FY11 National Defense Authorization Act

Transcription

1 National Defense Authorization Act Analysis of H.R & S. 3454, Authorizing Appropriations for the Department of Defense for Fiscal Year As of 10 June 2010 Bills Status House (H.R. 5136) Senate (S. 3454) Passed in Committee 19 May May 2010 Passed in Chamber 28 May 2010 Agreement Final Passage Signed into Law

2 Table of Contents EXECUTIVE SUMMARY ARMY NATIONAL GUARD AIR NATIONAL GUARD OPERATIONS AND MAINTENANCE MILITARY PERSONNEL AUTHORIZATIONS MILITARY PERSONNEL POLICY COMPENSATION AND OTHER PERSONNEL BENEFITS HEALTH CARE GENERAL PROVISIONS OTHER AUTHORIZATIONS OVERSEAS CONTINGENCY OPERATION AUTHORIZATIONS ITEMS OF SPECIAL INTEREST

3 Executive Summary This guide provides only a short summary and analysis of the many National Guard-related provisions. To obtain a complete understanding of any particular provision, users are encouraged to review the actual legislative language contained in the applicable section of the bills, accompanying reports, or public law. The bill is available on the NGB-LL web page at On 28 May, the House passed H.R. 5136, the Fiscal Year 2011 National Defense Authorization bill. Non-Dual Status Technicians The bill includes the President s Request of an additional 920 Non- Dual Status Technicians for the Army National Guard that was removed during Subcommittee action. The bill also increases the statutory cap on Army National Guard Non-Dual Status Technicians from 1,950 to 2,870 NGREA Authorization The House bill also authorizes $700 million in the National Guard and Reserve Equipment Account. National Guard Technicians Adverse Personnel Action Appeals The House bill would eliminate the current state-based personnel grievance procedures for National Guard technicians under title 32 United States Code and shift it to federal procedures under title 5 United States Code. Retention of Technician Bonus and Education Pay The House bill would prohibit the repayment of enlistment or reenlistment bonuses or the termination of any educational assistance provided to members of a reserve component that become employed as dual status technicians. Military Construction Authorization The House bill also authorizes an additional discretionary $60 million for the Army National Guard and $50 million for the Air National Guard for military construction. The Senate Armed Services Committee reported out their version of the Authorization Act, S. 3454, on 27 May. The Senate bill will be further amended when the bill is considered on the Senate floor within the next few months. Non-Dual Status Technicians The Senate Armed Services Committee bill does not include the President s Request of an additional 920 Non-Dual Status Technicians for the Army National Guard over the Fiscal Year 2010 authorized level. Border Mission The Committee also requires that not less than 6,000 members of the National Guard perform operations and missions along the southern border. Access to the Operational Reserve Also included in the Report language is the opinion of the Committee that current authorities may not offer the flexibility for the effective use of the operational reserve and recommends the Secretary of Defense review current authorities and submit legislative proposals for additional authority needed to facilitate involuntary activation of reserve component members or units to support operational requirements. Readiness Center Study The Report to accompany the bill (Senate Report ) also requires the Secretary of the Army to provide a report no later than 1 February 2011 on a study of National Guard readiness centers. Military Construction Authorizations The current bill authorizes additional funding above the President s Request for both the Army and Air National Guard Military Construction accounts. The below analysis reflects the bills as passed by the House and as reported by the Senate Armed Services Committee. It is important to note that the actual effect of some provisions of the NDAA will be greatly affected by the outcomes of the Fiscal Year 2011 Defense Appropriations bill and the Fiscal Year 2011 Military Construction Appropriations bill. -1 -

4 Army National Guard Authorization of Funding (All Dollars in Thousands) Army National Guard President's Budget Request House Passed PB SASC Mark PB O&M* $6,572,704 $6,626,525 +$53,821 $6,572,704 $0 OCO O&M* $544,349 $544,349 $0 $544,349 $0 Military Construction* $873,664 $1,019,902 +$146,238 $963,030 +$89,366 Conference Report Delta from PB Army National Guard End Strength President's Budget Request Army National Guard House Passed PB SASC Mark End Strength 358, , ,200 0 AGR 32,060 32, ,060 0 Dual Status Technicians 27,210 27, ,210 0 Non-Dual Status Technicians 2,520 2, , ADOS 17,000 17, ,000 0 PB Conference Report Delta from PB Air National Guard Authorization of Funding (All Dollars in Thousands) Air National Guard President s Budget Request House Passed PB SASC Mark PB O&M* $5,941,143 $5,980,139 +$38,996 $6,042,239 +$101,096 OCO O&M* $350,823 $350,823 $0 $350,823 $0 Military Construction* $176,986 $292,371 +$115,385 $336,086 +$159,100 Air National Guard End Strength President's FY10 Budget Request Air National Guard House Passed PB SASC Mark End Strength 106, , ,700 0 AGR 14,584 14, ,584 0 Dual Status Technicians 22,394 22, ,394 0 Non-Dual Status Technicians ADOS 16,000 16, ,000 0 PB Conference Report Conference Report Delta from PB Delta from PB - 2 -

5 Operations and Maintenance Modification and Repeal of Certain Reporting Requirements Both the House and Senate bills would repeal certain reports required in previous year Defense Authorization Acts, including Sec. 349 of the FY07 Defense Authorization Act, which requires a quarterly report on the readiness of reserve component equipment. (House Sec. 333; Senate Sec. 347). The Senate report does note that the National Guard and Reserves need equipment for training and requires the Chief of Staff of the Army to submit a report on the Rapid Fielding Initiative and the equipping issues faced by the National Guard and Reserves. Report On Air Sovereignty Alert Mission The House bill would require a report from the Commander on NORTHCOM in consultation with the National Guard Bureau on the status of, funding for, and future threats faced by the Air Sovereignty Alert mission and Operation Noble Eagle. The report is due no later than 1 March (House Sec. 334). Report on Suppression of Enemy Air Defense Mission The House bill would require the Secretary of the Air Force in consultation with the National Guard Bureau to provide a report on the feasibility of placing responsibility for the Suppression of Enemy Air Defense mission within the Air National Guard. The report is due 120 days after the date of enactment. (House Sec. 335). C-130 Retirement The House bill would prohibit the retirement of Air Force C-130 aircraft until 30 days after the Director of the Air National Guard, the Commander of the Air Force Reserve Command, and the Chief of Staff of the Air Force submit a written agreement to Congress on the terms of the temporary transfer of C-130 aircraft from the reserve component to the active component. (House Sec. 346). The Committee report also notes that the recent Air Force Mobility Capability and Requirements Study did not consider direct support missions. The Committee directs the Secretary of the Air Force in coordination with the Secretary of the Army and the Director of the Air National Guard to provide a briefing, detailing among other things the number and type of aircraft needed to conduct direct support of the Army and the number and type of aircraft needed to conduct National Guard title 32 missions. Limitation on Force Structure Implementation The House bill would prohibit the obligation or expenditure of any funds for the implementation of the Air Force Force Structure Announcement until 45 days after the Secretary of the Air Force submits a report on future missions for bases affected by the announcement as well as stating that the Air Sovereignty Alert mission will be fully resourced, equipped, and manned. (House Sec. 348). The Committee report also requires the Secretary of the Air Force to submit a report on the plan for concurrent and proportional fielding of the F-35 aircraft to the reserve component. High-Altitude Aviation Training Site The House bill would express the sense of Congress that the High-Altitude Aviation Training Site (HAATS) in Colorado is a critical element of Department of Defense aviation training. (House Sec. 356). Sense of Congress Regarding Fire Resistant Uniforms for the National Guard The House bill expresses the sense of Congress that the Chief of the National Guard Bureau should issue fire resistant uniforms to members of the National Guard involved in civil support missions that routinely encounter fire hazards. (House Sec. 359). -3 -

6 Military Personnel Authorizations Non-Dual Status Technicians The House bill would authorize 2,520 Army National Guard Non- Dual Status Technicians as requested in the President s budget. The House bill would also raise the annual statutory limit for National Guard Non-Dual Status Technicians from 1,950 to 2,870 to accommodate the increase. The current Senate bill does not include the President s Request and authorizes 1,600 Army National Guard Non-Dual Status Technicians. (House & Senate Sec. 414). In the Senate report the Committee notes four factors that influenced their decision: 1) under current Presidential waiver authority the Army National Guard employs over 3,000 non-dual status technicians; 2) the requested strength may be too high for permanent peacetime requirements; 3) the temporary hiring authority authorized in Sec. 524 of the Senate bill should alleviate the pressures created by current operations tempo; and 4) the Committee is still waiting for two reports of the Department of Defense on the full-time support needs of the reserve components. Military Personnel Policy Preseparation Counseling for Members of the Reserve Component The House bill would require individual preseparation counseling for members of the reserve component. (House Sec. 511). Military Correction Board Remedies for Members of the National Guard The House bill would clarify that members of the National Guard fall within the jurisdiction of the boards operated by the secretaries concerned to correct military records. (House Sec. 512). Temporary Employment of Non-Dual Status Technicians Both the House and Senate bills would allow for the employment of non-dual status technicians as a temporary employee for no more than two years to fill the vacancy created by the mobilization of a dual status technician. (House Sec. 515; Senate Sec. 524). Direct Appointment of Merchant Marine Academy Graduates to the National Guard The Senate bill allows graduates of the United States Merchant Marine Academy to be eligible for federal recognition as commissioned officers of the National Guard. (Senate Sec. 525). Revised Structure and Function of the Reserve Forces Policy Board Both the House and Senate bills would amend the structure and function of the Reserve Forces Policy Board. The changes include limiting membership. These membership changes include two General Officers, one of which must be a member of the Army National Guard; two reserve officers from the Army, one of which must be a member of the Army National Guard; and two reserve officers from the Air Force, one of which must be a member of the Air National Guard. The bill requires the Board to act on all matters referred to it by its Chairman. (House Sec. 516; Senate Sec. 903). Merit System Protection Board and Judicial Remedies for National Guard Technicians The House bill would eliminate the current state-based personnel grievance procedures for National Guard technicians under title 32 United States Code and shift it to federal procedures under title 5 United States Code. Under current law of section 709 of title 32 United States Code, the adjutant general of a state is the final appeal authority for all Technician adverse personnel actions. The provision would usurp the adjutants general authority and allow technicians to appeal adverse personnel actions under title 5 United States Code. (House Sec. 517). Increase Maximum Age for ROTC Candidates The Senate bill increases the maximum age from 31 to 35 for prospective candidates for Army Reserve and Army National Guard ROTC scholarships. (Senate Sec. 537). Service Commitments for Reservist The Senate bill would allow members of the Selective Reserve that accept fellowships, scholarships, or grants to fulfill their service commitment in active duty or in the Selective Reserve by agreement. (Senate Sec. 540)

7 Leave of Members of the Reserve Component The Senate bill would authorize members of the reserve components to carry over leave from periods of active service. The bill would also allow members of the reserve component to sell leave accumulated or carried over in the event they separate or retire from the reserve component. (Senate Sec. 556). Modification of Yellow Ribbon Reintegration Program The House bill would modify the Yellow Ribbon Reintegration Program to provide services to members and family members of components of the armed forces. It would also require an analysis of the effectiveness of the Yellow Ribbon Reintegration Program. The provision also adds resiliency training as an outreach program under Yellow Ribbon. (House Sec. 584). Support from the Department of Education to Cover Costs of New National Guard Youth ChalleNGe Programs The House bill would allow the Department of Education to provide financial assistance to cover the difference in the amount provided by the Department of the Defense and the total cost of a new state National Guard Youth ChalleNGe program. (House Sec. 600C). Study on Treatment of the Reserve Component The House bill would require the Inspector General of the Department of Defense to submit a study no later than 31 December 2010 on the treatment of the reserve components. The study shall include an analysis of the treatment of members of the reserve components at mobilization and demobilization site; during pre and post deployment medical examinations; and the quality of care and patterns of treatment before, during, and after deployments. (House Sec. 600D). Compensation and Other Personnel Benefits Pay Increase The House bill would increase military pay to 1.9%. (House Sec. 601). Reservist Income Replacement and Federal Civilian Employees Both the House and Senate bills would prohibit income replacement payments under section 910(b) of title 37 United States Code to members of the reserve component that are also federal civilian employees eligible for another income repayment program. (House Sec. 607; Senate Sec. 603). Bonus Authority Both the House and Senate bills provide authority to pay the following bonuses and special payments are extended for one year: Select Reserve reenlistment bonus, Select Reserve affiliation or enlistment bonus, the special pay for enlisted members assigned to certain high priority units, the Ready Reserve enlistment bonus for persons without prior service, the Ready Reserve enlistment and reenlistment bonus for persons with prior service, and the Select Reserve enlistment bonus for persons with prior service. (House & Senate Sec. 611) Travel and Transportation Allowances for Inactive Duty Training Outside of Normal Commuting Distances The House bill authorizes a one-year extension of travel and transportation allowances for inactive duty training outside of normal commuting distances. (House Sec. 631). Transportation and Travel for Yellow Ribbon Events Both the House and Senate bills allow authorized travel of designated members of the uniformed services to and from Yellow Ribbon Reintegration Program events. The related travel expenses may be reimbursed. The language of the provision is identical in both bills. (House Sec. 632; Senate Sec. 621). Equity in Compensation for Retired Pay for Reserve Members Wounded in Action The House bill would require calculations for retired pay for reserve component members wounded in action to be based on the members total years of service rather than active duty years. (House Sec. 642). Elimination of Age Requirement for Health Care Benefits for Non-Regular Retirees The House bill would allow members of the reserve component under 60 years of age that are eligible for nonregular retirement pay to receive health care benefits. (House Sec. 643). -5 -

8 Clarification of Effect of Ordering Reserve Component to Active Duty to Receive Medical Care The House bill would ensure that members of the reserve component ordered to active duty to receive medical care for wounds, injuries, or illness incurred while on qualified active duty receive appropriate credit for calculating retired pay. (House Sec. 644). Sense of Congress Regarding Retired Pay for Non-Regular Service The House bill expresses the sense of Congress that the changes made in the FY08 NDAA, to reduce the age of retirement of members of the reserve components by three months for every 90 days served on active duty, does not require the qualifying service to be wholly served in the same fiscal year. The bill requires the Department of Defense to correct this erroneous interpretation. (House Sec. 647). Retention of Enlistment, Reenlistment, and Student Loan Benefits Received by Dual Status Technicians The House bill would prohibit the repayment of enlistment or reenlistment bonuses or the termination of any educational assistance provided to members of a reserve component that become employed as dual status technicians. (House Sec. 672). Report on Additional Incentives for Recruitment and Retention of Health Care Professionals for the Reserve Component The House bill would require the Surgeons General of the Army, Navy, and Air Force to submit a report not later than 90 days after enactment of the NDAA on the staffing needs for health care professionals in the active duty and reserve components. (House Sec. 674). Health Care Health Care Professional Licensure Requirements for Members of the National Guard Both the House and Senate bills clarify licensure requirements of health care professionals who are members of the National Guard performing duty under title 32 of United States Code. The bill provides that a member of the National Guard performing training or duty under title 32 of United States Code in response to an actual or potential disaster must have a current license to practice medicine, osteopathic medicine, dentistry, or another health profession. The language of the provision is identical in both bills. (House Sec. 713; Senate Sec. 716). General Provisions Previously Requested Reports The House bill would require the Comptroller General to submit a report on the sufficiency, adequacy, and conclusions of the following reports required by previous Authorization Acts: Air Force fighter gap; procurement of 4.5 generation fighters; combat air forces restricting. The bill also would prohibit the retirement of any Air Force or Air National Guard fighter aircraft until 180 days after the report is submitted. (House Sec. 1044). Limitation on the Deactivation of Existing CCMRF The Senate bill would prohibit the deactivation of any CCMRF established by 1 October 2009 before the Secretary of Defense submits a report on the plans to establish Homeland Response Forces. (Senate Sec. 1031). Nonlethal Supplies for Domestic Emergency Assistance Both the House and Senate bills would authorize the Secretary of Defense, through the Secretary of Homeland Security to make available excess nonlethal supplies to support domestic emergency assistance activities. (House Sec. 360; Senate Sec. 1032). Surplus Military Equipment for State and Local Homeland Security Agencies Both the House and Senate bills expand to state and local agencies to which the Department of Defense may sell surplus equipment to include homeland security and emergency management activities. The bill also includes protective body armor, personal protective equipment, and other appropriate equipment in the list of equipment that may be sold. The language of the provision is identical in both bills. (House Sec. 1053; Senate Sec. 1033)

9 National Guard Support to Secure the Southern Border* The Senate bill would require the Secretary of Defense to deploy not fewer than 6,000 members of the National Guard under title 32 of United States Code to perform various missions and operations along the southern border of the United States until such time that the Federal Government can certify that it has achieved operation control of the border. (Senate Sec. 1041). Other Authorizations Drug Interdiction and Counter Drug Activities* The House bill authorizes $1,131,351,000 for defense wide drug interdiction and counter drug activities. The Senate bill authorizes $1,153,851,000 for defense wide drug interdiction and counter drug activities. (House Sec. 1407; Senate Sec. 1405). The Senate report also recognizes the value of the National Guard Counter Drug Program and authorizes an additional $35 million* for the program to conduct counterdrug activity along the northern and southern borders and other high priority areas. Overseas Contingency Operation Authorizations National Guard and Reserve Equipment Account* The House bill authorizes $700,000,000 for the National Guard and Reserve Equipment Account (NGREA) for the procurement of aircraft, missiles, wheeled and tracked combat vehicles, tactical wheeled vehicles, ammunition, small arms, tactical radios, non-system training devices, logistic automation systems, and other critical dual-use procurement items for the national guard and reserves. The Committee report noted that the Committee expects the National Guard and reserve forces to use this NGREA funding to procure high-priority equipment that would be used by these units in their critical dual-mission role of fullspectrum combat operations and domestic civil support missions. (House Sec. 1508). Items of Special Interest The Report to accompany the Senate Armed Services Committee bill includes language relevant to the National Guard identified as of special interest to the Committee. Access to the operational reserve (Senate Report pg. 138) Effective access to the reserve component as an operational force is essential to reducing the burden on all forces and making progress on the roadmap to the best use of the reserve components to achieve national security objectives provided by the findings and recommendations of the Commission on the National Guard and Reserves. The committee believes that the existing authorities for involuntary mobilization of the reserve components under section and of title 10, United States Code, may not offer the necessary flexibility to service planners to facilitate the effective use of the operational reserve. In order to provide trained and ready reserve units and personnel to respond rapidly to contingencies, participate in essential rotational missions, and comply with applicable dwell time goals, additional legal authority to order members of the reserve component into federal military service may be required. In recent testimony before the Subcommittee on Personnel of the Senate Committee on Armed Services, the Assistant Secretary of Defense for Reserve Affairs stated that the process by which roles and missions are assigned to the Reserve and Guard should be characterized by a belief that these forces can, and frequently should be, the first choice for recurring and predictable missions within their capabilities, because they are fully accessible. In this context, predictability encourages anticipatory planning thinking ahead, not just in terms of the type of mission, but the timing and duration of the mission as well. Predictable missions create lead time for proper planning and training. That kind of anticipatory thinking can t be done when the Reserve components are used as the last option. Additionally, the Commission on the National Guard and Reserves found that individual volunteerism, while admirable, is not a sustainable means to provide access to the reserve component units that the services require. The committee concurs and recommends that the -7 -

10 Secretary of Defense review current mobilization authorities and submit legislative proposals for any additional authority needed to facilitate the involuntary activation of specified numbers of Selected Reserve personnel or units for limited periods of time to support operational requirements. Report on National Guard readiness centers (Senate Report pg. 258) The committee notes that the budget request for fiscal year 2011 contains 48 military construction projects for the Army National Guard (ARNG) in 32 states and territories totaling $874.0 million, a 105 percent increase from the amount requested in the budget request for fiscal year While the committee commends the Department of the Army for the necessary increase to address the severe backlog of work needed to upgrade Army National Guard facilities, the committee also notes that the amount for the ARNG included in the future years defense program (FYDP) accompanying the budget request for 2011 drops off significantly to a proposed amount of $354.0 million in fiscal year 2015, with less than $180.0 million per year dedicated to the replacement or modernization of ARNG facilities. The committee notes that the 2009 Quadrennial Defense Review (QDR) released in February 2010 outlined the requirement that the ARNG should be a force that can serve in an operational capacity, available, trained, and equipped for routine deployment as well as being a Homeland Response Force responsible for providing regional immediate response capability within the United States. The QDR stated, [t]oday s National Guard and Reserve men and women volunteer knowing that they will periodically serve on active duty. They also serve expecting to be... provided the right training and equipment to complete the mission. The Department will work to meet these expectations. The ARNG relies on an inventory of 3,000 Readiness/Reserve Centers (formerly known as armories) spread over all 54 states/territories in local communities as the primary facilities to support unit training and local State operations. The committee is aware that 40 percent of ARNG facilities are over 50 years old and about 40 percent of readiness centers do not adequately meet requirements for the support of training for the full range of mission essential tasks. In addition, based on the current force structure of the ARNG, there exists a deficit in readiness centers of 19.5 million square feet, 30 percent of the total current inventory. Finally, many readiness centers are located in areas that are not ideally positioned for current populations and demographic trends, which affects recruiting and retention. All of these factors have a detrimental impact on the readiness of the ARNG at a time when the high operations tempo of deployments to Iraq and Afghanistan are already taking a significant toll on the ARNG. The committee notes that the budget request for fiscal year 2011 contains 20 military construction projects totaling $294.0 million to add to or replace ARNG readiness centers. At this rate of investment, it would take over 30 years just to address the critical requirements in inadequate readiness centers. In addition, the committee is concerned that military construction funds may not be addressing the most urgent requirements in the ARNG due to local considerations and the need for state matching funds. Finally, the committee recognizes that the value and contribution of readiness centers to local communities may not be fully recognized by DOD. Therefore, the committee directs the Secretary of the Army to report to this committee no later than February 1, 2011 on the results and recommendations of an independent study which shall review the following: 1) standards for facility size, configuration, and equipment for the range of missions and training supported by readiness centers; 2) an assessment of each readiness center to objectively measure and determine the current facility condition and capability to support authorized manpower, unit training, and operations; 3) an assessment of supporting facilities and functions to include equipment storage, classrooms, force protection, utilities, maintenance, administration, and proximity of support and training facilities; 4) recommendations for the placement of new readiness centers, the relocation of existing readiness center, or a change in the mission of units assigned to readiness centers to ideally position the ARNG in current or projected population centers; 5) recommendations for enhanced use of readiness centers to facilitate ARNG family support programs during deployments; - 8 -

11 6) an analysis of the feasibility, potential costs and benefits of shared use of ARNG readiness centers with other local, state, or federal agencies to improve response to local emergencies as well as the community support provided by readiness centers; and 7) an investment strategy and proposed funding amounts in a prioritized project list to correct the most critical facility shortfall across the inventory of ARNG readiness centers. *Indicates that the funding is Authorized and is subject to Appropriations funded within the Fiscal Year 2010 Supplemental Appropriations Act, the Fiscal Year 2011 Defense Appropriations Act, or the Fiscal Year 2011 Military Construction Appropriations Act -9 -