Military Legal Assistance

Presented byPresented by

Captain Michael J. BerensCaptain Michael J. Berens

Summary

The scope of legal assistance in the Air Force

Servicemembers Civil Relief Act (SCRA)

Uniformed Services Employment and Reemployment Rights Act (USERRA)

The Importance of Legal Assistance

The Importance of Legal Assistance

Legal Assistance – Scope

Wills Wills Living Wills Living Wills Durable Power of Attorney for Durable Power of Attorney for

Health Care Health Care Tax CenterTax Center Divorce and Custody Divorce and Custody Landlord - TenantLandlord - Tenant Creditor IssuesCreditor Issues

Legal Assistance – Scope

Lemon LawsLemon Laws BankruptcyBankruptcy Small ClaimsSmall Claims Name ChangeName Change Document Review Document Review Power of Attorney (Special & Power of Attorney (Special &

General)General)

SCRA (formerly SSCRA)

Boone v. Lightner, 319 U.S. 561, 575 (1943)

“The Soldiers’ and Sailors’ Civil Relief Act is always to be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation.”

SCRA (formerly SSCRA)

Le Maistre v. Leffers, 333 U.S. 1, 6 (1948)

“The Act should be read with an eye friendly to those who dropped their affairs to answer their country’s call.”

SCRA

SSCRA → → SCRA (19 Dec 03)

SCRA clarified language in the

SSCRA

Codified years of judicial

interpretation

Updated the law to reflect change of

times

SCRA

Who is protected under statute?

Active Duty Military Members

National Guard (active status > 30

days)

Reserve Members (active status > 30

days)

SCRA

Who is protected under statute?§ 513 Other persons primarily or

secondarily liable “the court may likewise grant” ” § 538 Dependents “if the dependent's ability to comply

with a lease, contract, bailment, or other obligation is materially affected by reason of the servicemember's military service”

SCRA

Jurisdiction

“This Act applies to any judicial or administrative proceeding commenced in any court or agency in any jurisdiction subject to this Act” § 512

Exception Criminal Proceedings

SCRA

PurposePurpose

Was the Act designed to grant military Was the Act designed to grant military membersmembers

immunity from or provide a defense to immunity from or provide a defense to liability? liability?

SCRA § 502

(1) to provide for, strengthen, and expedite the national defense through protection extended by this Act to servicemembers of the United States to enable such persons to devote their entire energy to the defense needs of the Nation; and

(2) to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service.

SCRA

§517 Waiver1) In writing 2) Separate instrument3) Waiver must apply to a written

agreement entered into during or after military service

SCRA

§518Exercise of rights under Act not to

affect certainfuture financial transactions

SCRA

Should an attorney representing a Should an attorney representing a servicememberservicemember

have the authority to invoke have the authority to invoke protections granted protections granted

by the Act? by the Act?

SCRA

Should a person possessing a valid Should a person possessing a valid power ofpower of

attorney have the authority to invoke attorney have the authority to invoke protectionsprotections

granted by the Act? granted by the Act?

SCRA

§519

Under the act a representing attorney or

person holding a valid POA is deemed a

“legal representative”

SCRA Protections

Default Judgments §521Default Judgments §521

Stay of Proceedings §522Stay of Proceedings §522

Fines/Penalties under contracts §523Fines/Penalties under contracts §523

Stay or Vacation of Execution of Stay or Vacation of Execution of

Judgments §524Judgments §524

Statute of Limitation §526Statute of Limitation §526

SCRA

Interest Rate Cap (6%) § 527Interest Rate Cap (6%) § 527

All debts incurred prior to entering AD All debts incurred prior to entering AD serviceservice

Notice required Notice required

Exception for creditorsException for creditors

SCRA

Eviction § 531Eviction § 531

Current military serviceCurrent military service

+ Primary Residence+ Primary Residence

+ Monthly rent < $2,400/month+ Monthly rent < $2,400/month

= SM or dependents cannot be = SM or dependents cannot be evictedevicted

Exception:Exception: Court Order Court Order

SCRA

Installment Contracts/Leases §532Installment Contracts/Leases §532

Court order required to rescind or Court order required to rescind or terminate aterminate a

contract for breach of terms where contract for breach of terms where the contractthe contract

was entered into before or during was entered into before or during service. service.

SCRA

Lease Termination § 535Lease Termination § 535

Right to terminate lease of residence Right to terminate lease of residence or motoror motor

vehicle:vehicle:

Upon lessee’s entry into AD serviceUpon lessee’s entry into AD service

Premises: PCS Orders or >90 day Premises: PCS Orders or >90 day deploymentdeployment

Vehicle: Overseas PCS or > 180 days Vehicle: Overseas PCS or > 180 days deploymentdeployment

SCRA

Life insurance policy protections § Life insurance policy protections § 536536

Storage liens § 537Storage liens § 537 Unpaid taxes – sale of property § Unpaid taxes – sale of property §

561 561 Income taxes – deferral, no penalty Income taxes – deferral, no penalty

§ 570§ 570 Malpractice insurance protections § Malpractice insurance protections §

593593 Private health insurance reinstated Private health insurance reinstated

§ 594§ 594 State of domicile for voting § 595State of domicile for voting § 595

SCRA

The SCRA does not:The SCRA does not:

Award attorney feesAward attorney fees

Award specific damagesAward specific damages

USERRA

Uniformed Services Employment and Uniformed Services Employment and

Reemployment Rights ActReemployment Rights Act

USERRA

Purposes:Purposes:

Encourages non-career service in the Encourages non-career service in the militarymilitary

Workplace /community disruption is Workplace /community disruption is minimizedminimized

Discrimination is prohibitedDiscrimination is prohibited

USERRA

ApplicabilityApplicability

All civilian employersAll civilian employers

All employees employed by an All employees employed by an

employeremployer

Performing military servicePerforming military service

USERRA

NoticeNotice

Verbal or written notice required Verbal or written notice required

Inactive duty trainingInactive duty training

USERRA

TimingTiming

5-year maximum5-year maximum

Exceptions to the limit applyExceptions to the limit apply

USERRA

Honorable discharge is required Honorable discharge is required Notice of return to workNotice of return to work Hospitalization/ConvalescenceHospitalization/Convalescence Effect of failure to reportEffect of failure to report

USERRA

ReemploymentReemployment

Returning employees are entitled to Returning employees are entitled to promptprompt

reemployment is specifically identifiedreemployment is specifically identifiedemployment positionsemployment positions

Days of service dictate positionDays of service dictate position

DisabilityDisability

USERRA

Employer ExceptionsEmployer Exceptions

Change in circumstancesChange in circumstances

Efforts to qualify failEfforts to qualify fail

Efforts to accommodate failEfforts to accommodate fail

Summary

The scope of legal assistance in the Air Force

Servicemembers Civil Relief Act (SCRA)

Uniformed Services Employment and Reemployment Rights Act (USERRA)