The 2010 NDAA Air Force Reserve Analysis

By David Small, Director of Communications and Air Force Affairs

The 2010 National Defense Authorization Bill conference report was passed by the Senate last night. The bill will now go to the President for signature. Below is a synopsis and analysis of items included in the bill of interest to the Reserve Officers Association Air Section.

Report on the procurement of 4.5 generation fighter aircraft: The bill contains a provision that would report on various aspects of potential procurement of 4.5 generation fighter aircraft. This is a reflection of Congress’ stance that the Air Force's investment strategy of transition to a smaller, more flexible, lethal and capable strike fighter force will be challenging. As the Air Force implements that strategy, Congress expects the Air Force to analyze the viability of procuring additional 4.5 generation fighter aircraft under a multiyear contract, specifically looking at F–15s, F–16s, and F–18s that have advanced radar, data-link and avionics capabilities and the capability to deploy advanced armaments. The Air Force has been very vocal in the past about not funding 4.5 generation fighters; however this was previous to the decision to end the F-22 production line this summer. Chief of Staff of the Air Force Gen Norton Schwartz said “Why would I want to dissipate a limited pool of resources on a 4.5 generation fighter, when I can purchase a fifth generation platform?” Procurement of 4.5 generation fighters will significantly affect the Air National Guard. While the ANG does not currently support such an acquisition, their stance is primarily to stay in line with the total force opinion. Gen Wyatt might as well have crossed his fingers and winked when he spoke at the AFA Symposium on this topic, leaving the audience to understand he really wouldn't mind some 4.5 generation fighters!

Aircraft funding authorizations:

• $192.3 million, for F-22s modifications.
• $440 million, to support the contract for the KC-X air tanker program
• $319 million for 8 Joint Cargo Aircraft
• $358 million for 4 C-130Js
• $437 million for 5 CV-22s.

F-22 export version: Okay, I’m cheating by putting this topic in here because it wasn’t mentioned in the Authorization bill, but might be a part of the Appropriations bill if the Senate has its way. Question for readers: Should the Air Force be burdened with the acquisition and development of an export version of an aircraft they couldn’t buy more of when they have so much else on their plate? What is the benefit? It would keep the F-22 line open to bridge the fifth generation fighters until the JSF is in full production, but is that worth it given other acquisition priorities?

Limitation on retirement of C–5: The NDAA contained a provision preventing the Air Force from retiring any C–5 aircraft until certain conditions are met regarding the operational testing of the C-5 Reliability Enhancement and Reengining Program (RERP). They also want to see the economic and risk analyses leading to any decision to retire these aircraft. Read ROA’s resolution regarding the modification of C-5s. The bill does not change the Air Force’s current strategic airlift force structure from the 316 (213 C-17s and 111 C-5s) aircraft on the books, even though the Defense appropriations bill will purchase between 3 (House) and 10 (Senate) C-17s. This language has significant implications for the Guard and Reserve who fly the oldest C-5 aircraft, which are the last in line for the RERP program. This inclusion is a first step toward the Air Force’s ability to retire these aircraft and replace them with the expected additional C-17s proposed in the appropriations bill.

Next generation bomber aircraft: The bill declares the United States support to develop next-generation bomber technologies. Read ROA’s resolution regarding a new heavy bomber. Really? for something that was nicknamed the 2018 bomber, I should hope we had been a little further along with this program before the SECDEF put the kabash on it last April.

C-130 Aviation Modernization Program: Couldn’t find it? That’s because it wasn’t included. Despite ROA’s resolution advocating the need to continue this program, the Congress did not authorize money toward it this year. Read a more in depth blog about this topic by clicking here.

F-35 Alternative Engine: The NDAA contained funding for the General Electric-Rolls Royce F136 engine as an alternate to the Pratt & Whitney F135 that currently powers the F-35. The Air Force has publicly stated it does not support an alternative engine. The Administration has said the alternate engine might engage a veto, but CQ Today reports that the President Obama now may sign the policy bill with the F136 funding intact—waiting to kill it through the spending bill that will follow shortly. Who will fall on their sword first?

National Guard and Reserve Equipment: This section authorizes $600 million ($150 million less than last year) for NGREA, in stark contrast to the currently proposed Senate appropriations bill which includes $1.5 billion and its House counterpart with only $500 million for this account. That number, broken down, stands to provide $135 million to the Army Reserve; $70 million each to the Air Force and Navy Reserve; $50 million to the Marine Corps Reserve; $1 billion to the Army National Guard and $175 million to the Air National Guard. These figures are over double last year’s numbers. We are currently waiting to see the conference report on the appropriations bill, but it is unfavorable to see a reduced authorization. Read ROA’s resolution regarding NGREA.

Manpower: The authorization bill increased the Air Force Reserve by 2,100 billets to coincide with the significant increase in the active duty end strength. Additionally, the number of Air Reserve Technicians and AGR billets in both the Air Guard and Air Force Reserve increased considerably over other services in reaction to the active duty end strength change. Apparently the browbeating to increase the size of the Reserve concurrent with the Active Duty increase worked. Gen Stenner will add nearly 4,000 billets over the next three years if we stick to the current presidential budget plan.

ROA to review advocacy position on Don't Ask, Don't Tell

By David Small, Communications and Air Force Affairs Director

At its convention in February, the members of the Reserve Officers Association will review a number of its legislative resolutions, which make up its priorities on Capitol Hill. One such resolution up for debate this year is whether to renew, change or delete its resolution on the federal law regarding homosexuals in the Armed Forces. At its 2007 convention there was heated debate before passage.

Society’s acceptance of homosexuality has changed greatly over the last 60 years. A question arises on whether the military policy of allowing homosexuals to serve should be as tolerant.

Don’t Ask, Don’t Tell has described the Military’s policy since 1993. Based on Congressional action, that year the Pentagon’s policy was updated to say “Sexual orientation will not be a bar to service unless manifested by homosexual conduct. The military will discharge members, who engage in homosexual conduct, which is defined as a homosexual act, a statement that the member is homosexual or bisexual, or a marriage or attempted marriage to someone of the same gender.”

Sixteen years have passed and a new White House administration is examining whether this policy should be updated.

Concerns are still voiced that the presence of open gays in the military impairs the accomplishment of the military mission, destroys esprit de corps, and would violate heterosexual's privacy rights. Some compare it to the integration of women or African-Americans into the military, which caused consequences the armed forces leadership had to deal with. However, the primary argument of those who oppose ending the ban revolves around unit cohesion and combat effectiveness.

An academic paper written on Don’t Ask, Don’t Tell has received notoriety of recent for being published in Joint Forces Quarterly’s current issue. The article, “The Efficacy of Don’t ask Don’t Tell,” written by Air Force Col. Om Prakash is a dispassionate argument that states there is currently no empirical data to support the unit cohesion and combat effectiveness argument.

There is, however, plenty of empirical data that could be had now after 16 years of this law being in effect.

Two current, active cases within the Air Force alone could provide data. The first being the case of a lesbian nurse named Maj Margaret Witt. In May, a deadline passed for the government to appeal to the Supreme Court in her case. The San Francisco court that heard her case ordered the government to prove that the presence of Major Witt was a threat to military discipline and cohesion. The case will now continue to travel through the lower court appeals process.

A second case that could provide data is the case of Lt. Col. Victor Fehrenbach, an F-15E Weapons System Officer currently assigned as the assistant director of operations for the 366th Operations Support Squadron at Mountain Home AFB, Idaho. His case is one of the first being considered under Secretary of Defense Robert Gates dictum that perhaps there is a more compassionate way to interpret the law for individuals who didn’t tell and abided by the law but are outed nonetheless.

Other examples of notoriety exist as well. Army National Guard Lt. Dan Choi, a West Point graduate and Iraq veteran served in his New York unit for a period of time with his soldiers knowing his status as a gay man. And Army Sgt. Darren Manzella who came out on 60 Minutes served for over 18 months out of the closet, even deploying as a medic to the Middle East during that time.

Many people who have served over the last two decades can probably share stories about serving with openly gay individuals. Most would be supportive, but some would be adverse, which highlights the mixture of opinions on whether openly gay people should be allowed to serve.

DoD reports that nearly 12,000 troops have been dismissed under the policy approved by President Clinton in 1993. Discharges peaked at 1,273 in 2001 and have fallen sharply since the war began. Many speculate that the needs to deploy qualified Soldiers, Sailors, Marines and Airman have outweighed the urgency to discharge members over sexual preferences.

Twenty-five western countries have no restrictions on professed homosexuals in their militaries, so the question is why a prohibition should exist for the United States?

“We should not be punishing patriotic Americans who have stepped forward to serve the country," President Barak Obama said in a speech to the Human Rights Campaign. “We should be celebrating their willingness to step forward and show such courage, especially when we are fighting two wars.”

Secretary of the Army John McHugh told Army Times that the Army would be ready to lift the ban on gays serving openly if both Congress and President Obama decided to repeal "don't ask, don't tell”. But he added that gays might be allowed to serve in some units but not others.

A 2006 Zogby International poll of military members found that only 26% were in favor of gays and lesbians serving in the military while 37% opposed gays and lesbians serving, and 37% expressed no preference or were unsure.

Would enlistment of openly gay serving members help or hinder the military’s mission? This blog will allow you to share your opinion. We also encourage you to join other ROA members at the National Convention February 7-10 in Washington D.C. to join the discussion on the future of ROA’s resolution 07-26 as well as other issues.

My medical malpractice claim is "Feres-Barred," What's that?

By CAPT Sam Wright, Director, Servicemembers Law Center

Q: I retired from the Army a few months ago, with 23 years of active duty. I had abdominal surgery shortly before I retired. I have had serious, unexplained digestive problems which my civilian doctor was unable to explain or treat. Finally, she scheduled me for exploratory surgery. The surgeon found a piece of a sponge in my gut—it must have been left there during the Army surgery.

I made an appointment with an attorney who specializes in medical malpractice cases. This seems like an “open and shut” case of malpractice, but the lawyer refused to take my case. He told me that my malpractice claim is “Feres barred.” What does that mean?

A: The attorney was referring to a Supreme Court case styled Feres v. United States, 340 U.S. 135 (1950). This citation means that the case can be found in Volume 340 of United States Reports (which includes only United States Supreme Court decisions), and the decision starts on page 135. The attorney is correct that, under current law, it would be a waste of time for you to file suit against the Federal Government on this claim.

The traditional rule in Great Britain and the United States is “the King can do no wrong” or “sovereign immunity.” This means that you cannot sue the sovereign (state or federal) without the sovereign’s consent. That consent was not generally granted until well into the 20^th Century, and it is still withheld as to some kinds of claims.

In 1946, Congress enacted the Federal Tort Claims Act (FTCA), a statute that permits individuals to sue the Federal Government and collect money damages for torts committed by federal employees (including military personnel) in the course and scope of their employment, if such negligent or wrongful acts result in personal injury, wrongful death, or property damage. The Federal Government is generally liable for money damages for the negligent or wrongful act of its employee, if and to the same extent that a private person or corporation would be liable, in accordance with the law of the state where the alleged tort occurred.

As enacted in 1946, the FTCA neither expressly permitted nor expressly forbade claims by military personnel, and the issue came up in several federal court cases. Two circuit courts of appeals held that the FTCA impliedly precluded claims by military personnel, and one circuit held that the FTCA authorized such claims. The Supreme Court granted certiorari (discretionary review) in all three cases and consolidated them for decision, in order to resolve this conflict among the circuits.

The Supreme Court held, “We conclude that the government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service. Without exception, the relationship of military personnel to the government has been governed exclusively by federal law. We do not think that Congress, in drafting this act, created a new cause of action dependent on local law for service-connected injuries or death due to negligence. We cannot impute to Congress such a radical departure from established law in the absence of express congressional command.” Feres, 340 U.S. at 146.

The Court’s unanimous decision also acknowledged uncertainty in ascertaining the intent of Congress on this question: “There are few guiding materials for our task of statutory construction. No committee reports or floor debates disclose what effect the statute [FTCA] was designed to have on the problem before us, or that it even was in mind. Under these circumstances, no conclusion can be above challenge, but if we misinterpret the act, at least Congress possesses a ready remedy.” Feres, 340 U.S. at 138.

The “ready remedy” to which the Supreme Court referred was to amend the FTCA. If Congress wants to permit servicemembers to recover for personal injury or wrongful death incident to their service, Congress can amend the statute to permit such recovery. In the 59 years since the Supreme Court decided Feres, scores of bills to repeal the Feres Doctrine have been introduced, but no such law has been enacted. At various times, such bills have passed the House of Representatives or the Senate, but no such bill has passed both the House and Senate in the same Congress.

On October 7, 2009, the House Judiciary Committee approved H.R. 1478, the proposed “Military Medical Accountability Act of 2009.” The committee vote was 14-12, indicating that this is a very controversial bill and its passage is by no means certain. The bill is named in honor of the late Carmelo Rodriguez, a Marine who died of melanoma in 2007. A Navy doctor correctly diagnosed melanoma several years previously, but no one told Rodriguez or arranged for timely medical care that might well have saved his life. His family’s wrongful death claim was barred by the Feres Doctrine. Maybe this Congress will see a change in this doctrine. We will keep the readers informed.

The “Thomas” service on the Library of Congress website (www.loc.gov) summarizes H.R. 1478 as follows: “Amends the Federal Tort Claims Act to allow claims for damages to be brought against the United States for personal injury or death of a member of the Armed Forces arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions that is provided by persons acting within the scope of their office or employment by or at the direction of the government inside the United States.”

Q: I can see where it would be contrary to good order and discipline to permit soldiers to sue their commanding officers, or the government, for alleged negligence in the conduct of combat operations. I don’t see how allowing me to sue for the negligence of an Army doctor, in leaving a piece of a sponge inside my body during surgery, in any way implicates issues of military discipline. Does the Feres Doctrine apply to medical malpractice cases?

A: Yes. Two of the three cases that the Supreme Court consolidated for decision were medical malpractice cases. The Feres case itself involved a barracks fire that resulted in the death of Lieutenant Rudolph J. Feres, but the other two cases were medical malpractice cases. One of those cases involved a towel left inside a patient during surgery. When the towel was removed in subsequent surgery months later, “Brooke Army Medical Center” could be read on it.

Q: I have heard of successful medical malpractice claims brought by military retirees and dependents. Are those claims permitted by the Feres Doctrine?

A: Yes. Military retirees and dependents are permitted to sue and recover for their own injuries or deaths. If the sponge left in your body had resulted in your death, your widow’s wrongful death claim would have been barred by the Feres Doctrine.

In your case, the malpractice occurred while you were on active duty, but the bad effects became manifest after you retired. Your status at the time of the alleged negligence controls, and your claim is barred. The result would be different if you had undergone the surgery as a retiree.

Fix early retirement for the Guard and Reserve as a force management tool

by David Small, ROA director of Air Force Affairs

For the past number of years, the topic of early retirement has been on the lips of Reservists, Reserve Officers Association legislative advocates, and key supporters in Congress. Today's Reserve duty is a far cry from what was imagined when a non-regular retirement was first envisioned. With the reserve participating as a key component in the operational force at tempos that prevent them from maturing their civilian jobs, an equitable retirement plan must be in place to ensure use of the Reserve Components is sustainable.

The Reserve Officers Association does not advocate for individual benefits unless there is a valid national security basis to do so and the retirement age reduction is one of ROA's top legislative priorities.

"The way we rely on our National Guard and Reserve has fundamentally changed since September 11, 2001 ... We need our military personnel and their families to know that we stand behind them and honor the great sacrifices they make on behalf of our nation." Sen. Saxby Chambliss said in July.

The Reserve retirement bills of the 107th Congress were the first steps in rebalancing that equation for the twenty-first century. They were the start of the debate and in 2005 the Senate finally included a variation of early retirement in its version of the National Defense Authorization Act, only to have it stomped out during conference.

The legislation by Sen. Saxby Chambliss (R-GA) proposed an early retirement that could be earned through mobilization on contingency orders. For every 90 days of deployed service, the Guardsman or Reservists reduces his or her retirement from age 60 by 3 months.

Basing earlier retirement on mobilization in support of contingency orders after 9/11 excluded individuals who have supported the GWOT under different types of orders, and others who provided contributing support that permits Active duty personnel to be deployed. While controversial due to it being tied to contingency orders only, it was a stepping stone.

Twelve proposals for early retirement were introduced in 109th Congress. Eight were for early retirement for Reservists at age 55, two were for a tiered reduction of one year for every two years served over 20 years of service, and the last was three months reduction in the retirement age for every 90 days in support of a contingency operations.

In 2007 through written testimony, ROA proposed an early retirement plan that was based on accruement of retirement points. Early retirement should not be based on the type of service, but on the aggregate of duty. It shouldn't matter if a member's contributions were paid or non-paid; on inactive duty or active duty for training, special works or for mobilization.

This approach would provide the Guard or Reserve members with an element of personal control to determine when they retire and will encourage increased frequency of service and service beyond 20 years.

That year, H.R. 3449 was introduced by Rep. Joe Wilson (SC), which would have provided eligibility for earlier Reserve Component retirement based on accumulated duty as measured by the total of accrued retirement points.

Finally, in 2008, the National Defense Authorization Act recognized the necessity and drive of past initiatives and included an early retirement provision for those Guard and Reserve members who are mobilizing after January 28, 2008 – the date the NDAA was passed – but left ineligible 600,000 who have already served since 9/11/2001. While a huge win for Reservists, this plan this is not equitable.

The reason given by Congressional leaders is that it would cost $2.1 billion over ten years (original estimates were $1.8 billion). In a year when money is given to banks and automakers, it is not fair that those who mobilize to defend this country are ignored. Reservists and National Guardsmen are taking the same risks as Active Duty members who are deployed, yet receive different retirement compensation.

While blatantly unfair on the surface, the bigger issue is that there is no incentive for Citizen Warriors to continue their volunteer spirit, or serve past 20 years. Both longevity of service and volunteerism are key components to sustaining Reserve operations during today's operational tempo. Early retirement, when viewed with these considerations, is a strong force management tool.

"These citizen soldiers have grown from a strategic reserve to an operation force that has seen combat overseas. Their service and sacrifice should be counted." Rep. Joe Wilson said in February.

Among the 600,000, over 200,000 Reserve Component members have been mobilized more than once. These young men and women have served and sacrificed, putting their private lives and civilian careers on hold to mobilize in support of our country. This provision would pay back some of the retirement accruement lost from their civilian job. To exclude their contributions is inconsiderate.

Here are the facts: Congress passed Early Retirement based on 90 days reduction for 90 day service. The new program began on January 28, 2008 for mobilization thereafter. All earlier service was excluded including those who had been called up between 9/11/2001 and 1/2008. Over 700,000 Guard and Reserve have mobilized, but the service of 600,000 Reserve Component members is ineligible. These individuals will have to do additional service to reduce their retirement age.

ROA was the first out of the gate to take action, working with Senators Saxby Chambliss (R-GA) and John Kerry (D-Mass.) to introduce a corrective measure. They reintroduced legislation to correct the eligibility date to September 11, 2001. While the bill was not included in the mark-up of the fiscal year 2010 National Defense Bill (S.1390), Sens. Kerry and Chambliss were successful at adding it as an amendment (Sec 660). The Senate passed the NDAA on July 23, 2009. Unfortunately, it was not included in the House version of the National Defense Authorization and was ultimately canned during conference in October.

Click here to read Kerry and Chambliss' letter to colleagues.

"Providing our Guard and Reserve retroactive credit for retirement benefits they've rightfully earned is one small way we can honor their tremendous sacrifices." Sen. John Kerry said in July.

As ROA pointed out in its 2009 testimony to the House Armed Services Committee, ROA doesn't view this congressional solution implemented in 2008 as the final retirement plan. The Commission on the National Guard and Reserve recommended that Congress should amend laws to place the active and reserve components into the same retirement system. Secretary of Defense Roberts Gates refers to the Tenth Quadrennial Review of Military Compensation's comprehensive review of the military retirement systems for suggested reform. The later report suggests a retirement pay equal to 2.5 percent of basic pay multiplied by the number of years of service.

Under a continuum of service, this approach would provide both the Active or Reserve Component members with an element of personal control to determine when they retire and will encourage increased frequency of service and service beyond 20 years within the Reserve.

The changes passed in the non-regular retirement by the first session of the 110th Congress were the first changes to legislation that was enacted since 1949 when Public Laws 80-460 and 80-810 defined training, pay categories and retirement for the Reserve component. Fifty-nine years later the Reserve Components are still operating under these early laws with few significant changes, even though Reserve participation has increased dramatically, and DoD policy has changed the Reserves from a strategic to an operational force.

Even corrected, the new benefit is not the final solution for earlier retirement for the Reserve Component. Several reasons support further earlier retirement adjustments for the Reserve Components by:

• Correcting existing early retirement provisions to include all Guard and Reserve members who have served since 9/11/2001.
• Passing further reduced retirement options, coupled with the removal of the artificial barriers of mandatory retirement and separation dates, will increase force management options.
• Thoroughly evaluating ROPMA (Reserve Officer Personnel Management Act) to identify other ways to increase flexibility in force management.
• Recognizing that a “Gray Area Retired Reserve” zone (individuals who reach their mandatory removal date and do not receive a retirement annuity) does not present a good business case. Technological changes and medical advances have allowed most services to move beyond an age-centric management principle.
• Combining the Pentagon’s continuum of service policy that allows active and reserve component members easier transition between active duty and reserve status with a compensation and retirement package transformation.

The Reserve forces are no longer just a part-time strategic force but are an integral contributor to our nation's operational ability to defend our soil, assist other countries in maintaining global peace, and fight the global war on terror. The ROA believes that if the Pentagon is asking more of its Guard and Reserve, it has to give more back in return. Improvements with an earlier retirement option needed to be considered.

Guard and Reserve members feel that with the change in the roles and missions of the Reserve Component, the contract has also changed. Informal surveys keep indicating that earlier retirement is the top issue asked for by Guardsmen and Reservists. They ask why, if they are facing the same risks as Active duty, is there a 20 year difference in access to retirement pay.

ROA fears that retention problems will soon be on the increase. Reservists fully understand their duty and are proud to serve. However, many in the Guard and Reserve are currently weighing factors that affect their decision to stay in the military. While the statistical average retirement for Guard and Reserve is at 24 years, more and more Reserve Component members are choosing to retire once they qualify at 20 years of service.

The high costs of personnel turnover and retraining should also be fully considered when measuring the affordability of benefits and compensation for the Active and Reserve components. Lost experience is one intangible that is difficult to measure in dollars.

Click here for ROA's position paper on this topic and bring it to your Representatives in Congress. A grass roots initiative on this issue will help support the campaign.

Click here for the ROA resolution drafted by its 65,000 members on this topic.

Child Custody and Deployment

By CAPT Sam Wright, director, Servicemembers Law Center

I have received several e-mails and telephone calls about child custody issues related to the deployment of a parent with sole or primary custody of a child. You went through a contentious divorce with your ex-spouse, and the court awarded you primary custody of the child. But now you are being mobilized and deployed to Afghanistan. What happens to the child?

You want to hide from your ex-spouse and the court your impending mobilization and squirrel away the child to an undisclosed location, where your parents or someone you trust will care for the child during the deployment. This is exactly the wrong thing to do.

The court gave you primary custody of the child because the court found that arrangement to be in the best interest of the child, among the alternatives available at the time the court made that determination. The court retains jurisdiction to make a new “best interests of the child” determination whenever there is a material change in circumstances. Your deployment is most certainly a material change in circumstances.

You having primary custody was Plan A, approved by the court. You don’t get to decide on Plan B, the court does. Your ex-spouse is the other parent, and if he or she wants custody during your deployment, the court will most likely grant custody to the other parent, absent clear evidence of abuse or neglect by that other parent.

You should disclose to the other parent your impending mobilization as soon as you learn of it and discuss with the other parent the custody arrangements during your deployment. If you and your ex-spouse cannot agree on custody arrangements, you must go back to court for the court to decide the custody arrangement. Please see Law Review 0951, by Colonel John S. Odom, Jr. and myself.