To enhance the benefits and protections for members of the reserve components of the Armed Forces who are called or ordered to extended active duty, and for other purposes.

January 24, 2005

Mr. DAYTON (for himself, Mr. REID, Mr. DORGAN, Mr. LEAHY, Ms. MIKULSKI, Mr. CORZINE, and Mr. JOHNSON) introduced the following bill; which was read twice and referred to the Committee on Armed Services

To enhance the benefits and protections for members of the reserve components of the Armed Forces who are called or ordered to extended active duty, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

This Act may be cited as the `National Guard and Reserve Bill of Rights Act of 2005'.

SEC. 2. PERIODS OF DEPLOYMENTS OF RESERVES OVERSEAS.

(a) UNITED STATES CENTRAL COMMAND DEPLOYMENTS-

(1) LIMITATION- During a period when there is in effect a policy of assigning units or members of one or more of the active components of the Armed Forces to duty in the area of responsibility of the United States Central Command for a specified period of time of not less than one year, the Secretary of Defense shall provide that the length of such an assignment in the case of members of the reserve components of the Armed Forces may not exceed the length of such period for the corresponding active component reduced by the period of time between the date of entry of the reserve component members onto active duty and the date of the deployment of such members for such assignment.

(2) TRANSITION- Paragraph (1) applies to members of reserve components assigned to duty in the area of responsibility of the United States Central Command on or after the date of the enactment of this Act and to such members assigned to such duty before such date who as of the date of the enactment of this Act have more than 90 days remaining in such assignment.

(b) COMMUNICATION OF LENGTHS OF DEPLOYMENT PERIODS TO RESERVES IN OPERATION IRAQI FREEDOM-

(1) FINDINGS- Congress makes the following findings:

(A) Members of all components of the Armed Forces, active and reserve, exhibit a remarkable commitment and willingness to serve their country in Iraq and Afghanistan, and other United States military efforts around the world and, in doing so, frequently face grave risks and difficulties.

(B) While the members of the Armed Forces have clearly and consistently demonstrated their dedication to duty, much uncertainty has arisen among them about the lengths of their deployments and when they will be returned to their loved ones. This confusion impairs our troops' morale and places undue strain on their families and their civilian employers.

(C) Fairness to the men and women of the Armed Forces deployed overseas requires that the Department of Defense--

(i) have clear policies regarding lengths of deployment periods; and

(ii) communicate these policies and other deployment-related information to them and their families.

(D) While many military units were deployed months before Operation Iraqi Freedom was launched on March 19, 2003, the Department of Defense did not announce a policy about the length of deployments until August 2003.

(E) Even after the Department of Defense issued its so-called `one year boots-on-the-ground' policy regarding lengths of deployment periods, many of the members of units deployed overseas in Operation Iraqi Freedom learned shortly before their scheduled return dates that their deployments would be extended for months beyond the one-year period provided under that policy.

(2) REPORT-

(A) REQUIREMENT FOR REPORT- Not later than March 1, 2005, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report on Department of Defense policies governing the length of deployment periods applicable to members of reserve components of the Armed Forces in connection with Operation Iraqi Freedom, and on the communication between the Department of Defense and reserve component personnel and their families regarding the length of the deployment periods.

(B) CONSULTATION REQUIREMENT- In preparing the report under this section the Secretary shall consult with the Chairman and other members of the Joint Chiefs of Staff and with such other officials as the Secretary considers appropriate.

(C) CONTENT- The report under this paragraph shall contain a discussion of the matters described in subparagraph (A), including the following matters:

(i) The process by which the Department of Defense determined its policy regarding the length of deployment periods.

(ii) The reason that no such policy was in place before Operation Iraqi Freedom began.

(iii) A comparison of the policy during Operation Iraqi Freedom with Department

of Defense deployment policies that applied to previous contingency operations.

(iv) The timeliness of the process for notifying reserve component units for activation.

(v) The process for communicating with activated reserve component members and their families about demobilization schedules.

(vi) The family support programs provided by the National Guard and other reserve components for families of activated Reserves.

(vii) An assessment of lessons learned about how the increased operations tempo of the National Guard and other reserve components can be expected to affect readiness, recruitment and retention, civilian employers of Reserves, and equipment and supply resources of the National Guard and the other reserve components.

(D) MATTERS FOR PARTICULAR EMPHASIS- In the discussion of the matters included in the report under this subsection, the Secretary of Defense shall place particular emphasis on--

(i) lessons learned, including deficiencies identified; and

(ii) near-term and long-term corrective actions to address the identified deficiencies.

(E) FORM OF REPORT- The report shall be submitted in unclassified form, but may include a classified annex.

SEC. 3. MILITARY PAY.

(a) CORRECTION OF PAY PROBLEMS FOR ACTIVATED RESERVE COMPONENT PERSONNEL-

(1) REQUIREMENT FOR SENIOR LEVEL ACTION- The Secretary of the Army shall designate a senior level official of the Department of the Army to implement--

(A) the recommendations for executive action set forth in the report of the Comptroller General of the United States entitled `Military Pay, Army National Guard Personnel Mobilized to Active Duty Experienced Significant Pay Problems', dated November 2003; and

(B) the recommendations for executive action set forth in the report of the Comptroller General of the United States entitled `Military Pay, Army Reserve Soldiers Mobilized to Active Duty Experienced Significant Pay Problems', dated August 2004.

(2) SUPERVISION BY COMPTROLLER OF DEPARTMENT OF DEFENSE- The official designated under paragraph (1) shall report directly to, and be subject to the direction of, the Under Secretary of Defense (Comptroller) regarding performance of the duties that the official is designated to carry out under such paragraph.

(3) TERMINATION OF REQUIREMENT- The designation under paragraph (1) shall terminate upon the certification of the Under Secretary of Defense (Comptroller) to Congress that all recommendations referred to in such paragraph have been implemented.

(b) REENLISTMENT BONUS FOR SELECTED RESERVE-

(1) EXPANDED ELIGIBILITY- Subsection (a)(1) of section 308b of title 37, United States Code, is amended by striking `16 years' and inserting `17 years'.

(2) INCREASED MAXIMUM AMOUNT- Subsection (b) of such section is amended by striking `(b) BONUS AMOUNT; PAYMENT- (1) The amount of a bonus under this section may not exceed--' and all that follows through the end of paragraph (1) and inserting the following:

`(b) BONUS AMOUNT- The amount of a bonus under this section may not exceed $15,000.'.

(3) OPTION TO RECEIVE LUMP-SUM PAYMENT- Section 308b of title 37, United States Code, is further amended--

(A) by striking paragraphs (1) and (2) of subsection (c); and

(B) in paragraph (2) of subsection (b), by striking `(2) Bonus payments' and all that follows through `If the bonus' in the second sentence and inserting the following:

`(c) PAYMENT IN LUMP SUM OR INSTALLMENTS- (1) A bonus payable to a member under this section shall be paid, upon the election of the member, in one lump sum or in partial payments under paragraph (2).

`(2) If the bonus'.

(4) REDESIGNATION OF PROVISIONS- Such section is further amended--

(A) by redesignating subsections (d), (e), and (f), as subsections (e), (f), and (g), respectively; and

(B) in subsection (c)(3)--

(i) by striking `(3) In the case of' and inserting `(d) PERSONNEL IN CERTAIN CONTINGENCY OPERATIONS- In the case of'; and

(ii) by striking `paragraph (1)(B) or'.

SEC. 4. TRICARE FOR RESERVE COMPONENT PERSONNEL.

(a) EXPANDED ELIGIBILITY OF READY RESERVE MEMBERS UNDER TRICARE PROGRAM-

(1) UNCONDITIONAL ELIGIBILITY- Subsection (a) of section 1076b of title 10, United States Code, is amended by striking `is eligible, subject to subsection (h), to enroll in TRICARE' and all that follows through `an employer-sponsored health benefits plan' and inserting `, except for a member who is enrolled or is eligible to enroll in a health benefits plan under chapter 89 of title 5, is eligible to enroll in TRICARE, subject to subsection (h)'.

(2) PERMANENT AUTHORITY- Subsection (l) of such section is repealed.

(3) CONFORMING REPEAL OF OBSOLETE PROVISIONS- Such section is further amended--

(A) by striking subsections (i) and (j); and

(B) by redesignating subsection (k) as subsection (i).

(b) CONTINUATION OF NON-TRICARE HEALTH BENEFITS PLAN COVERAGE FOR CERTAIN RESERVES CALLED OR ORDERED TO ACTIVE DUTY AND THEIR DEPENDENTS-

(1) REQUIRED CONTINUATION-

(A) REQUIREMENT- Chapter 55 of title 10, United States Code, is amended by inserting after section 1078a the following new section:

`Sec. 1078b. Continuation of non-TRICARE health benefits plan coverage for dependents of certain Reserves called or ordered to active duty

`(a) PAYMENT OF PREMIUMS- The Secretary concerned shall pay the applicable premium to continue in force any qualified health benefits plan coverage for the members of the family of an eligible reserve component member for the benefits coverage continuation period if timely elected by the member in accordance with regulations prescribed under subsection (j).

`(b) ELIGIBLE MEMBER; FAMILY MEMBERS- (1) A member of a reserve component is eligible for payment of the applicable premium for continuation of qualified health benefits plan coverage under subsection (a) while serving on active duty pursuant to a call or order issued under a provision of law referred to in section 101(a)(13)(B) of this title during a war or national emergency declared by the President or Congress.

`(2) For the purposes of this section, the members of the family of an eligible reserve component member include only the member's dependents described in subparagraphs (A), (D), and (I) of section 1072(2) of this title.

`(c) QUALIFIED HEALTH BENEFITS PLAN COVERAGE- For the purposes of this section, health benefits plan coverage for the members of the family of a reserve component member called or ordered to active duty is qualified health benefits plan coverage if--

`(1) the coverage was in force on the date on which the Secretary notified the reserve component member that issuance of the call or order was pending or, if no such notification was provided, the date of the call or order;

`(2) on such date, the coverage applied to the reserve component member and members of the family of the reserve component member; and

`(3) the coverage has not lapsed.

`(d) APPLICABLE PREMIUM- The applicable premium payable under this section for continuation of health benefits plan coverage for the family members of a reserve component member is the amount of the premium payable by the member for the coverage of the family members.

`(e) MAXIMUM AMOUNT- The total amount that the Department of Defense may pay for the applicable premium of a health benefits plan for the family members of a reserve component member under this section in a fiscal year may not exceed the amount determined by multiplying--

`(1) the sum of one plus the number of the family members covered by the health benefits plan, by

`(2) the per capita cost of providing TRICARE coverage and benefits for dependents under this chapter for such fiscal year, as determined by the Secretary of Defense.

`(f) BENEFITS COVERAGE CONTINUATION PERIOD- The benefits coverage continuation period under this section for qualified health benefits plan coverage for the family members of an eligible reserve component member called or ordered to active duty is the period that--

`(1) begins on the date of the call or order; and

`(2) ends on the earlier of--

`(A) the date on which the reserve component member's eligibility for transitional health care under section 1145(a) of this title terminates under paragraph (3) of such section; or

`(B) the date on which the reserve component member elects to terminate the continued qualified health benefits plan coverage of the member's family members.

`(g) EXTENSION OF PERIOD OF COBRA COVERAGE- Notwithstanding any other provision of law--

`(1) any period of coverage under a COBRA continuation provision (as defined in section 9832(d)(1) of the Internal Revenue Code of 1986) for an eligible reserve component member under this section shall be deemed to be equal to the benefits coverage continuation period for such member under this section; and

`(2) with respect to the election of any period of coverage under a COBRA continuation provision (as so defined), rules similar to the rules under section 4980B(f)(5)(C) of such Code shall apply.

`(h) NONDUPLICATION OF BENEFITS- A member of the family of a reserve component member who is eligible for benefits under qualified health benefits plan coverage paid on behalf of the reserve component member by the Secretary concerned under this section is not eligible for benefits under the TRICARE program during a period of the coverage for which so paid.

`(i) REVOCABILITY OF ELECTION- A reserve component member who makes an election under subsection (a) may revoke the election. Upon such a revocation, the member's family members shall become eligible for benefits under the TRICARE program as provided for under this chapter.

`(j) REGULATIONS- The Secretary of Defense shall prescribe regulations for carrying out this section. The regulations shall include such requirements for making an election of payment of applicable premiums as the Secretary considers appropriate.'.

(B) CLERICAL AMENDMENT- The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 1078a the following new item:

`1078b. Continuation of non-TRICARE health benefits plan coverage for dependents of certain Reserves called or ordered to active duty.'.

(2) APPLICABILITY- Section 1078b of title 10, United States Code (as added by paragraph (1)), shall apply with respect to calls or orders of members of reserve components of the Armed Forces to active duty as described in subsection (b) of such section, that are issued by the Secretary of a military department before, on, or after the date of the

enactment of this Act, but only with respect to qualified health benefits plan coverage (as described in subsection (c) of such section) that is in effect on or after the date of the enactment of this Act.

SEC. 5. CHILD CARE FOR CHILDREN OF MEMBERS OF ARMED FORCES ON ACTIVE DUTY FOR OPERATION ENDURING FREEDOM OR OPERATION IRAQI FREEDOM.

(a) CHILD CARE FOR CHILDREN WITHOUT ACCESS TO MILITARY CHILD CARE-

(1) AUTHORITY- In any case where the children of a covered member of the Armed Forces are geographically dispersed and do not have practical access to a military child development center, the Secretary of Defense may, to the extent funds are available for such purpose, provide such funds as are necessary to permit the member's family to secure access for such children to State licensed child care and development programs and activities in the private sector that are similar in scope and quality to the child care and development programs and activities the Secretary would otherwise provide access to under subchapter II of chapter 88 of title 10, United States Code, and other applicable provisions of law.

(2) PROCEDURES- Funds may be provided under paragraph (1) in accordance with the provisions of section 1798 of title 10, United States Code, or by such other mechanism as the Secretary considers appropriate.

(3) PRIORITIES- The Secretary shall prescribe in regulations priorities for the allocation of funds for the provision of access to child care under paragraph (1) in circumstances where funds are inadequate to provide all children described in that paragraph with access to child care as described in that paragraph.

(b) PRESERVATION OF SERVICES AND PROGRAMS- The Secretary shall provide for the attendance and participation of children in military child development centers and child care and development programs and activities under subsection (a) in a manner that preserves the scope and quality of child care and development programs and activities otherwise provided by the Secretary.

(c) FUNDING- Amounts otherwise available to the Department of Defense and the military departments under this Act may be available for purposes of providing access to child care under subsection (a).

(d) DEFINITIONS- In this section:

(1) COVERED MEMBERS OF THE ARMED FORCES- The term `covered members of the Armed Forces' means members of the Armed Forces on active duty, including members of the Reserves who are called or ordered to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code, for Operation Enduring Freedom or Operation Iraqi Freedom.

(2) MILITARY CHILD DEVELOPMENT CENTER- The term `military child development center' has the meaning given such term in section 1800(1) of title 10, United States Code.

SEC. 6. USERRA IMPLEMENTING REGULATIONS.

(a) REQUIREMENT FOR REGULATIONS- Subsections (a) and (b)(1) of section 4331 of title 38, United States Code, are amended by striking `may prescribe' and inserting `shall prescribe'.

(b) CLARIFICATION OF RIGHT TO MERIT PAY INCREASES- The regulations prescribed for the implementation of chapter 43 of title 38, United States Code, under section 4331 of such title shall include regulations that clarify that the entitlement of persons returning to employment under such chapter to receive pay increases under merit pay systems of employers may not be denied on the basis of lack of work performance evaluations for periods of absence for active duty in the uniformed services.

SEC. 7. IMPROVED EDUCATIONAL ASSISTANCE BENEFITS FOR MEMBERS OF THE SELECTED RESERVE.

(a) INCREASE IN AMOUNT OF BASIC EDUCATIONAL ASSISTANCE-

(1) IN GENERAL- Section 16131(b) of title 10, United States Code, is amended to read as follows:

`(b) Except as provided in subsections (d) through (f), each educational assistance program established under subsection (a) shall provide for payment by the Secretary concerned, through the Secretary of Veterans Affairs, to each person entitled to educational assistance under this chapter who is pursuing a program of education of an educational assistance allowance at the following monthly rates:

`(1) For such a program of education pursued on a full-time basis, at the monthly rate equal to the applicable percentage (as defined in paragraph (3)) of the rate that applies for the month under section 3015(a)(1) of title 38.

`(2)(A) Subject to subparagraph (B), for such a program of education pursued on less than a full-time basis, at an appropriately reduced rate, as

determined under regulations which the Secretaries concerned shall prescribe.

`(B) No payment may be made to a person for less than half-time pursuit of such a program of education if tuition assistance is otherwise available to the person for such pursuit from the military department concerned.

`(3) In this subsection, the term `applicable percentage' means, with respect to months occurring during--

`(A) fiscal year 2005, 33 percent;

`(B) fiscal year 2006, 37 percent;

`(C) fiscal year 2007, 41 percent;

`(D) fiscal year 2008, 45 percent; and

`(E) fiscal year 2009, and each subsequent fiscal year, 50 percent.'.

(2) EFFECTIVE DATE- The amendments made by paragraph (1) shall take effect on October 1, 2005, and shall apply with respect to educational assistance allowances under section 16131(b) of such title paid for months after September 2005.

(b) Expansion of Eligibility Requirements for Members of the Selected Reserve Having Served on Active Duty for a Period of 24 Non-Consecutive Months Under Chapter 30 of Title 38, United States Code-

(1) CREDIT FOR 24 MONTHS OF ACTIVE DUTY SERVICE OVER A PERIOD OF 5 YEARS- Subsection 3012(a) of title 38, United States Code, is amended in paragraphs (1)(A)(i), (1)(B)(i), and (1)(C)(iii)(I) by striking `two years of continuous active duty' each place it appears and inserting `a cumulative period of 24 months during any 5-year period'.

(2) CONFORMING AMENDMENT- Subsection (b) of section 3012 of such title is amended in paragraph (1) by striking `during such two years' and inserting `at any time during such 5-year period'.

(3) EFFECTIVE DATE- The amendments made by this subsection shall apply on or after October 1, 2005.

SEC. 8. REDUCTION IN AGE FOR RECEIPT OF MILITARY RETIRED PAY FOR NONREGULAR SERVICE.

(a) REDUCTION IN AGE- Section 12731(a)(1) of title 10, United States Code, is amended by striking `at least 60 years of age' and inserting `at least 55 years of age'.

(b) APPLICATION TO EXISTING PROVISIONS OF LAW OR POLICY- With respect to any provision of law, or of any policy, regulation, or directive of the executive branch, that refers to a member or former member of the uniformed services as being eligible for, or entitled to, retired pay under chapter 1223 of title 10, United States Code, but for the fact that the member or former member is under 60 years of age, such provision shall be carried out with respect to that member or former member by substituting for the reference to being 60 years of age a reference to the age in effect for qualification for such retired pay under section 12731(a) of title 10, United States Code, as amended by subsection (a).

(c) EFFECTIVE DATE- The amendment made by subsection (a) shall take effect on the first day of the first month beginning on or after the date of the enactment of this Act and shall apply to retired pay payable for that month and subsequent months.

SEC. 9. DEPUTY UNDER SECRETARY OF DEFENSE FOR PERSONNEL AND READINESS (RESERVE AFFAIRS).

(a) ESTABLISHMENT OF POSITION-

(1) POSITION AND DUTIES- Chapter 4 of title 10, United States Code, is amended by inserting after section 136a the following new section:

`Sec. 136b. Deputy Under Secretary of Defense for Personnel and Readiness (Reserve Affairs)

`(a) There is a Deputy Under Secretary of Defense for Personnel and Readiness (Reserve Affairs), appointed from civilian life by the President, by and with the advice and consent of the Senate.

`(b) The Deputy Under Secretary of Defense for Personnel and Readiness (Reserve Affairs) shall have as his principal duty the overall supervision of reserve component affairs of the Department of Defense.'.

(2) CLERICAL AMENDMENT- The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 136a the following new item:

`136b. Deputy Under Secretary of Defense for Personnel and Readiness (Reserve Affairs).'.

(b) EXECUTIVE LEVEL IV- Section 5315 of title 5, United States Code, is amended by inserting after `Deputy Under Secretary of Defense for Personnel and Readiness.' the following:

`Deputy Under Secretary of Defense for Personnel and Readiness (Reserve Affairs).'.

(c) ELIMINATION OF POSITION OF ASSISTANT SECRETARY OF DEFENSE FOR RESERVE AFFAIRS-

(1) REPEAL OF REQUIREMENT FOR POSITION- Subsection (b) of section 138 of title 10, United States Code, is amended--

(A) by striking paragraph (2); and

(B) by redesignating paragraphs (3), (4), and (5), as paragraphs (2), (3), and (4), respectively.

(2) REDUCTION IN TOTAL NUMBER OF ASSISTANT SECRETARIES OF DEFENSE-

(A) AUTHORIZED NUMBER- Subsection (a) of such section is amended by striking `nine' and inserting `eight'.

(B) CONFORMING AMENDMENT- Section 5315 of title 5, United States Code, is amended by striking `(9)' after `Assistant Secretaries of Defense' and inserting `(8)'.

(d) EFFECTIVE DATE- The amendments made by subsection (c) shall take effect on the date on which a person is first appointed as Deputy Under Secretary of Defense for Personnel and Readiness (Reserve Affairs).

END