| 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. Definitions Section 101 (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. 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 defendant’s 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. 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
soldier’s 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). Next page > Jurisdiction > Page 1, 2, 3, 4, 5 Above Information Courtesy of United States Army JAG Corps
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