Coverage for National Guard Members on State Duty
By Captain Samuel F. Wright, JAGC, USN (Ret.)
220.127.116.11—USERRA Coverage for National Guard Service
On Nov. 24, 2010, the Santa Fe Reporter (SFR) (New Mexico) 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.