LAW REVIEW 1094
Coverage for National Guard Members on
By Captain Samuel F. Wright, JAGC, USN
188.8.131.52—USERRA Coverage for National Guard Service
On Nov. 24, 2010, the Santa Fe
Reporter (SFR) (New
published an interesting and well-researched article titled “36 Hours, 30 Years
Later.” The article details some
significant gaps in coverage of National Guard members on state active duty
(SAD). Some of the gaps have been
closed, but others remain.
On Feb. 2, 1980, Mary Racicot (a Vietnam veteran) was at drill with the 744th
Medical Detachment of the New Mexico Army National Guard. Her commander (Major James Buckman) called and
directed her to load up the unit’s medical equipment and take the five lower
ranking Guard members under her to the state penitentiary, to perform damage
control at one of the most violent prison riots in our nation’s history.
Racicot and her small unit
remained at the penitentiary late into the night, treating guards and inmates
who had been beaten, raped, and tortured.
That night, Racicot was placed on “body detail,” transferring bodies
from stretchers to body bags. She wrote,
“The most difficult for me was an inmate that had a blow-torch to his face and
groin. When I went to move him from the
stretcher, his tissue was still melting.
It went through my fingers.”
Racicot and her colleagues
suffered Post Traumatic Stress Disorder (PTSD) and other serious ill
effects. She received counseling, but
only 18 years later (1998) and at her own expense. The federal Veterans Administration (VA)
(which became the Department of Veterans Affairs in 1989) denied her claim for
benefits, on the grounds that she suffered the ill effects while in a state
status, rather than a federal status.
The VA paid benefits to six other National Guard riot veterans, only to
rescind the benefits in 2002.
When Mary Racicot left active
duty and affiliated with the New Mexico Army National Guard, she took two
enlistment oaths and became a member of two legally distinct entities. This arrangement is the same for all National
Guard members. Racicot became a member
of the New Mexico Army National Guard (NMARNG), the state militia. She simultaneously became a member of the
Army National Guard of the United States (ARNGUS), one of our nation’s seven
Reserve Components (along with the Army Reserve, the Air National Guard of the United States, the Air Force Reserve, the Navy Reserve, the Marine
Corps Reserve, and the Coast Guard Reserve).
Like National Guard members
generally, Racicot is considered to be in a “state status” except when called
to federal active duty by the President under title 10 of the United States
Code (U.S.C.). While in a state status,
Racicot and other National Guard members perform training and other duty
(including “full-time National Guard duty”) for which they are entitled to
receive pay from the United States, under title 32 of the U.S.C. On other days, Racicot and other Guard
members perform SAD under state law and receive state pay, not federal
pay. In some states, the SAD pay for a
day is substantially less than the federal military pay scale for a day.
On Feb. 2, 1980, Racicot and her colleagues were performing title 32
duties while training for federal contingencies at the National Guard
armory. When they packed up their gear
and traveled from the armory to the penitentiary, they thereby transformed from
a title 32 statuses to an SAD status. Thus,
they were not entitled to VA benefits for injuries (including PTSD) sustained
during the SAD for the riot.
In its article, the Santa Fe Reporter wrote: “Since then-Gov. Bruce King didn’t get
then-President Jimmy Carter’s official permission to call in the Guard, riot
victims are not eligible for federal benefits, Veterans Affairs Public Affairs
Officer Jo Ann Pacheco tells SFR via email.”
That explanation is not entirely accurate. The Governor of New Mexico did not need the
President’s permission to call up National Guard members for SAD. Governor King could have asked President
Carter to call up New Mexico National Guard members for federal active duty
under title 10, but the President almost certainly would have declined such a
request. Although extraordinarily
serious, the prison riot was a state emergency, not a national emergency. In any case, former Governor King died Nov. 13, 2009, so he is not available to explain his reasoning in
the 1980 crisis.
Racicot and her colleagues
were effectively state employees during their response to the prison riot. One would think that they should be eligible
for state workers’ compensation benefits, like other state employees injured in
the course and scope of their state employment.
New Mexico established its Workers’ Compensation Administration
(WCA) in 1986, six years after the riot.
In 2002, a WCA spokesman told the Albuquerque
Journal that access to state workers’ compensation benefits for the
National Guard riot veterans was “very unlikely.”
Racicot and her colleagues
fell through the proverbial crack, and even after 30 years they have not been
pulled out of this crack. Worse, if
something similar were to happen today the National Guard members could easily
fall through that same crack. Congress
and the state legislatures need to address these issues comprehensively, to
ensure that future National Guard members do not suffer the sad fate of Mary
Racicot and her colleagues at the 1980 riot.
In addition to coverage for injuries sustained in the line of duty while
on SAD, other issues are as follows.
Right to return to civilian job after SAD
The Uniformed Services
Employment and Reemployment Rights Act (USERRA) gives an individual the right
to reemployment with the pre-service employer after voluntary or involuntary
service in the uniformed services.
USERRA applies to almost all employers in this country, including the
Federal Government, state and local governments, and private employers,
regardless of size.
National Guard members have
reemployment rights under USERRA after title 10 duty or title 32 duty, but not
SAD. Every state has a state law to
protect National Guard members on SAD, but there are loopholes in those laws. For example, please see Law Review 45 at www.roa.org/law_review. The
complainant in that situation was a member of the Washington Army National
Guard, but his civilian job was in Oregon. He was called
to SAD by the Governor of Washington.
Upon his release from SAD, his Oregon employer refused to reemploy him. USERRA does not apply to SAD. The Washington law cannot apply across the state line in Oregon. The Oregon law by its terms was limited to “a member of the
National Guard of this state. This poor fellow fell through the crack
and did not get his job back. The law
has not been fixed to prevent a recurrence of this sad situation.
Default judgment protection while on SAD.
Congress enacted the
Servicemembers Civil Relief Act (SCRA) in 2003, to replace the Soldiers’ and
Sailors’ Civil Relief Act (SSCRA), which dates back to 1917. The SCRA provides many important legal
protections to the individual who has left civilian life for active military
service, voluntarily or involuntarily.
One important protection is to prevent a default judgment being entered
against a service member while he or she is deployed and unable to file a
timely answer. The SCRA is codified in
title 50 Appendix, U.S.C., sections 501-596.
Section 101 of the SCRA [50
U.S.C. App. 511] defines nine terms used in this law, including the term
“military service.” “The term ‘military
service’ means—(A) in the case of a servicemember who is a member of the Army,
Navy, Air Force, Marine Corps, or Coast Guard-- … (ii) in the case of a member
of the National Guard, includes service under a call to active service
authorized by the President or the Secretary of Defense for a period of more
than 30 consecutive days under section 502(f) of title 32, United States Code,
for purposes of responding to a national emergency declared by the President
and supported by Federal funds.” 50
U.S.C. App. 511(2)(A)(ii). SAD does not
give rise to SCRA rights.
The Service Members Law Center will propose federal and state legislation to ensure
that National Guard soldiers and airmen not fall through the cracks.
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