USERRA and the SCRA for the Military Recruiter

Transcription

1 LAW REVIEW Octber 2017 USERRA and the SCRA fr the Military Recruiter By Captain Samuel F. Wright, JAGC, USN (Ret.) 2 Update n Sam Wright USERRA applies t regular military service USERRA applies t examinajn t determine fitness fr service 1.2 USERRA frbids discriminajn LeO jb fr service and gave prir njce Character and durajn f service CnJnuus accumulajn f senirity escalatr principle Pensin credit fr service Jme 4.1 SCRA right t interest rate reducjn upn entering acjve duty 4.3 SCRA right t terminate a lease Q: I am an Army recruiter. In recent mnths, as the ecnmy has imprved, there have been mre civilian jb pprtunijes fr yung men and wmen graduajng frm high schl r cllege, s the jb f the military recruiter has becme mre difficult. My recruiter clleagues and I have fund it increasingly difficult t meet ur qutas, and mre Oen we find it necessary t request waivers fr yung men and wmen wh fail t meet recruijng standards because f criminal cnvicjns, use f illegal drugs, etc. I wrry that recruits wh gt in with 1 I invite the reader s auenjn t Yu will find mre than 1500 Law Review arjcles abut the Unifrmed Services Emplyment and Reemplyment Rights Act (USERRA), the Servicemembers Civil Relief Act (SCRA), the Unifrmed and Overseas CiJzens Absentee VJng Act (UOCAVA), the Unifrmed Services Frmer Spuse PrtecJn Act (USFSPA), and ther laws that are especially perjnent t thse wh serve ur cuntry in unifrm. Yu will als find a detailed Subject Index, t facilitate finding arjcles abut very specific tpics. The Reserve Officers AssciaJn (ROA) inijated this clumn in I am the authr f mre than 1300 f the arjcles. 2 BA 1973 Nrthwestern University, JD (law degree) 1976 University f Hustn, LLM (advanced law degree) 1980 Gergetwn University. I served in the Navy and Navy Reserve as a Judge Advcate General s Crps fficer and rejred in I am a life member f ROA. I have dealt with USERRA and the Veterans Reemplyment Rights Act (VRRA the 1940 versin f the federal reemplyment statute) fr 35 years. I develped the interest and experjse in this law during the decade ( ) that I wrked fr the United States Department f Labr (DOL) as an aurney. Tgether with ne ther DOL aurney (Susan M. Webman), I largely draoed the prpsed VRRA rewrite that President Gerge H.W. Bush presented t Cngress, as his prpsal, in February On 10/13/1994, President Bill Clintn signed int law USERRA, Public Law , 108 Stat The versin f USERRA that President Clintn signed in 1994 was 85% the same as the Webman-Wright drao. USERRA is cdified in Jtle 38 f the United States Cde at secjns 4301 thrugh 4335 (38 U.S.C ). I have als dealt with the VRRA and USERRA as a judge advcate in the Navy and Navy Reserve, as an aurney fr the Department f Defense (DOD) rganizajn called Emplyer Supprt f the Guard and Reserve (ESGR), as an aurney fr the United States Office f Special Cunsel (OSC), as an aurney in private pracjce, and as the Directr f the Service Members Law Center (SMLC), as a full-jme emplyee f ROA, fr six years ( ). Please see Law Review (June 2015), cncerning the accmplishments f the SMLC. My paid emplyment with ROA ended 5/31/2015, but I have cnjnued the wrk f the SMLC as a vlunteer. Yu can reach me by at SWright@ra.rg.

2 such waivers will nt make gd sldiers and will end up being mre truble than they are wrth. An Army lawyer referred me t yur Law Review arjcles abut the Unifrmed Services Emplyment and Reemplyment Rights Act (USERRA), and I have read sme f the arjcles. The arjcles that I have read dealt with the applicajn f USERRA t persns wh serve in the NaJnal Guard r Reserve. Des USERRA als apply t persns wh enlist in the Regular Army r anther service? A: Yes, mst definitely. As I have explained in Law Review (December 2015) and many ther arjcles, USERRA applies t any persn wh meets five simple cndijns: a. LeO a civilian jb (federal, state, lcal, r private sectr) t perfrm service in the unifrmed services as defined by USERRA. b. Gave the emplyer prir ral r wriuen njce. c. Has nt exceeded the cumulajve five-year limit n the durajn f the perid r perids f service, relajng t the emplyer relajnship fr which the persn seeks reemplyment. d. Was released frm the perid f service withut having received a disqualifying bad discharge frm the military. 3 e. AOer release frm the perid f service, has made a Jmely applicajn fr reemplyment. 4 A persn wh meets these five cndijns is enjtled t prmpt reinstatement in the jb that he r she wuld have auained if he r she had remained cnjnuusly emplyed by the civilian emplyer, r anther jb (fr which he r she is qualified) that is f like senirity, status, and pay. 5 Upn reemplyment, the persn is enjtled t be treated as if he r she had been cnjnuusly emplyed, fr senirity and pensin purpses in the civilian jb. 6 SecJn 4303 f USERRA 7 defines 16 terms used in this law and defines the term service in the unifrmed services as fllws: The term "service in the unifrmed services" means the perfrmance f duty n a vluntary r invluntary basis in a unifrmed service under cmpetent authrity and includes ac1ve duty, acjve duty fr training, inijal acjve duty fr training, inacjve duty 3 Disqualifying bad discharges include bad cnduct discharges and dishnrable discharges (awarded by curt marjal fr serius ffenses) and ther-than-hnrable administrajve discharges. 38 U.S.C AOer a perid f service f 181 days r mre, the persn has 90 days t apply fr reemplyment. 38 U.S.C. 4312(e)(1)(D). Shrter deadlines apply aoer shrter perids f service U.S.C. 4313(a)(2)(A) U.S.C. 4316(a), U.S.C

3 training, full-jme NaJnal Guard duty, a perid fr which a persn is absent frm a psi1n f emplyment fr the purpse f an examina1n t determine the fitness f the persn t perfrm any such duty, a perid fr which a System member f the NaJnal Urban Search and Rescue Respnse System is absent frm a psijn f emplyment due t an appintment int Federal service under secjn 327 f the Rbert T. Staffrd Disaster Relief and Emergency Assistance Act, and a perid fr which a persn is absent frm emplyment fr the purpse f perfrming funeral hnrs duty as authrized by secjn f Jtle 10 r secjn 115 f Jtle Fr example, Mary Jnes (age 29) has already wrked fr the City f New Yrk fr a decade and has a decade f senirity and pensin credit. She visits yur ffice because she is interested in serving ur cuntry in unifrm. She is nt interested in making the Army a career, but she wuld like t serve fr fur r five years, and her credenjals and demeanr seem t indicate that she wuld be a gd sldier. Mary is cncerned that if she leaves acjve duty aoer fur r five years she will fall behind her City f New Yrk clleagues when she returns t wrk. If Jnes meets the five USERRA cndijns (and it will be easy fr her t meet them if the cndijns are explained t her), she will be enjtled t prmpt reemplyment in the city jb that she wuld have auained if cnjnuusly emplyed (pssibly a beuer jb than the ne she leo), even if that means that anther emplyee must be displaced. 9 Upn reemplyment, she will be enjtled t senirity and pensin credit as if she had been cnjnuusly emplyed. 10 She will nt fall behind her city clleagues wh remained cnjnuusly emplyed during the fur r five years that she was n acjve duty. If these enjtlements are explained t her, she will be much mre likely t enlist. Q: I have a yung man in my ffice right nw let s call him Je Smith. Je is 24 and has wrked fr Daddy Warbucks Industries (DWI) fr fur years. He des nt like his jb, and that is ne reasn why he is strngly cnsidering enlisjng in the Army. Je wants t jin the Army and make it a career. Shuld Je give njce t his civilian emplyer? A: Yes, Je shuld give njce t DWI but nt un1l a:er he has taken the enlistment ath and his basic training reprt date is imminent (within ne mnth). If he gives njce nw, the emplyer will likely try t talk him ut f it, and if he enlists anyway, despite the emplyer s bjecjns, he will likely suffer discriminajn, maybe even firing. Such discriminajn is illegal under secjn 4311 f USERRA, 11 but it happens U.S.C. 4303(13) (emphasis supplied). 9 Please see Law Review (Octber 2017) U.S.C. 4316(a), U.S.C

4 Je has n legal r mral bligajn t say anything t his civilian emplyer abut his military plans unjl it is Jme fr him t leave his jb t reprt t duty. 12 I suggest that Je keep his military plans t himself unjl he is within 30 days f his basic training reprt date and the date is firm and unlikely t slip. Mst men and wmen jining the military d nt reprt t basic training right away they are in the Delayed Entry Prgram (DEP) fr mnths, perhaps up t a year, befre they reprt t basic training. While in the DEP, they are nt paid by the military. They must keep their civilian jbs unjl it is Jme t reprt t basic training, just t pay the rent and put fd n the table. If Je s DWI supervisr knws that Je will be leaving in a few mnths anyway, the supervisr will be mst reluctant t cnsider Je fr prmjns r training pprtunijes, and the supervisr may be tempted t fire Je. If Je lses his civilian jb fur mnths befre his basic training reprt date, that will put him in enrmus financial difficulty. Fr this reasn, I suggest that Je keep his enlistment a clse hld secret unjl his reprt date is imminent. As I have explained in Law Review (August 2015) and many ther arjcles, Cngress enacted USERRA in 1994, as a lng-verdue rewrite f the Veterans Reemplyment Rights Act (VRRA), which was riginally enacted in USERRA s legislajve histry addresses the DEP scenari as fllws: If the emplyee is unlawfully discharged under the terms f this secjn [secjn U.S.C. 4311] prir t leaving fr military service, such as under the Delayed Entry Prgram, that emplyee wuld be enjtled t reinstatement fr the remainder f the Jme the emplyee wuld have cnjnued t wrk plus lst wages. Such a claim can be pursued befre r during the emplyee s military service, and prcessing f the claim shuld nt await cmplejn f the service, even if nly fr lst wages. 13 As I have explained in Law Review 200 (Nvember 2005), it is nt rdinarily pssible t get a curt t issue an injuncjn frbidding an emplyer t fire a persn. Whether Je relies n the United States Department f Labr (DOL) and the United States Department f JusJce (DOJ), r whether Je hires his wn lawyer, it likely will nt be pssible t get a lawsuit filed, much less reslved, in the fur mnths remaining befre Je s basic training reprt date. The pssibility f gerng back pay later, aoer he is already n acjve duty, des nt help Je pay the rent and put fd n the table nw, while he is in the DEP. That is why I think that a persn like Je shuld cnceal his enlistment frm his civilian emplyer unjl his basic training reprt date is imminent Even then, he has n legal bligajn t njfy the emplyer that he is deparjng t reprt t basic training, but giving njce t the emplyer is an eligibility criterin fr reemplyment. Mrever, it is the right thing t d, as a mauer f curtesy. We dn t want his civilian supervisr t reprt him missing t the plice, when he des nt shw up fr wrk ne Mnday mrning. 13 Huse CmmiUee Reprt, April 28, 1993, H.R. Rep , Part 1, reprinted in Appendix B-1 f The USERRA Manual, by Kathryn Piscitelli and Edward SJll. The quted paragraph can be fund n page 690 f the 2017 edijn f the Manual. 14 Please see Law Review (August 2016) and Law Review (June 2013).

5 When Je is within 30 days f his basic training reprt date, he shuld give njce t his civilian emplyer, DWI, althugh he thinks that it is mst unlikely that he will ever want t return t wrk fr that cmpany. Giving njce t the emplyer keeps his civilian jb behind him as an unburned bridge, just in case Je leaves acjve duty shrt f rejrement eligibility and is unable (at that Jme) t find anther civilian jb. Mst f the peple wh enlist with the intent t be career service members leave acjve duty shrt f the 20-year pint. When Je gives DWI njce, he is nt required t predict that he will apply fr reemplyment when he leaves acjve duty. The DOL USERRA RegulaJn prvides: Is the emplyee required t tell his r her civilian emplyer that he r she intends t seek reemplyment aoer cmplejng unifrmed service befre the emplyee leaves t perfrm service in the unifrmed services? N. When the emplyee leaves the emplyment psijn t begin a perid f service, he r she is nt required t tell the civilian emplyer that he r she intends t seek reemplyment aoer cmplejng unifrmed service. Even if the emplyee tells the emplyer befre entering r cmplejng unifrmed service that he r she des nt intend t seek reemplyment aoer cmplejng the unifrmed service, the emplyee des nt frfeit the right t reemplyment aoer cmplejng service. The emplyee is nt required t decide in advance f leaving the civilian emplyment psijn whether he r she will seek reemplyment aoer cmplejng unifrmed service. 15 Q: Alice Adams, age 27, has been wrking fr DWI fr five years, and has enlisted in the Army recently. Based n the military specialty she chse and the bnus she accepted, she is bligated t remain n acjve duty fr at least six years. In yur recitajn f the five USERRA cndijns, yu said that there is a cumulajve five-year limit n the durajn f the perid r perids f unifrmed service. Can Alice have the right t reemplyment aoer six years f acjve duty? A: Yes. As I have explained in Law Review (June 2016) and ther arjcles, there are nine exempjns frm the five-year limit. That is there are nine kinds f service that d nt cunt tward exhausjng the individual s five-year limit. A perid f unifrmed service that is required, beynd five years, t cmplete an inijal perid f bligated service des nt cunt tward exhausjng the individual s five-year limit. 16 If Alice leaves acjve duty at the end f the inijal acjve duty perid t which she cmmiued herself in her enlistment cntract, and if she meets the ther fur USERRA cndijns, she will have the right t reemplyment. Q: Bradley Barnes, age 33, graduated frm high schl in 2002 and shrtly thereaoer enlisted in the Army. He remained n acjve duty fr ten years, leaving in late He then went t wrk fr DWI, fr his first civilian jb. Nw, five years later, Bradley wants t reenlist and C.F.R (bld quesjn in riginal) U.S.C. 4312(c)(1).

6 return t acjve duty. Bradley has already been n acjve duty well ver five years. Can Bradley return t acjve duty fr fur r five years and have the right t reemplyment at DWI? A: Yes. Bradley s five-year limit nly cunts service that he has perfrmed with respect t the emplyer relajnship fr which a persn seeks reemplyment. 17 Bradley s decade f acjve duty ( ) des nt cunt tward his five-year limit with DWI. Q: Cnnie Cx is a recruit that I have signed up she is in the DEP and is expected t reprt t basic training in February In the meanjme, she and ther DEP members are required t shw up fr DEP meejngs n a weekly basis, n Wednesday aoernns. We need t have the DEP recruits keep in tuch with us, s that they dn t drio away and lse interest during the mnths leading up t their basic training reprt dates. Cnnie has missed the last three Wednesday meejngs. She said that she cannt make it t ur recruijng ffice n Wednesday aoernns because she is wrking at DWI and her wrk day is nt ver unjl 5:30 pm. Des USERRA give Cnnie the right t Jme ff frm her civilian jb t aiend DEP meejngs? A: N. I have already quted USERRA s definijn f service in the unifrmed services. The definijn is brad, but it des nt include DEP meejngs. Cnnie des nt have a jb-prtected right t miss wrk, even withut pay, fr DEP meejngs. If yu (the Army) really need Cnnie t auend these DEP meejngs, yu will need t arrange t cnduct meejngs fr her utside her civilian wrk hurs. Q: David Davis is a yung man that I am trying t recruit fr the Army. We need fr him t g the Military ExaminaJn and Prcessing StaJn (MEPS) fr a physical and t take the Armed Frces Qualifying Test (AFQT). The MEPS is nt pen n weekends. David will need t miss at least ne day f wrk, and maybe tw days, fr his MEPS appintment. Des USERRA give David the right t Jme ff frm his DWI jb fr a MEPS appintment? A: Yes. USERRA s definijn f service in the unifrmed services (quted abve) includes a perid fr which a persn is absent frm a psijn f emplyment fr the purpse f an examinajn t determine the fitness f the persn t perfrm any such duty. 18 If David gives the emplyer njce f the MEPS appintment and reprts back t wrk the next wrk day aoer cmplejn f the appintment, he is enjtled t reemplyment under USERRA, even if he flunked the physical r the AFQT. A nn-trivial percentage f flks wh g t the MEPS are fund unsuitable fr military service, usually fr health reasns. I suggest that yu try t wrk it ut fr David t have a MEPS appintment n a day when he is nt scheduled t wrk at DWI, r when he can btain a vacajn day withut explaining the reasn U.S.C. 4312(c) U.S.C. 4303(13).

7 Q: Edwina Edwards is a recruit in the DEP pl at ur recruijng stajn. She has rders t reprt t basic training at Frt Jacksn, Suth Carlina n January 2, Edwina wants t leave her DWI jb n December 10, 2017, t have Jme t get her affairs in rder and t say gdbye t her parents befre she reprts t acjve duty right aoer the first f the year. Des Edwina have the right t d that withut giving up her ptenjal reemplyment rights at DWI? A: Yes. The DOL USERRA RegulaJn prvides: Must the emplyee begin service in the unifrmed services immediately aoer leaving his r her emplyment psijn in rder t have USERRA reemplyment rights? N. At a minimum, an emplyee must have enugh Jme aoer leaving the emplyment psijn t travel safely t the unifrmed service site and arrive fit t perfrm the service. Depending n the specific circumstances, including the durajn f service, the amunt f njce received, and the lcajn f the service, addijnal Jme t rest, r t arrange affairs and reprt t duty, may be necessitated by reasn f service in the unifrmed services. The fllwing examples help t explain the issue f the perid f Jme between leaving civilian emplyment and beginning f service in the unifrmed services: (a) If the emplyee perfrms a full vernight shio fr the civilian emplyer and travels directly frm the wrk site t perfrm a full day f unifrmed service, the emplyee wuld nt be cnsidered fit t perfrm the unifrmed service. An absence frm that wrk shio is necessitated s that the emplyee can reprt fr unifrmed service fit fr duty. (b) If the emplyee is rdered t perfrm an extended perid f service in the unifrmed services, he r she may require a reasnable perid f 1me ff frm the civilian jb t put his r her persnal affairs in rder, befre beginning the service. Taking such 1me ff is als necessitated by the unifrmed service. (c) If the emplyee leaves a psijn f emplyment in rder t enlist r therwise perfrm service in the unifrmed services and, thrugh n fault f his r her wn, the beginning date f the service is delayed, this delay des nt terminate any reemplyment rights. 19 Q: Frank Fx, age 29, is a manager at DWI, with an incme well int six figures. Althugh he has been making a lt f mney, he has been spending mre, fr an expensive Manhaian apartment and an expensive autmbile lease, amng ther expenses. Frank has enlisted in the Army and will be reprjng t Officer Candidate Schl in December. Frank is a bachelr with n children. As an fficer candidate and junir fficer, he des nt need and cannt affrd the expensive autmbile and apartment, but the apartment lease des nt expire unjl June 2018 and the autmbile lease nt unjl August Des USERRA give Frank the right t terminate the autmbile lease and the apartment lease? C.F.R (bld quesjn in riginal, emphasis by italics supplied).

8 A: N, but the Servicemembers Civil Relief Act (SCRA) gives him that right. The perjnent SCRA secjn is as fllws: TerminaJn f residenjal r mtr vehicle leases (a) TerminaJn by lessee. (1) In general. The lessee n a lease described in subsecjn (b) may, at the lessee's pjn, terminate the lease at any Jme aoer-- (A) the lessee's entry int military service; r (B) the date f the lessee's military rders described in paragraph (1)(B) r (2)(B) f subsecjn (b), as the case may be. (2) Jint leases. A lessee's terminajn f a lease pursuant t this subsecjn shall terminate any bligajn a dependent f the lessee may have under the lease. (b) Cvered leases. This secjn applies t the fllwing leases: (1) Leases f premises. A lease f premises ccupied, r intended t be ccupied, by a servicemember r a servicemember's dependents fr a residenjal, prfessinal, business, agricultural, r similar purpse if-- (A) the lease is executed by r n behalf f a persn wh thereaoer and during the term f the lease enters military service; r (B) the servicemember, while in military service, executes the lease and thereaoer receives military rders fr a change f permanent stajn r t deply with a military unit, r as an individual in supprt f a military perajn, fr a perid f nt less than 90 days. (2) Leases f mtr vehicles. A lease f a mtr vehicle used, r intended t be used, by a servicemember r a servicemember's dependents fr persnal r business transprtajn if-- (c) Manner f terminajn. (A) the lease is executed by r n behalf f a persn wh thereaoer and during the term f the lease enters military service under a call r rder specifying a perid f nt less than 180 days (r wh enters military service under a call r rder specifying a perid f 180 days r less and wh, withut a break in service, receives rders extending the perid f military service t a perid f nt less than 180 days); r (B) the servicemember, while in military service, executes the lease and thereaoer receives military rders-- (i) fr a change f permanent stajn-- (I) frm a lcajn in the cnjnental United States t a lcajn utside the cnjnental United States; r (II) frm a lcajn in a State utside the cnjnental United States t any lcajn utside that State; r (ii) t deply with a military unit, r as an individual in supprt f a military perajn, fr a perid f nt less than 180 days.

9 (1) In general. TerminaJn f a lease under subsecjn (a) is made-- (A) by delivery by the lessee f wriuen njce f such terminajn, and a cpy f the servicemember's military rders, t the lessr (r the lessr's grantee), r t the lessr's agent (r the agent's grantee); and (B) in the case f a lease f a mtr vehicle, by return f the mtr vehicle by the lessee t the lessr (r the lessr's grantee), r t the lessr's agent (r the agent's grantee), nt later than 15 days aoer the date f the delivery f wriuen njce under subparagraph (A). (2) Delivery f njce. Delivery f njce under paragraph (1)(A) may be accmplished-- (A) by hand delivery; (B) by private business carrier; r (C) by placing the wriuen njce in an envelpe with sufficient pstage and with return receipt requested, and addressed as designated by the lessr (r the lessr's grantee) r t the lessr's agent (r the agent's grantee), and depsijng the wriuen njce in the United States mails. (d) EffecJve date f lease terminajn. (1) Lease f premises. In the case f a lease described in subsecjn (b)(1) that prvides fr mnthly payment f rent, terminajn f the lease under subsecjn (a) is effecjve 30 days aoer the first date n which the next rental payment is due and payable aoer the date n which the njce under subsecjn (c) is delivered. In the case f any ther lease described in subsecjn (b)(1), terminajn f the lease under subsecjn (a) is effecjve n the last day f the mnth fllwing the mnth in which the njce is delivered. (2) Lease f mtr vehicles. In the case f a lease described in subsecjn (b)(2), terminajn f the lease under subsecjn (a) is effecjve n the day n which the requirements f subsecjn (c) are met fr such terminajn. (e) Arrearages and ther bligajns and liabilijes. (1) Leases f premises. Rent amunts fr a lease described in subsecjn (b)(1) that are unpaid fr the perid preceding the effecjve date f the lease terminajn shall be paid n a prrated basis. The lessr may nt impse an early terminajn charge, but any taxes, summnses, r ther bligajns and liabilijes f the lessee in accrdance with the terms f the lease, including reasnable charges t the lessee fr excess wear, that are due and unpaid at the Jme f terminajn f the lease shall be paid by the lessee. (2) Leases f mtr vehicles. Lease amunts fr a lease described in subsecjn (b)(2) that are unpaid fr the perid preceding the effecjve date f the lease terminajn shall be paid n a prrated basis. The lessr may nt impse an early terminajn charge, but any taxes, summnses, Jtle and registrajn fees, r ther bligajns and liabilijes f the lessee in accrdance with the terms f the lease, including reasnable charges t the lessee fr excess wear r use and mileage, that are due and unpaid at the Jme f terminajn f the lease shall be paid by the lessee.

10 (f) Rent paid in advance. Rents r lease amunts paid in advance fr a perid aoer the effecjve date f the terminajn f the lease shall be refunded t the lessee by the lessr (r the lessr's assignee r the assignee's agent) within 30 days f the effecjve date f the terminajn f the lease. (g) Relief t lessr. Upn applicajn by the lessr t a curt befre the terminajn date prvided in the wriuen njce, relief granted by this secjn t a servicemember may be mdified as jusjce and equity require. (h) Misdemeanr. Any persn wh knwingly seizes, hlds, r detains the persnal effects, security depsit, r ther prperty f a servicemember r a servicemember's dependent wh lawfully terminates a lease cvered by this sec1n, r wh knwingly interferes with the remval f such prperty frm premises cvered by such lease, fr the purpse f subjec1ng r anemp1ng t subject any f such prperty t a claim fr rent accruing subsequent t the date f termina1n f such lease, r anempts t d s, shall be fined as prvided in 1tle 18, United States Cde, r imprisned fr nt mre than ne year, r bth. (i) DefiniJns. (1) Military rders. The term "military rders", with respect t a servicemember, means fficial military rders, r any njficajn, cerjficajn, r verificajn frm the servicemember's cmmanding fficer, with respect t the servicemember's current r future military duty status. (2) CONUS. The term "cnjnental United States" means the 48 cnjguus States and the District f Clumbia. 20 Q: Frank als has credit card debts carrying high interest rates 20% r mre. Des the SCRA give him the right t reduce these high interest rates aoer he enters acjve duty? A: Yes. The perjnent SCRA secjn is as fllws: Maximum rate f interest n debts incurred befre military service (a) Interest rate limitajn. (1) LimitaJn t 6 percent. An bligajn r liability bearing interest at a rate in excess f 6 percent per year that is incurred by a servicemember, r the servicemember and the servicemember's spuse jintly, befre the servicemember enters military service shall nt bear interest at a rate in excess f 6 percent-- (A) during the perid f military service and ne year thereaoer, in the case f an bligajn r liability cnsisjng f a mrtgage, trust deed, r ther security in the nature f a mrtgage; r (B) during the perid f military service, in the case f any ther bligajn r liability. (2) Frgiveness f interest in excess f 6 percent. Interest at a rate in excess f 6 percent per year that wuld therwise be incurred but fr the prhibijn in paragraph (1) is frgiven U.S.C (emphasis supplied).

11 (3) PrevenJn f accelerajn f principal. The amunt f any peridic payment due frm a servicemember under the terms f the instrument that created an bligajn r liability cvered by this secjn shall be reduced by the amunt f the interest frgiven under paragraph (2) that is allcable t the perid fr which such payment is made. (b) ImplementaJn f limitajn. (1) WriUen njce t creditr. In rder fr an bligajn r liability f a servicemember t be subject t the interest rate limitajn in subsecjn (a), the servicemember shall prvide t the creditr wriuen njce and a cpy f the military rders calling the servicemember t military service and any rders further extending military service, nt later than 180 days aoer the date f the servicemember's terminajn r release frm military service. (2) LimitaJn effecjve as f date f rder t acjve duty. Upn receipt f wriuen njce and a cpy f rders calling a servicemember t military service, the creditr shall treat the debt in accrdance with subsecjn (a), effecjve as f the date n which the servicemember is called t military service. (c) Creditr prtecjn. A curt may grant a creditr relief frm the limitajns f this secjn if, in the pinin f the curt, the ability f the servicemember t pay interest upn the bligajn r liability at a rate in excess f 6 percent per year is nt materially affected by reasn f the servicemember's military service. (d) DefiniJns. In this secjn: (1) Interest. The term "interest" includes service charges, renewal charges, fees, r any ther charges (except bna fide insurance) with respect t an bligajn r liability. (2) ObligaJn r liability. The term "bligajn r liability" includes an bligajn r liability cnsisjng f a mrtgage, trust deed, r ther security in the nature f a mrtgage. (e) Penalty. Whever knwingly vilates subsecjn (a) shall be fined as prvided in Jtle 18, United States Cde, imprisned fr nt mre than ne year, r bth. 21 Frank incurred this credit card debt as a civilian, befre entering acjve duty. His entry n acjve duty has materially (adversely) affected his ability t meet his financial bligajns, in that his salary as an fficer candidate and a secnd lieutenant will be substanjally less than the sixfigure salary he had been receiving as a manager at DWI. Thus, he is enjtled t get the credit card interest rates reduced t 6%, while he is n acjve duty. While he is n acjve duty, Frank shuld pay as much as he can t reduce and eventually eliminate these credit card debts. Any payments that he makes while n acjve duty will be applied t principal and interest at the 6% rate, nt the cntract rate f 20% r mre. When Frank leaves acjve duty, the interest rates will revert t the higher rates, if there is a balance remaining at that Jme. The difference between 6% and the higher cntract rate is frgiven, nt just deferred U.S.C