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NATIONAL GUARD MEMBERS CALL ON CONGRESS TO STOP INTERFERENCE WITH JUST COMPENSATION

Jun 14, 2006

For Immediate Release
Contact: Bob Brandon 202-331-1550
Helen Michael 202-383-7156

National Guard Members Call on Congress to Stop Interference with Just Compensation - Language Slipped into Authorization Bill Would Undo Court of Appeals Decision; Retroactively Deny Compensation to Citizen Soldiers

WASHINGTON – National Guard members called on Congress today to abandon legislation designed to retroactively take away their statutory right to military pay for completing required military training.

In 2000, a group of Guard members initiated a lawsuit seeking compensation for time related to correspondence courses the Department of Defense required the soldiers and airmen to take and for which the government refuses to pay despite a clear statutory mandate. In 2003, the Federal Court of Appeals unanimously ruled that National Guard members had a right to compensation for the completion of required correspondence coursework. That same year, 19 members of the Senate National Guard Caucus wrote to Attorney General Ashcroft, urging the Department of Justice to act promptly to implement what they described as “the Federal Circuit’s definitive ruling that there is an obligation to pay National Guard members for correspondence course-work taken as part of their military training.”

Instead of complying with this unequivocal ruling, Department of Justice counsel responded by filing a motion for summary judgment, which was denied in January of 2006. In his opinion, Chief Judge Damich of the Court of Federal Claims said that the Federal Circuit had held that National Guard members were entitled to compensation for the completion of required correspondence courses, and that any other conclusion was inconsistent with the plain language of the law.

The Senate Armed Services Committee, at the behest of the Government’s lawyers, has added into the giant 2007 National Defense Authorization bill, without a vote, a provision that seeks to undo the Court’s decision and extinguish the legally established rights of National Guard members at a time when they are performing extraordinary service to our country at home and abroad.

Members of the Guard called on Congress to stop the injustice that would follow if this section is enacted. As Brigadier General (Ret.) Johnson, who served 38 years with the North Carolina Army National Guard explains, “The correspondence coursework Guard members have been required to complete gives them the knowledge and skills necessary to buttress disaster relief efforts at home, as well as to serve at the tip of the spear abroad. It is simply unjust for Congress to renege on its statutory obligation to pay National Guard members for the very training that enables their critical service.”

The injustice is particularly great given the unprecedented sacrifices Guard members are being asked to make to preserve our nation’s security. “We are patrolling the Mexican border and fighting in Iraq,“ said Lt. Col. (Ret,) Robert Freeburg, a former member of both the Hawaii Air and Army National Guards. “At the same time, our government is deciding that we don't deserve compensation for the training we needed to do this work. Where is Congress when we need protection? “

Sergeant First Class William A. Clark, a member of the Alabama Army National Guard since 1987 added: “permitting the passage of legislation that would seek to deprive the National Guard from vested rights to compensation would send entirely the wrong message to those who are being asked to sacrifice so much. To do so by intervening directly in our court system is a slap in the faces of those defending this country.”

Background information follows.

At the very moment when the United States is asking so much from the National Guard, Congress is set to enact legislation that would deny National Guard members just compensation for time spent in training, and interfere with a legal case that has been pending for six years.

On January 25, 2006, United States Court of Federal Claims Chief Judge, Edward J. Damich denied a Department of Justice (DoJ) motion to dismiss a lawsuit lodged by Army and Air National Guard members against the United States. Initiated in 2000, the suit seeks compensation for time related to correspondence courses the Department of Defense (DoD) required the soldiers and airmen take in order to maintain or advance in rank.

The ruling was the second DOJ setback in the case, following a unanimous 2003 Federal Circuit Court opinion holding that the U.S. must compensate Guard members taking mandatory courses. The decision sets the stage for the plaintiffs and their comrades-in-arms – volunteer members of a military branch on which the U.S. increasingly relies for national and homeland defense purposes – to be able to perform their critical duties without incurring serious, harmful and unreasonable financial strain.

As the Federal Circuit made plain in its ruling, the United States Code ( Title 37 Section 206) plainly provides that the plaintiffs and all similarly situated Guard members be compensated for time spent on such studies, stating that “members of the National Guard…are entitled to compensation for each regular period of instruction or for the performance of such other equivalent training, instruction, duty or appropriate duties.” Yet the government has persistently refused to hold up its end of the bargain.

Now the Senate Armed Services Committee, at the behest of attorneys for the government, has slipped a provision into the giant 2007 Defense Authorization Bill that would undo the Court’s decision and retroactively to 1962 extinguish the rights of tens of thousands of our National Guard members. The provision seeks not only to block the implementation of the Federal Circuit’s ruling in the current case, but to bar any further claims for past compensation on the same grounds.

In a 2003 letter to then U.S. Attorney General John Ashcroft, Senators Kit Bond (R-MO), Patrick Leahy (D-VT) and 17 other U.S. Senators wrote, on behalf of the bi-partisan Senate National Guard Caucus:

“The [Caucus] believes that the Department of Justice should act promptly to implement the Federal Circuit’s definitive ruling that there is an obligation to pay National Guard members for correspondence course-work taken as part of the military training...We do not want to send the wrong message to these citizen soldiers and their families while they are playing such a vital role, at great personal sacrifice, in serving the needs of our country.”

To deny Guard members compensation to which they are statutorily entitled at a time when our country asks so much of them is strikingly unjust. Permitting the passage of legislation that would seek to deprive Alabama’s citizen soldiers and rest of the National Guard from vested rights to compensation would send entirely the wrong message to those who are being asked to sacrifice so much for their country.

Sergeant First Class William A. Clark has been a member of the Alabama Army National Guard since 1987. He currently serves as saxophone section leader in a unit whose primary function is to that of ceremonial military band. The secondary function is to serve as an infantry unit.

Lieutenant Colonel Robert E. Freeburg, Retired, has served in the United States Armed Forces in some capacity since November 1968. After active duty with the United States Marines from 1968 through 1974, he served with the Hawaii Army National Guard. He joined the Hawaii Air National Guard in July of 1991, and was serving there as a Wing Inspector General upon his retirement on March 1, 2004.

Brigadier General Willie R. Johnson, Retired, began his service in the North Carolina Army National Guard in 1963. From March 1996 through March 1998, he served as Deputy to the Adjutant General for the North Carolina National Guard. From March 1998 until his retirement, he served as commander of the 60th Troop Command, North Carolina Army National Guard. He retired as a Brigadier General on September 16, 2001, after 38 years of service.

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