By Aniela Szymanski and Cory Titus
Last summer, we covered the latest on duty status reform for National Guard and Reserve personnel and why DoD and Congress should make much-needed changes. It is not clear what duty status reform will entail because DoD has not revealed the full plan publicly; numerous requests for details have gone unanswered by DoD in recent years.
While the specifics aren’t public, there are principles policymakers should follow and changes they should make when crafting these reforms to support reserve component servicemembers.
In the FY 2018 National Defense Authorization Act (NDAA), Congress directed DoD to reduce to four the number of statutory authorities for reserve duties: One for contingency or other combatant command operations, a second for any active service other than contingency or combatant command support (such as training or operational support), a third for non-active service, and a fourth for correspondence courses and telework.
While Congress left it to DoD to decide what benefits applied to each category, it did state the benefits should be “commensurate with the nature and performance of the member’s duties.”
A Reserve Forces Policy Board (RFPB) letter to the next administration sent in September 2020 recommended a near-term priority be the enactment of duty status reform. The letter highlights the need for reforms and showcases how duty status reform is long overdue. MOAA agrees and has shared this as a priority for the reserve component during talks with the Biden-Harris Transition Team.
[RELATED: More Guard and Reserve Resources From MOAA]
We offer these three guiding principles for policymakers, in addition to fixing issues highlighted earlier, as policy changes are considered and implemented.
- Make it easier to serve in the National Guard and Reserve. Confusing order types lead to misunderstandings about pay, health care coverage, and earned benefits.
- A day of federal service is a day of federal service. Servicemembers doing the same job in the same place should not earn different pay and benefits.
- Health care is a necessity for readiness. Guard and Reserve members should be eligible for affordable TRICARE options, including during the “gray area” years between retiring from service and being old enough to collect retirement pay.
With these principles in mind, policymakers should address several key issues of confusion or unfairness (or both) faced by these servicemembers, to include:
Basic Allowance for Housing
When reservists are called to active duty for 30 days or less, they are not entitled to Basic Allowance for Housing (BAH) based on where they live. Instead, they receive BAH Reserve Component/Transient (BAH RC/T) that may be far lower than what they otherwise would receive for more than 30 days. For example, an E-5 without dependents living in Las Vegas would receive $1,419 in BAH if the servicemember was on orders for 31 days, but only about $750 if the member was on orders for 30 days. One more day on orders and a servicemember would receive an additional $670.
Having two BAH rates hurts servicemembers called to support our nation. Whether a reservist is on orders for 30 or 31 days, he or she still must maintain a household and have a home to return to when their orders end.
Further, this distinction creates an incentive for DoD to manipulate the length of orders to save money and shortchange servicemembers by putting them on consecutive sets of 30-day orders. At the beginning of the COVID-19 pandemic, Guard members were placed on 30-day orders even though it was obvious the pandemic support mission would take much longer. This is unfair to servicemembers and should be changed – base BAH on the servicemember’s home of record and prorate it to the number of days the member serves on active duty.
Servicemembers must perform 36 cumulative months on active duty to qualify for full Post-9/11 GI Bill eligibility. To receive minimal eligibility at the 50% rate, they must serve at least 90 days on active duty. Each day of service on active duty should be credited equally toward this eligibility.
Instead, many variables affect whether Guard service counts toward the Post-9/11 GI Bill. Even though Guard members may be supporting a national emergency mission, their orders may be issued under a variety of statutory sections and for relatively short durations that are repeatedly renewed, causing confusion and frustration in determining benefits eligibility.
Recently, National Guard members ordered to protect the U.S. southern border fell into this loophole. It took a December 2019 declaration by then-Secretary of Defense Mark Esper to finally resolve that those Guard members would, in fact, accrue eligibility toward the Post-9/11 GI Bill for those missions.
At the beginning of the COVID-19 pandemic, Guard members were placed on 89-day orders, one day short of giving them the minimum service time needed to qualify for even the lowest level of Post-9/11 GI Bill benefits. During the 2021 presidential inauguration, tens of thousands of National Guard troops were brought to Washington, D.C., to protect the U.S. Capitol; the time they served there should count toward Post-9/11 GI Bill eligibility, but that may not be the case for all National Guard members. The confusion is so concerning that members of Congress have written letters to DoD seeking answers to these questions.
Duty status reform should eliminate such inequity and confusion. It is essential that the hard-fought gains in Post-9/11 GI Bill eligibility are not erased and that National Guard members are not continually forced to do a detailed analysis of the legal authorities and petition Congress for their benefits.
In the end, it should matter what mission you are supporting, not what statutory section your orders happen to fall under. The legislation must make clear that Guard and Reserve members are accruing eligibility for education benefits when they are supporting a federal mission.
Access to health coverage is a constant challenge, and duty status discrepancies only add to the confusion for Guard and Reserve members. Order type dictates when reserve component servicemembers and their families are eligible for TRICARE benefits and whether they receive health care coverage as they transition off of active duty.
Guard and Reserve members do not become eligible for premium-free TRICARE benefits (like active duty servicemembers) unless their orders are for 31 or more days. As explained above, at the beginning of both the border mission and the COVID-19 support mission, Guard members were placed on 30-day orders, leaving them and their families without TRICARE coverage.
A servicemember returning home often requires health care coverage while transitioning back to the civilian workforce. But Transition Assistance Management Program (TAMP) benefits, including 180 days of premium-free TRICARE, are limited to certain order types. This is particularly a concern for the National Guard. While the FY 2021 NDAA addressed this for servicemembers responding to the pandemic, the update does not apply to all missions.
[RELATED: MOAA's 2020-21 TRICARE Guide]
The prevailing view among Guard and Reserve members is that if they are on active duty for any amount of time, they should receive the same benefits as their active duty counterparts – including TRICARE coverage for them and their families.
Shell Games With Orders
Guard and Reserve members must accumulate 90 days of active duty in a fiscal year to have eligible time toward achieving a reduced retirement age. Cutting orders off at 89 days, as occurred at the beginning of the COVID-19 support mission, circumvents this eligibility unless the servicemember somehow does a second period of active duty within the fiscal year. It’s another way those in uniform can be shortchanged.
Whatever duty status reform ends up looking like, Congress should ensure DoD is not incentivized to cut orders short at 30 days to avoid the perceived additional expense of added benefits for those who serve beyond that mark. The most effective way to end this incentive is to provide the same benefits regardless of the number of days a Guard or Reserve member is on orders.
The reserve component response to social unrest and natural disasters, as well as its continued support for COVID-19 testing, treatment, and vaccination efforts, have shown how vital its members are to our nation. Now is the time to reform the duty statuses to help servicemembers get the pay and benefits they deserve. While some may believe that these changes are superfluous because the current operational tempo tends to ensure a majority of Guard and Reserve members meet or exceed the needed days to earn things like Post-9/11 GI Bill eligibility and reduced retirement age, there likely will be a return to a lower operational tempo, leading to a return to very harmful inequities between the components.
As DoD works through implementing Congress’ mandate to carry out duty status reform, both DoD and Congress must ensure that past errors are addressed. Following the principles outlined in this article and addressing these issues will ensure servicemembers and families see benefits from these changes.
Aniela Szymanski is the Senior Director of Legal Affairs and Military Policy at Veterans Education Success. She is a MOAA Life Member, a board member of the MOAA Southern Nevada Chapter, and a Lieutenant Colonel in the U.S. Marine Corps Reserve. Cory Titus separated from the Army in 2017 as a captain and is MOAA's director of veteran benefits and guard/reserve affairs.