Congress Must Fix 10 U.S. Code § 12304b

Congress Must Fix 10 U.S. Code § 12304b
U.S. Air Force photo by SrA Jonathan Young
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Late last year the Stars and Stripes reported the saga of over 200 Marine reservists who were involuntarily mobilized and sent to Honduras, then told upon their return that they were ineligible for benefits that all other military members earn, including the Post 9/11 GI Bill. Their story started in 2012 when military leadership determined the need for new flexibility to mobilize National Guard and Reserve personnel involuntarily. Previous mobilization authorities, 10 U.S. Code § 12301 and 12302, full mobilization and partial mobilization, were mostly tied to war or national emergencies. This new tool, however, allows call-up of the reserve components for routine operations not necessarily related to an ongoing conflict.

Congress granted the President this new latitude in the form of 10 USC § 12304 and its two subsections. Section 12304a allows call up of Reservists for domestic emergencies at the request of a governor, and Section 12304b allows call up of both Guardsmen and Reservists for pre-planned operations in support of a combatant commander, typically overseas. This new measure, intentionally or unintentionally, denies Guardsmen and Reservists mobilized under its authority benefits due to those serving on active duty or other reserve component members mobilized under the previously existing authorities. Perhaps equally concerning, this measure alters the nature of the citizen soldier.

Benefits Denied

Current law provides a number of entitlements to reservists called away from their civilian lives under § 12301 and § 12302 or volunteering under § 12301(d). Benefits include accruing service time to become eligible for the post 9/11 GI Bill, pre- and post-deployment medical benefits to smooth the transition to and from civilian status, and reducing the age at which retirement pay can eventually be received.

These benefits are detailed in different sections of the U.S. Code and reference sections 12301, 12302, or 12301(d) directly. The benefit sections were not updated to point to § 12304b, so these veterans do not receive benefits. As a consequence, an active duty E-3 stationed at Camp Smith, Hawaii, is accruing time towards his Post 9/11 GI Bill eligibility. A Guard or Reserve E-3 who volunteers to augment at Camp Smith, Hawaii accrues time. But individuals or entire units mobilized involuntarily under § 12304b could be sent to Kosovo to support peacekeeping operations and be eligible for nothing. 

Some reporting on the issue indicates that denial of benefits under § 12304b is a cost saving measure, but the most likely explanation is simply that the original legislation was poorly written. The amendment to incorporate the measure into the 2012 National Defense Authorization Act (NDAA) passed by without debate and by unanimous consent. Even after passage, the services may not have fully comprehended the measure at all levels; initial guidance issued by the Marine Corps in 2014 indicated that § 12304 service was eligible for Post 9/11 GI Bill benefits, and was not corrected until December 2016.

An interim workaround does currently exist; per DoD guidance services have an option to allow members to "volunteer" for duty under Section 12301(d) in lieu of mobilization under Section 12304b. The Air Force has indicated that deploying members should receive this option, but the Marines who went to Honduras were apparently not, despite the fact that most were true volunteers.

In 2015, Senator Al Franken (D-Minn) introduced S. 2913, the National Guard 12304b Benefits Parity Act, in 2015. No action was ever taken on this measure; his office states that the senator will likely try again. Veterans groups will also try to keep the issue in the public eye. Susan Lukas, legislative director for the Reserve Officer's Association, indicates that fixing the statute will remain a legislative priority for 2017. The national commander of the American Legion, Charles E. Schmidt, is engaged, though § 12304b is not specifically mentioned in the organization's 2017 legislative priorities.

The quirk in the law that requires different treatment for Guard and Reserve members based on poorly publicized and ill understood guidance is wrong, but not the whole story. The true root cause is the desire to tap reserve component manpower continually.

Operational vs. Strategic Reserve

Should we use involuntary call-ups when there is no emergency? Traditionally, reserve components served as a strategic reserve, where troops use their weekend a month and two weeks a year to train, and are available in case of war. With very little public debate, however, the reserve components continue their transformation into an operational reserve. In this role, they serve as an adjunct manpower pool, summoned on a regular schedule for routine missions that regular components are no longer fully resourced to accomplish.

The years since 9/11 have seen widespread and recurring reserve mobilizations. Call-ups have generally been tied to operations in Southwest Asia and other locales, fighting the war once known as the Global War on Terror. With the exit from Iraq and the drawdown Afghanistan there is much less of a connection, but the habit of turning to the Guard and Reserve to fill shortfalls is now ingrained. Involuntary mobilization for humanitarian missions in Honduras is far beyond the traditional scope of the reserve components, and if not challenged this tool will continue to be used.

Several arguments support the new operational reserve construct. Reserve component leaders may favor the continued reliance because it helps the Guard and Reserve stay relevant, receive modern equipment, and have money to train. Disregarding the reserve component’s strategic role; if a unit is needed for a two Major Regional Conflict (MRC) scenario, then that alone is adequate justification to fund equipment, personnel, and training.  The regular forces might support operationalization because it reduces their operations tempo, giving their troops more time to train, recover, and perhaps see their families more often.

Using citizen soldiers in this way changes the nature of their relationship with the military, their families, and their employers. Becoming a part-time warrior to fight a once in a generation Desert Storm or to be called up after an attack like 9/11 is far different from joining with an expectation of mobilization every few years. Concern about absence is already one of the largest disincentives to join. Changing the bargain could change the nature of who joins. We may no longer get a wide cross-section of America, but a narrower range of personnel whose careers and families are fluid enough to support routine call-ups.

A better path is to size the active duty force to reasonably execute its requirements. The active force could still lessen deployments with large helpings of Guard and Reserve members; even relatively hazardous missions get volunteers. Guardsmen and Reservists are patriots who look forward to serving. Most of the Marines sent to Honduras would likely have volunteered, and the unit could have been rounded out from volunteers across the service. The key is opening opportunities across the entire force, allowing individuals to time and tailor their support to their individual circumstances.

At the very minimum, Congress should immediately repair section 12304b and make those already affected whole. Even better, Congress could repeal the measure, or at least debate the premise that involuntary mobilizations to support non-war operations are an appropriate solution.

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