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Understanding Legal Readiness for Reserve Sailors

16 October 2020

From Lt. Cmdr. Erin Baxter-Haynes, Deputy Force Judge Advocate , and Legalman 1st Class Kendra Clowney, Force Legalman

Imagine, while deployed in the Middle East, you receive an excited call from your daughter. She asks for permission to play soccer this year and says her coach is sure she’s going to be a star player. She seems to be bursting at the seams with enthusiasm; you reply “Absolutely, let’s get you signed up!”

Imagine, while deployed in the Middle East, you receive an excited call from your daughter. She asks for permission to play soccer this year and says her coach is sure she’s going to be a star player. She seems to be bursting at the seams with enthusiasm; you reply “Absolutely, let’s get you signed up!” 



Shortly after that conversation, you receive another call. Now in tears, your daughter says grandma couldn’t sign her up because she’s not a parent or guardian. There’s no way for you to get the needed documentation signed and returned before the deadline. Your daughter is crushed, and you are emotionally distracted from focusing on the mission, simply because you didn’t set up a power of attorney before deployment.

For many Reserve Sailors, legal readiness is not a high priority, but it truly is of utmost importance — primarily so Sailors can stay focused on the mission when deployed. Remaining focused aids in keeping everyone safe.  As legal service providers, we see first hand how many service members are distracted from their jobs when issues back home consume their thoughts.

Legal readiness for the Reserve force means Navy Reserve Sailors have assessed their current situation and the possible scenarios that may affect them and their loved ones in their absence, and executed the necessary legal documents in advance of deployment to plan for those scenarios. These situations include but are not limited to:

  • Support (allotments, direct deposits, bank account access, DEERS registration)
  • Family Care Plan (designated caregiver, health care permissions)
  • Wills (property distribution, legal guardian, trustee)
  • Life Insurance (life insurance proceeds do NOT need to pass through your will)
  • Leases / service contracts (breaking residential and vehicle leases, cell phone or other service contracts)
  • Credit Report

There are four main areas of focus every Sailor should be familiar with prior to deployment and to ensure legal readiness. Each is important in it’s own way, and to be ready for a deployment, every Reserve Sailor should understand the basics.

WILLS and POWERS OF ATTORNEY

In GTMO, we had a Sailor who needed to renew his vehicle tags. He had left his car at his apartment in Virginia, and it was going to be towed unless his girlfriend could renew the tags. The Sailor quickly worked with legal to expedite a power of attorney. However, by the time the paperwork arrived, the car had already been towed. As the power of attorney was only for registering the car, his girlfriend couldn’t get the vehicle out of the impound lot for nearly six weeks — and after incurring a tremendous impound fee. With proper planning and counsel, this Sailor could have easily avoided the lost money, frustration and wasted time.

Powers of attorney and wills are two common documents prepared for Sailors before they head out for deployment. It is important to understand when and why you may need one.

Frequently, leadership of a unit preparing for deployment will tell everyone in the unit to head over to the legal service office and get wills and powers of attorney drafted in order to be “legally ready”. What some do not understand is that many Sailors, especially younger Sailors, may not need a will and may or may not need any powers of attorney.

If a person were to pass away without a will, intestate succession — or the laws of the state — would apply. These are the actions that take place over your possessions in accordance with state law. For the most part, it follows the line of relationships. If you are not married and you have no children, everything you own will go to your parents. If you don’t have parents, everything will go to your siblings. If you are married, everything you own will go to your spouse. And if you have no spouse but you have children, everything will go to them.

All of this will just happen as a matter of law — no will required. On top of that, there are many items Sailors possess that can transfer outside of a will, or outside of probate. For instance, life insurance has a beneficiary form to name a person to receive payment at the time of death. At your bank, you can request a ‘payable upon death beneficiary form’ to transfer your account balance automatically. Even your Thrift Savings Plan account provides a beneficiary form. Anything that has one of these forms does not need to be listed in a will.

But how can you be certain whether or not you need a power of attorney or will? At a glance, you will probably need one if you have minor children, you and your spouse have children from prior relationships, or if you have real property. However, the way you can know for sure is to sit down with a legal assistance attorney and discuss your situation. For commanding officers that say “everybody needs a will and power of attorney,” the better language is, everybody needs to SEE if they need a will or power of attorney.

Meeting with a legal assistance attorney and going through what you have, how you want your property disposed of — if God forbid should something happen to you — how you want your children cared for, and if you want any trusts set up, will help you understand what types of estate documents you might need and if the Navy can help you set up those documents.

LINE OF DUTY

Another significant part of legal readiness is understanding the importance of proper accounting for when you are actually on duty in regards to injury and illness.

If you happen to become sick or injured while on duty, you need to make sure that proper documentation is added to your medical record or that it is recorded through a Line of Duty investigation if it is not documented in your military medical record. Proper documentation is critical to accessing care or treatment from the Veterans Administration in the future. It is very difficult to establish that some form of long term care or disability is earned based on an active duty event if it was not properly documented at the time it occurred.

A Line of Duty Inquiry is important for all service members, but for Reserve Sailors it is even more important. An active duty member who has any type of injury or illness is on duty 24 hours a day / 7 days a week – but a Reserve Sailor is on duty while subject to orders. Without proper documentation, Reserve Sailors could miss out on medical treatment, services, and future compensation.

USERRA

It is also important for Reserve Sailors to understand their rights and responsibilities regarding their civilian employment prior to mobilization.  Recently we had a Reserve Sailor who took on a multi-year set of orders. His civilian position at the Norfolk Shipyard was guaranteed under the Uniformed Services Employment and Reemployment Rights Act, or USERRA. However, after his orders ended, he didn’t immediately return to the shipyard. Instead, he drilled out the upcoming year’s IDT periods in one block of time and then took on another set of long term orders. In total, he was away from the shipyard for over six years.

At the end of his orders, he found out he couldn’t return to his old job. USERRA protected him for a period of time, and he was not aware of the specific periods and required timeframes and communications. Had this Sailor returned to work at the shipyard between the different set of orders, he would have reset his clock and likely been able to keep his job.

USERRA seeks to ensure that those who serve their country can retain their civilian employment and benefits and can seek employment free from discrimination because of their service.

There are four basic entitlements that Reserve Sailors called to active duty have under the law:

  • Prompt reinstatement to civilian employment — generally a matter of days, not weeks, but will depend on the length of absence.
  • Accrued seniority as if continuously employed — this applies to rights and benefits determined by seniority as well.
  • Training or retraining and other accommodations.
  • Special protection against discharge, except for cause.

For service of more than 30 days but less than 181, the service member must submit an application for reemployment within 14 days of release from service. For service of more than 180 days, an application for reemployment must be submitted within 90 days of release from service.

A key part of staying on good terms with your employer is communication. We strongly encourage sharing your drill schedule with your boss. Let them know as far in advance what your drill and training schedule looks like. If you are part of a unit or community who may need to mobilize rapidly — such as the recent medical response teams to the COVID-19 pandemic relief efforts — make sure your employer is aware of your circumstances. Communicating upfront will save a lot of heartache later on.

SCRA

The Servicemembers Civil Relief Act provides a tremendous amount of protections to servicemembers.  Specific to Reservists and legal readiness, a SCRA focus is the financial protections for service members who mobilize or are called to duty. It could be a matter of a leased vehicle, cell phone contract, membership at a local gym or cable and internet services — under SCRA, Sailors are able to break some contracts due to an upcoming mobilization or possibly reduce interest rates on existing debts.

If, for instance, you take orders to Meridian, Mississippi, your cell phone contract can likely follow you, as you will most likely have service available there, and you may not be able to terminate that contract.  You will likely be able to terminate your apartment lease early without a penalty, though.  However, if you’re going to Iraq, you probably could terminate your apartment lease and break or put on hold the cell phone contract because service is unavailable.

Bottom line, any orders outside a service area for a given contract or service is an area you may be able to save money while called to duty.  This is an area to chat early with a legal assistant attorney as advance notice of cancellations are required in order to save you the most money. 

HOW TO STAY LEGAL READY

Typically a Reserve Sailor is not eligible for legal services unless they are on orders or preparing for a mobilization. If you know about an upcoming deployment or are planning to volunteer for one in the future, talk with your unit leadership and with NOSC staff. Find out when you can meet with a legal services representative.

Each Navy Reserve Activity should have a mobilization readiness program. Whether that is a Deployment Readiness Training weekend or individual unit readiness, look for available times to take care of your legal readiness.

Pre-deployment services are given priority. Engaging with a legal assistance attorney to determine your specific legal needs before deployment can avoid unforeseen hassles and challenges before they happen. Coordinate in advance of your needs so there is not a rush when time is short and focus needs to be elsewhere.

Every Reserve Sailor is encouraged to be ready, in all facets, for short notice deployments. As time and service availability is finite, planning and communication with family and leadership will ensure a ready to fight Reserve force.  Our goal is to help you be legally ready; the better prepared each Sailor is, the more focus is mission and safety.

For more information contact your local legal representative, mobilization officer or visit https://www.jag.navy.mil/legal_services/legal_services_locator_rlso.htm


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