By | March 5, 2020

BY KATHLEEN GILBERD

The 2020 National Defense Authorization Act (NDAA)[1], which was signed into law on December 20, 2019, contains a large number of provisions affecting military personnel and veterans. This article describes some of the provisions for military personnel and families, sexual assault policy provisions, and changes in discharge review procedures.

PERSONNEL PROVISIONS

These provisions contain an emphasis on mental health with a particular focus on suicide within the military.

Under section 548, the services will be required to provide counsel to victims of domestic violence who are otherwise eligible for military legal assistance. Unfortunately, the section does not include real detail on the areas of assistance to be available from these counsel. The program must be in place by December 1, 2020.

Section 565 requires gender integration of training units at Marine Corps Recruit Depots. This must be accomplished within five years at MCRD Parris Island, and eight years at MCRD San Diego. Some efforts at integration are already underway in the Marine Corps.

Under section 566, the Department of Defense (DoD) Inspector General will be required to conduct an assessment of the deaths of recruits at all military recruit training bases, as well as the

effectiveness of medical protocols at those bases. The IG is to report back to Congress by September 30, 2020, on the numbers and causes of deaths amount recruits, the standards used to evaluate recruit injuries or illnesses, the nature of medical assistance provided, how supervisors determine whether ill recruits should continue training, and similar issues and whether medical malpractice was the cause of any deaths. Depending on the results of the report, and Congressional or DoD action after it, this may shed light on abuse of recruits leading to physical stress-related deaths, and provide remedies for recruits whose drill instructors refuse to let them seek medical help.

Section 570A provides standards for discharge of servicemembers who suffer from mental illness as the result of sexual assault, intimate partner violence or spousal abuse. Where such illness does not render the members unfit for duty and so subject to medical discharge or retirement, but rather for administrative discharge, the medical condition must be corroborated by a mental health care professional with equal or higher credentials than the therapist making the initial diagnosis. The diagnosis must also be endorsed by the service surgeon general. Where the condition is still found not to be unfitting, separation will be for condition not a disability or under Secretarial authority. The provision is to take effect 180 days after enactment of the NDAA and apply to separations occurring on or after that date.

Section 572 amends 10 USC 701 to allow for deferral of deployment for military members after giving birth, for up to twelve months after the birth. Deployment during that period will be allowed only with the approval of a military health care provider, and with consent of the member or a determination by the Secretary of Defense that the deployment is “in the interest of national security.” Separately, the Marine Corps is also considering twelve-month leaves of absence for troops who give birth.

Under Section 593, the Defense Department must add to add to its surveys of members and employees questions about whether they have witnessed, experienced or reported extremist activities in the workplace. While the section gives no real definition of extremist activities, the provision likely results from recent exposes of white nationalist activities in the military.

“Food insecurity” among military personnel and their families is addressed in Section 656, which requires that DoD report to Congress by May 1, 2020, on this issue. The report will include the numbers of personnel receiving food assistance, using school lunch programs, or obtaining food through food banks and the like, as well as barriers to use of such programs. It will also give an assessment of the Family Supplemental Subsistence Allowance for overseas personnel and the Supplemental Nutrition Assistance Program, the feasibility of a basic allowance for low-income personnel, and other recommendations to reduce food insecurity.

Section 717 requires DoD to establish a “comprehensive policy” for mental health treatment of military personnel within 180 days of enactment of the NDAA. The policy is to cover health care providers’ compliance with clinical practice guidelines for suicide prevention and medication-assisted treatment for alcohol and opioid use disorders. It will also provide for mental health treatment of survivors of sexual assault and domestic violence, and for civilian mental health professionals’ referrals of servicemembers to military treatment facilities when needed for diagnosed mental disorders with a risk of suicide or for opioid use disorders. In addition, the policy is to provide comprehensive mental health services for reservists, taking into account their deployments and the frequent difficulties of obtaining care on return to civilian communities. DoD is to report to Congress on implementation of this policy within 18 months after enactment of the NDAA.

Section 722 addresses the common problem of long waits for evaluations or treatment by mental health providers. Under this section, if treatment cannot be scheduled with a military provider within 15 days of a member’s request, he or she must be referred to a civilian TRICARE mental health provider for assistance.

Section 733 makes provisions for financial claims for medical malpractice, discussed in the following article in this issue of On Watch, “New Policy Allowing Military Medical Malpractice Claims.”

The issue of suicide is addressed in section 741, which requires a report to Congress within 90 days of enactment, followed by annual reports, on the numbers of suicides and attempted suicides in the services, including the reserves. The reports will look particularly at suicides and attempts occurring during the first 180 days of service and during deployments. They will also include the numbers of suicides of military dependents. DoD will be required to examine the “research agenda” options for suicide prevention, treatment, and “risk communication,” as well as research collaboration with the VA or other government agencies. In addition, the reports are to examine the possibility of increasing the role of chaplains and other religious resources in suicide prevention for religious

servicemembers. Within 240 days of enactment, the Government Accountability Office is to prepare

a report for Congress on the problem of suicide in the military and efforts to counter it, along with recommendations to improve these efforts.

Under section 739, the National Guard Bureau “may” initiate a three-year pilot program to address suicide prevention and intervention in the Guard. The program would use a mobile application allowing Guard members to access support, including support from a mental health provider, on a smartphone or other devices. Prior to initiating the program, the Chief of the Bureau is to assess existing state suicide prevention programs using mobile apps, and consider the feasibility of expanding these programs on a national scale.

Section 515  of the NDAA continues current DoD policies and programs addressing suicidality and suicide prevention in the reserve forces, extending existing provisions required under 10 USC 10219 for assessing suicidality and “resiliency” from 2020 to 2025, and requiring periodic review of the programs.

Section 747 calls for a GAO report on the quality of medical health care and “impact of medical malpractice actions.” The report will include, among other things, an assessment of quality assurance in the recruitment and hiring of military and civilian health care providers, and methods for keeping track of adverse privileging and credentialing information regarding their performance. In addition, it will include an evaluation of outcomes for those who bring malpractice claims and those who do not, and the outcomes and settlements of malpractice claims.

Section 750 calls for a DoD study on efforts to treat traumatic brain injuries, including the process for receiving treatment, treatment outcomes, cost, patient and command satisfaction with treatment, and structured methods to document these issues. A report to Congress is required within 270 days on the results of the study.

SEXUAL ASSAULT PROVISIONS

These provisions are included as Congress continues to try to address the massive problem of sexual assault in the military.

Under Section 538, the services will be required to provide survivors of sexual assault with notification of all “significant events” regarding the investigation, prosecution and confinement of assaulters, some of which are already required under DoD policy. Where either court-martial or civilian prosecution is possible for sexual assaults, the military must make a record of the survivors’ preference for the forum. Regulations to implement these provisions must be published within 180 days of enactment of the NDAA.

Section 541 expands the role of Special Victims Counsel (SVC) JAGs assigned to assist survivors of sexual assault) to include assistance and representation when retaliation occurs. Assistance is to include filing of complaints against retaliation and representation in any resulting military justice proceedings. While some Special Victims Counsel already provide this assistance, the section requires it uniformly across the services. In addition, within four years of enactment of the NDAA, the services must ensure sufficient numbers of SVC such that each SVC will not be required to handle more than an average of 25 cases at a time.

Under section 542, Special Victims Counsel should be made available to sexual assault survivors who request it within 72 hours, even if there is no SVC available at the survivors’ installations; where that is not possible, the Secretary concerned shall ensure that SVC is made available as soon as practicable.

Section 549 will require that survivors of sexual assault be notified of decisions to take or not take administrative action against alleged assaulters where commands have decided not to pursue courtmartial charges. Among other things, this will ensure that survivors are aware of administrative discharge proceedings.

Section 599 will require DoD to provide servicemembers with information about sexual trauma services available from the VA as part of mandatory training materials, and will require Sexual Assault Response Coordinators and Victims Advocates to provide information about eligibility for such VA services to survivors of sexual assaults.

(Other provisions on sexual assault are included in the NDAA’s military justice sections, to be discussed in the next On Watch.)

DISCHARGE REVIEW PROVISIONS

These provisions try to address the continuing problem of the military wrongfully discharging large numbers of servicemembers and the resulting backlog of cases challenging these discharges.

Section 521 of the NDAA makes changes to 10 USC 1552 and 1553, covering the Boards for Correction of Military/Naval Records and Discharge Review Boards, respectively. For the BCM/NRs, cases asserting post-traumatic stress disorder, traumatic brain injury or other trauma as a result of combat or sexual assault will require the Boards to consult a psychiatrist, psychologist or social worker experienced in these disorders; cases involving sexual assault, intimate partner violence or spousal abuse will require consultation with experts experienced in related trauma. For the DRBs, the provision requires consultation with a psychiatrist, psychologist or social worker trained in mental health issues related to PTSD or TBI when applicants assert that PTSD or TBI result in whole or part from sexual assault, intimate partner violence or spousal abuse.

Section 522 reduces the number of Discharge Review Board members considering each case from five to a minimum of three, with a change to 10 USC 1553 (d)(1). Presumably, this will allow the DRBs to handle more cases, reducing the significant wait time for decisions.

Section 523 adds a new section to 10 USC, 1553a, with a procedure for final review of DRB and BCMR findings and decisions by the office of the Secretary of Defense when petitioners request this in upgrade cases (cases involving changes in reason for discharge or other corrections are not mentioned). The Secretary may then recommend upgrades to the appropriate Service Secretary. This new procedure must be implemented by January 1 of 2021—interestingly, the section does not make the Secretary of Defense’s decision binding on the services.

Section 524 requires the services to report to the House and Senate Committees on the Armed Services, within 180 days of enactment of the NDAA, on the current backlog of discharge review cases, the level of personnel needed to address the backlog, and the services’ plans to “modernize the application and review system.” This section also extends an existing prohibition on reduction of personnel assigned to the various service review agencies.

Section 525 expands training for the review boards, mandated by the 2017 NDAA, to include sexual trauma, intimate partner violence, spousal abuse, and the varying responses of individuals to trauma. Uniformity of training among the services will be required.

Under section 527, upgrades of less than honorable discharges for veterans separated because of their sexual orientation are mandated, with issuance of new DD-214s that note the upgrade and do not mention sexual orientation or the original reason for discharge. This codifies current practices of the DRBs and BCMRs. It does not include specific standards for those discharged for alleged “misconduct” based on sexual orientation (under Don’t Ask, Don’t Tell and prior policies, sexual acts, including even affectionate touching or kissing, could be treated as misconduct warranting an Other than Honorable discharge).

OTHER PROVISIONS

Under section 333, DoD is required to submit a plan to phase out burn pits to Congress within one year of enactment of the NDAA. Section 334 will require DoD to release to the Congressional committees on VA Affairs the locations of burn pits, which will assist veterans in making claims for illnesses caused by the pits. Section 704 will include effects of burn pit exposure to periodic health care examinations and some other medical examinations.

Sections 341-345, titled the Prompt and Fast Action to Stop Damages Act of 2019, require DoD to provide bases affected by contaminated water with uncontaminated water, and to develop a plan within 180 days for cleanup of water sources containing  perfluoroalkyl and polyfluoroalkyl.

A Sense of Congress resolution in section 540N notes that the American people should “recognize the role of racial bias during the era in which the prosecution and convictions of the Port Chicago 50 took place.” (The 50 and other African-American sailors were court-martialed for refusing to return to work under dangerous conditions following a massive munitions explosion at Port Chicago, which the section terms the deadliest home-front disaster in World War II.) In light of this racism, the section advises that the Secretary of the Navy should recommend executive action to change the discharges of the 49 remaining sailors who received general courts-martial for their refusal, and the 207 remaining sailors with summary court-martial convictions.

CONCLUSION

These are just some of the important provisions of the NDAA – a piece of legislation which tries to address some of the myriad of problems which beset the massive institution which is the United States military.  Military justice changes and a few sections covering immigration issues will be discussed in the June issue of On Watch.  As always, it remains to be seen if these provisions will actually be implemented and, if so, how effective this implementation will be.


[1] The Act can be found at <https://congress.gov/bill/116thcongress/senatebill/1790/text#tocH081ECE65A035452A9058E4A72CE4D800>.