|Soldiers & Sailors Civil Relief Act (SSCRA)|
|Chapter 2, General Provisions|
Purpose and Scope
The purpose of this chapter is to define and identify the class of persons protected by the Act. Additionally, it deals with how and when this protected status attaches, the effect of this status, and, ultimately, how and when it can be modified or terminated.
(50 U.S.C. App. § 511)
The term "person in the military service", the term "persons in military service", and the term "persons in the military service of the United States", as used in this Act, shall include the following persons and no others: All members of the Army of the United States, the United States Navy, the Marine Corps, the Air Force, the Coast Guard, and all officers of the Public Health Service detailed by proper authority for duty either with the Army or the Navy. The term "military service", as used in this Act, shall signify Federal service on active duty with any branch of service heretofore referred to or mentioned as well as training or education under the supervision of the United States preliminary to induction into the military service. The terms "active service" or "active duty" shall include the period during which a person in military service is absent from duty on account of sickness, wounds, leave, or other lawful cause.
The term "period of military service," as used in this Act, means, in the case of any person, the period beginning on the date on which the person enters active service and ending on the date of the person's release from active service or death while in active service, but in no case later than the date when this Act ceases to be in force.
The term "person", when used in this Act with reference to the holder of any right alleged to exist against a person in military service or against a person secondarily liable under such right, shall include individuals, partnerships, corporations, and any other forms of business association.
The term "court", as used in this Act, shall include any court of competent jurisdiction of the United States or of any State, whether or not a court of record.
Members of the military establishment. The threshold question confronting courts in cases involving the Soldiers' and Sailors' Civil Relief Act is the status of the party seeking the benefits of the Act. The court must determine whether the party is a "person in the military service" of the United States as defined by the first sentence of section 101(1), the dependent of such a person, a person primarily or secondarily liable on an obligation with such a person, or a person to whom the Act's coverage is specifically extended in particular situations.
In defining those who are "persons in the military service of the United States," the first sentence of section 101(1) unequivocally states that only members of the organizations listed "and no others" are such persons. Congress intended that all members of the military establishment be covered by the Act The definitions contained in other Federal statutes, particularly those in Title 10, United States Code, help determine which members of the military are covered by the Act.
Despite the language of section 101(1), which includes only those officers detailed to the Army and Navy, the benefits of the Soldiers' and Sailors' Civil Relief Act were extended to a lieutenant commander in the United States Public Health Service, assigned for duty with the Coast Guard and Public Health Service officers terminating a pre-service lease agreement and contesting a child custody matter.
Note: Since April 22, 1976, the Public Health
Service (PHS) has been covered by the Soldiers' and Sailors' Civil
Relief Act. They no longer need to be detailed to the Army or Navy.
Note: Since April 22, 1976, the Public Health Service (PHS) has been covered by the Soldiers' and Sailors' Civil Relief Act. They no longer need to be detailed to the Army or Navy.
Persons not members of the military establishment. Several categories of persons related to the military have been found to be outside the ambit of "persons in the military service of the United States." For example, a merchant seaman accompanying the Army and subject to Courts-Martial jurisdiction is not entitled to the benefits of the Act. Similarly, civilian employees of the armed services, contract surgeons and employees of government contractors have been held to be persons not in the military service of the United States.
Although the Act primarily benefits persons in the military service, it can, however, include civilians. These include guarantors or accommodation makers, those joined in law suits as co-defendants, and those who hold a dependent relationship to service members.
Active Federal service [Reserve Component Military Members]. In addition to being a member of the military establishment, a person seeking the benefits of the Act must also, pursuant to the second sentence of section 101(1), be either (1) on active duty or (2) engaged in "training or education under the supervision of the United States preliminary to induction into the military service."
The terms "active duty and "active service" are synonymous, as evidenced by a comparison of the relevant code sections for "active service" and "active duty." In the latter case, "active duty" means full-time duty in the active military service of the United States. It includes duty on the active list, full-time training in the active military service, and training at a school designated as a service school by law or by the Secretary of the military department concerned.
As a result of the unambiguous language, courts have held that this does not include retired personnel not on active duty, or those in the Reserve Component while not on active duty. Are reservists performing annual 2-week training covered by the SSCRA? Yes. The Illinois Court of Appeals raised the SSCRA as a basis to reopen a default divorce case judgment where the trial court, aware that the defendant was on his annual Reserve training duty, held a hearing despite the defendants absence. Also, the First Circuit suggested that the SSCRA statute of limitations tolling provision may apply for Reserve drill weekends and 2-week annual training periods.
National Guard members when serving on state active duty (non-federal)
status? National Guard
personnel not serving in a federalized status, such as state active
duty for disaster relief under Title 32, United States Code, or
Full Time National Guard Duty (FTNGD) as defined at Title 10, U.S.
Section 101(d) (5), are not protected by the SSCRA. For instance, the SSCRA does not protect
National Guard members performing FTNG, despite Title 10, U.S.
Code Section 12602 stating that such service is deemed to be active
in the Federal service as a Reserve of the Army for purposes of
benefits. Why? Because the military has determined that
SSCRA coverage is a not a benefit for National Guard members, but
legal protection. National Guard members performing state
active duty must look to state statutes that parallel the SSCRA
for relief. (NOTE: In November 2002, Congress
passed a law (the Veterans Benefits Act of 2002, Public Law 107-330.
Section 305), which provides SSCRA protection to National Guard
to state active duty under Title 32, if the duty is because of
a federal emergency, the request for active duty is made by the
President or Secretary of Defense, and the member is activated
for longer than 30 days. An example of
who were activated by the states, at the request of the Presiden,
to provide security for airports after 9-11).
(NOTE: In November 2002, Congress passed a law (the Veterans Benefits Act of 2002, Public Law 107-330. Section 305), which provides SSCRA protection to National Guard members called to state active duty under Title 32, if the duty is because of a federal emergency, the request for active duty is made by the President or Secretary of Defense, and the member is activated for longer than 30 days. An example of this would be the National Guard members who were activated by the states, at the request of the Presiden, to provide security for airports after 9-11).
Preliminary training. Periods of training or education preliminary to induction, if performed under the complete supervision of the United States, are treated as "full-time duty." The persons undergoing the training or education need not actually have already acquired a military status. This language appears to have been designed to cover World War II situations, such as officer candidates who were not yet members of the military establishment, but who were undergoing training and education to prepare them for military status.
Divestment of rights. Section 101(1) provides that "the terms 'active service' or 'active duty' shall include the period during which a person in military service is absent from duty on account of sickness, wounds, leave or other lawful cause." This raises the issue of the qualitative nature of an otherwise qualified person's military service. In the case of confinement, an Ohio court held that a soldier sentenced by a general Court-Martial to five years imprisonment, total forfeiture of pay and allowances, and a dishonorable discharge at the termination of the sentence was not on active duty or service and, hence, was not entitled to the benefits of the Act.
In dictum, the court stated:
I do not mean to infer that commitment for any violation of the Army's rules and regulations would divest the soldier of his rights under the Soldiers' and Sailors' Relief Act, but the gravity of the offense charged and the sentence of the Court-Martial are factors which must be considered in determining this question.
This reasoning was apparently applied in an AWOL case when a court held that a soldier, who extended his leave 16 days without permission to attend the birth of his first child, was entitled to the benefits of the Act. Another court, however, concluded that a sailor forfeited his protection under the Act when he was AWOL during his divorce trial. In that case, the sailor had been properly served, but subsequently went AWOL and did not appear at the proceedings. In another case, a soldier who was AWOL at the commencement of a divorce action, could not later reopen the default judgment by asserting the SSCRA while incarcerated in a county jail. The soldiers continuing AWOL status divested him of SSCRA protection.
In addition, service personnel may not be able to claim protection under the act if the true cause of their inability to act is misconduct such as a self-inflicted injury.
Period of time that the Act covers. Subsection 101(2) [50 U.S.C. App. § 511] provides that protection of the Act begins on the date on which the person enters active service and additionally provides "it shall end on the date of the person's release from active service or death while in active service, but in no case later than the date when this Act ceases to be in force."
Other sections of the Act, however, qualify this "period of military service." For example, sections 200 and 201 provide additional periods ranging from 30 to 90 days after the termination of all military service to assert rights protected by the Act. On the opposite end of the spectrum, section 106 back-dates the coverage of Articles I, II, and III of the Act to persons who receive orders to report for induction and to Reservists from the date they receive orders to report for active duty.
It is important
to know exactly when the particular protection ends. In a 1995 case, a former soldier waited
2 years and 1 day after discharge to file a tort action. The applicable statute of limitations
was 2 years. The court
dismissed the suit holding that the SSCRA provision tolling statutes
of limitation expired on the last day of active duty, not the following
day (the first day of civilian status).
Above Information Courtesy of United States Army JAG Corps