The Servicemembers Civil Relief Act (SCRA) provides many powerful legal rights to servicemembers and their families that are not available to any other group. These protections typically apply to military personnel on active duty service. There are a few protections that run beyond active duty. Furthermore, this section looks at situations during a veteran’s active duty service for which SCRA rights were not observed that he or she (or a caregiver with a power of attorney) still might address through legal action. This section provides a thorough review of the SCRA, including when it applies, what rights it provides, and how it might come into play in certain circumstances.
What is the SCRA?
The purpose of the SCRA is to ensure servicemembers can focus on accomplishing their mission. They can do that best when they know their families are not being evicted from their homes, their property is not being repossessed, their stored goods cannot be sold, and court judgments will not be entered against them, unless a judge determines those actions are in compliance with SCRA safeguards.
Does the SCRA always apply to servicemembers?
Under the act, servicemembers must be able to prove their ability to fulfill legal responsibilities (for example, paying a mortgage) has been materially affected by their military service.
When it comes to protections concerning financial matters under the SCRA, this sometimes means the servicemember and his or her family has less overall income after entering military service than he or she did in civilian life — either before enlisting or being called to active duty. Material effect can include greater expense associated with maintaining multiple households as well as earning less income. However, this does not mean you must be affected financially for the SCRA to apply. When judges decide whether the SCRA applies, they look at the entire impact of military duty, and when there is a material effect from that duty, they should rule in favor of applying the SCRA protections.
Making a case of material effect in any situation involving the SCRA involves interpreting the law. You strongly are encouraged to meet with a military legal assistance attorney to discuss whether the SCRA applies to you. To locate a military legal assistance attorney who can help you or other free and low-cost legal programs in your area, refer to the American Bar Association’s Directory of Programs.
Who does the SCRA protect?
The SCRA protects:
Are wounded veterans and their spouses covered by the SCRA?
The SCRA provides coverage until the date the servicemember is released from military service or dies while in military service, otherwise known as REFRAD. Leave time is considered within active duty service. If your veteran consumed accrued leave time prior to REFRAD, the date of release from duty would follow the use of leave time.
There are a few exceptions to this rule.
Other than these limited exceptions, there is no extension of the SCRA for veterans (and their dependents) who have been released from military service, regardless of injuries sustained. The act is intended primarily to protect those who are currently serving.
For reservists, what counts as active duty?
A reservist’s two-week annual training will count as active duty under the SCRA, but weekend drill or inactive duty for training will not.
Does the SCRA apply only to mandatory service?
SCRA applies to all servicemembers on active duty to include voluntary and involuntary.
Are there limits to when the SCRA applies to a servicemember?
Although many protections for servicemembers are available under the act, some instances require the servicemember to assert his or her ability to fulfill a legal responsibility (for example, paying a mortgage) has been materially affected by military service before SCRA protections are available.
Must my servicemember be in a combat zone for the SCRA to apply?
The SCRA applies regardless of duty location.
When do SCRA’s protections kick in for reservists and guardmembers?
The SCRA protections apply from the date a servicemember receives the mobilization order calling him or her to active duty. There is typically a period between receipt of the mobilization order and the order’s report date to allow mobilized servicemembers to get their affairs in order. Even though a servicemember might not be in a paid status or have reported for duty, SCRA protections apply during this period.
We signed a lease before my spouse got called up for active duty. Will the SCRA still provide some protections?
Once on active duty, any pre-service obligation is subject to the protections of the SCRA. Your creditor (e.g., your landlord or auto dealership) or your lease agreement might say differently, but creditors are often unfamiliar with these matters, particularly if they are not located in a community with a military presence. Your SCRA protections cannot be contracted away or waived except in certain circumstances. Meet with a military legal assistance attorney to find out whether the SCRA applies to your situation and whether your state might have similar protections, such as for residential lease agreements.
While my servicemember is on active duty, our landlord asked us to waive SCRA rights. Should we?
You are entitled to waive your SCRA rights under certain circumstances. Your waiver must be in writing and meet certain requirements as to form. Before signing a waiver of your SCRA rights, consult a military legal assistance attorney or private attorney for advice. See Working With a Lawyer for more information on how to get an appointment for free legal help from a legal assistance attorney who can advise you fully on your rights.
Does the SCRA apply to criminal cases?
The SCRA does not apply to criminal cases, only civil cases. Civil cases are those in which one individual or business sues another to protect, enforce, or address private or civil rights. Examples of civil cases, which also commonly involve the SCRA, include suits dealing with creditors, landlord-tenant disputes, and family legal situations, such as divorce, child-custody, and support proceedings. The SCRA also applies to federal civil proceedings, such as bankruptcy.
My spouse is a contractor deployed in Iraq. Does the SCRA protect us?
Citizens who are working as contractors are not protected by the SCRA.
While deployed to Afghanistan, my spouse gave his or her mother, who lives in another state, a power of attorney. Can my mother-in-law assert SCRA rights on my servicemember’s behalf?
Anyone to whom your servicemember gave a power of attorney can demand any and all protections available under the SCRA on the servicemember’s behalf. Also, if you have hired a lawyer to represent you in a civil matter, he or she can assert your servicemember’s SCRA rights in his or her absence. Under the SCRA, the court is required to appoint someone to represent your servicemember’s interests while on active duty if no one else is available to represent his or her interests. See our information on powers of attorney for more details on how these work.