocate who firmly grasps the meaning of military service will better serve his or her client: Ensuring compliance with federal law, and thereby avoiding unnecessary litigation, costly penalties, and public embarrassment (for contesting parties), or by promoting Servicemember rights and effectuating the SCRA’s protections (for Servicemembers). In this way, the advocate will do his or her part to not only advance the rule of law, but also to “strengthen and expedite the national defense.”40
*Judge Advocate, U.S. Army. The opinions expressed here are those of the author and do not reflect the opinions of the Department of Defense, the Department of the Army, or The Judge Advocate General.
1 Servicemembers Civil Relief Act, 50 U.S.C. App. §§ 501-597b (2011)
2 Id. § 501(1).
3 See, e.g. §§ 521 (protecting against default judgments), 526 (tolling of statutes of limitation), 527 (limiting interest rates), 531 (evicting Servicemembers) and 522 (stay of proceedings).
4 See id. § 535(b)(1)(B).
5 See id. § 535(b)(1)(A).
6 See, e.g. §§ 521 (protecting against default judgments), 526 (tolling of statutes of limitation), 527 (limiting interest rates), and 531 (evicting Servicemembers).
7 Id. § 511.
8 10 U.S.C. § 101(d)(1) (2006).
10 926 A.2d 459 (Pa. Super. Ct. 2007).
11 Id. at 469. Admittedly, however, one can locate other decisions that deviate from the majority because of misunderstandings, inarticulateness, or poor lawyering. See, e.g., Mai v. United States, 22 Cl. Ct. 664, 669 (Cl. Ct. 1991) (tolling the statute of limitations between “the date of plaintiff’s enlistment” and the date plaintiff retired, but failing to articulate whether the plaintiff enlisted and reported for duty on the same day).
12 No. 06-6070, 2007 WL 1229342, **1 & 2 (W.D. Ark. Apr. 24, 2007).
13 Id. (quoting 50 U.S.C. App. § 511(2)(C)).
16 50 U.S.C. App. § 511(2)(C).
17 Donahou, 2007 WL 1229342 at *2.
18 Id. Cf. Whigham v. Chase Auto Fin. Corp., 826 F. Supp. 2d 914 (E.D. Va. 2011) (refusing to apply the SCRA where Servicemember purchased the vehicle after entering active duty).
19 656 F.2d 636, 640-41 (Ct. Cl. 1981).
20 Id. at 640.
23 10 U.S.C. § 101(d)(1).
24 There are, of course, exceptions. Where a member of a state National Guard is ordered to active duty for more than thirty days, “under a call to active service authorized by the President or the Secretary of Defense . . . under section 502(f) of title 32, United States Code,” and in response to a national emergency funded by federal money, then the Servicemember receives protections under the SCRA. 50 U.S.C. App. § 511(2). See, e.g., Bowen v. United States, 292 F.3d 1383, 1386 (Fed. Cir. 2002) (affirming lower court holding that annual two-week training for National Guard member did not qualify to toll statute of limitations); Miller v. Village of Lincoln Heights, 967 N.E.2d 255, 257-58 (Ohio Ct. App. 2011) (discussing plaintiff’s failure to distinguish between his title 32 and title 10 service); and Gutridge v. Suburban Steel Supply Co., No. 2007 CA 00110, 2008 WL 2953662, *3 (Ohio Ct. App. 2008) (concluding that annual training did not qualify as “active duty”).
25 See, e.g., Bowen, 292 F.3d at 1386 (affirming lower court holding that annual two-week training for National Guard member did not qualify to toll statute of limitations); Miller, 967 N.E.2d at 257-58 (discussing plaintiff’s failure to distinguish between his Title 32 and Title 10 service); and Gutridge, 2008 WL 2953662 at *3 (concluding that annual training did not qualify as “active duty”).
26 See 50 U.S.C. App. 516(a).
27 Note, however, that not all SCRA provisions cease to apply with the termination of military service; instead, many SCRA protections extend beyond the period of military service or the end of active duty. See, e.g., id. §§ 521(g)(1) (extending authority for court to vacate default judgment entered within sixty days of release from military service); 522(a)(1) (authorizing Servicemember to request a stay of proceedings up to ninety days after release); and 527(a)(1)(A) (prohibiting interest rate exceeding six percent during military service and for one year thereafter).
28 Id. § 511(3).
29 Mason v. Texaco, Inc., 862 F.2d 242, 245 (10th Cir. 1988) (citing 50 U.S.C. App. § 511(2)(C)).
30 Id. See also Cronin v. United States, 98 Fed. Cl. 268, 278 (Fed. Cl. 2011) (holding that placement on temporary disability retired list, notwithstanding issuance of a DD Form 214, qualified as “active duty”).
31 Dambrava v. Office of Pers. Mgmt., 466 F.3d 1061, 1063 & 1064 (Fed. Cir. 2006). See also Dean v. United States, 92 Fed. Cl. 133 (Fed. Cl. 2010) (concluding that Servicemember on temporary disability retired list is not in the military service); and Craft v. United States, 544 F.2d 468, 476 (Ct. Cl. 1976) (concluding that a Servicemember on the temporary disability retired list is separated from the military).
32 See Lowe v. United States, 79 Fed. Cl. 218, 226 & 227 (Fed. Cl. Nov. 15, 2007).
33 See id.
34 Id. at 227.
35 10 U.S.C. § 1168 (2006).
36 But see Cronin, 98 Fed. Cl. at 276-77 (distinguishing Lowe and disagreeing with the suggestion that “the issuance of a DD Form 214 is in every case concurrent with and equivalent to a final discharge or retirement”).
37 Lowe, 79 Fed. Cl. at 227.
38 LeMaistre v. Leffers, 333 U.S. 1, 6 (1948).
39 Boone v. Lightner, 319 U.S. 561, 575 (1943).
40 50 U.S.C. App. § 501(1).