The 2023 National Defense Authorization Act and Its Potential Impacts on the Practice of Law

The 2023 National Defense Authorization Act and Its Potential Impacts on the Practice of Law

3.28.2023

By Chad H. Lennon

 

The National Defense Authorization Act for fiscal year 2023 was signed by the president on Dec. 23, 2022. The act brought about changes that can affect the practice of military law as well as other areas such as family law, criminal law and trusts and estates. Two of the most impactful changes will affect the Survivor Benefit Plan and the COVID-19 vaccine mandate. The act also brought about changes to the Uniform Code of Military Justice, titling actions, inspector general complaints and a few other changes.

The Survivor Benefit Plan ensures a continuous annuity to spouses and dependents of military retirees based on the pension earned by the service member if the service member dies first. It is an insurance plan that will pay a surviving spouse and/or others monthly to compensate them for the pension the service member earned. The premium is paid from the gross retired pay, so it does not count toward income. This plan is a small but important area of law that has long-term effects, especially in family law. The National Defense Authorization Act requires an open enrollment period for the plan for the first time in over a decade. The open enrollment period is open now until Jan. 1, 2024. A retiree will be able to make changes as well as enroll a beneficiary in the plan. Any changes will be effective as of the first day of the month following the election. However, a change may require back pay for the premiums from the first day a beneficiary would have been eligible. As of right now, the Defense Finance Accounting Service is still working through the policies, procedures and forms before accepting any enrollments or changes. This is just one of many significant changes outlined in the recently signed act.

The act also directed the rescinding of the COVID-19 vaccine mandate for service members. Recently, the secretary of defense put forth a memorandum stating all negative paperwork associated with a service member that solely refers to the COVID-19 vaccine will be removed from the service member’s record. The new rule does not require removal of bad paper from the personnel files of veterans and former service members. Those individuals are required to petition their respective board for correction of military records. The secretary of defense recently directed that if a service member received a discharge of other than honorable, the discharge will also be upgraded to at least general. Additionally, any Department of Defense contractors will have the COVID-19 vaccine mandate temporarily suspended.

The military justice system will also undergo some minor changes. The previous National Defense Authorization Act required some changes to the military justice system regarding sexual harassment/assault claims. This year’s act will provide additional covered offenses to those over which the Office of Special Trial Counsel will exercise authority, requiring the president to amend the “Manual for Courts-Martial” to ensure that residual prosecutorial and judicial duties with respect to covered offenses are transferred to an appropriate entity, and requiring comprehensive reporting from the Department of Defense regarding implementation of the 2022 changes. Article 66 of the Uniform Code of Military Justice will be amended to authorize judicial review of any conviction by court martial, regardless of the sentence imposed. Additionally, Article 69 will be amended to clarify the scope of review in general and special court-martial cases reviewed by a judge advocate general. Finally, Article 25 will be amended to require the random selection of personnel to serve as panel members on courts martial under regulations prescribed by the president. Titling for criminal investigations will undergo some changes as well.

A service member is “titled” when the military’s criminal investigation elements (the Naval Criminal Investigative Service, Office of Special Investigations, and the Army Criminal Investigation Division) enter the service member’s name in the title block of a criminal investigation report. This is not a judicial decision but an administrative procedure. Currently, titling requires credible information that the service member committed the offense, a much lower standard than the previous probable cause standard. This is vastly different from a criminal conviction, which requires proof beyond a reasonable doubt. Once titled, the titling action will appear on an FBI background check of a service member/veteran and make it appear as if he or she was arrested or convicted of an offense when no such conviction ever took place. Once titled, removal is difficult, and many service members never know a titling action was taken against them. The National Defense Authorization Act now requires the investigatory bodies to notify any service member who was the subject of investigation, the crime investigated for, and how a service member may seek removal from being titled. The act also provided guidance to agencies about removing titling. To remove the titling, a service member or veteran will have to request the investigating agency remove their name or factual inaccuracies from the record of titling. If the request is denied, the service member or veteran will have to request relief from the Board for the Correction of Military Records.

Some other more minor changes that may affect the legal field are: (1) allowing a service member whose sole dependent dies to continue to receive a basic allowance for housing at the “with dependents” rate for a period up to 365 days after the death of the dependent; (2) a 4.6% pay raise; (3) establishing a Cold Case Unit in the Army Criminal Investigation Division (the Departments of the Navy and Air Force already have one within their criminal investigation service and office respectively); and (4) the Department of Defense will provide a report about potential changes to marijuana-based offenses, which could bring about a major change for those discharged based on a marijuana charge in the past.

Congress passed the 2023 National Defense Authorization Act, but there could be other changes based on the interpretation provided by the secretary of defense and further guidance from Congress. One subject that many expect further clarification on involves veterans who were separated or punished based on not receiving the COVID-19 vaccine and what they can do to correct their records.

Attorneys need to be aware of these changes due to the effect they can have on a client. The Survivor Benefit Plan is an annuity that can affect a client for practitioners who work in family law and trusts and estates. Specific to family law, beneficiaries may be appointed through a divorce; however, the change in the program must be made through a deemed election with the Defense Finance Accounting Service. Many attorneys have falsely believed a divorce decree would be sufficient to make a change in a beneficiary. There are also cases where an attorney relied on the opposing party to make a deemed election with the accounting service. However, these actions may never have taken place. This can cost a client tens of thousands of dollars. Now that the Defense Finance Accounting Service has an open season, any mistakes from the past can be corrected during the calendar year.

Criminal defense attorneys should be aware that a titling action can affect a client who claims not to have a criminal record; if the veteran client was never convicted by court martial while in service, this is correct. However, the client may have been unknowingly titled by the criminal investigation division, since there was previously no duty to notify anyone of a titling action. An FBI background check may demonstrate a record that appears to show a conviction despite no judicial action ever taking place.

The uniqueness of military law is that it can apply across multiple practice areas. Attorneys across the numerous practice areas should be aware of the changes associated with the fiscal year 2023 National Defense Authorization Act as these changes could impact a client who is a veteran, service member or a family member of a veteran or service member.

Chad H. Lennon is a senior associate attorney at Tully Rinckey, where he works in the military law, federal employment law and security clearance practice groups. He is also the co-chair for the New York State Bar Association Committee on Veterans and co-chair for the Suffolk County Bar Associate Committee on Military and Veterans Affairs. Mr. Lennon is currently serving as a Marine Corps major in the Reserves and is a Purple Heart recipient.