When Joe Biden was sworn in as the 46th president of the United States, he did so under the protection and observation of 26,000 National Guardsmen. These men and women were activated from across the nation, spurred on by the events of Jan. 6, when a violent mob stormed the Capitol building intent on subverting a free and fair election.
And yet, despite wearing the same uniform of U.S. troops all over the world, it is unclear if these men and women will be entitled to the same pay and benefits as active-duty or reserve troops wearing the same uniform. Due to a broken system of complicated legal authorities, and disregard for the promises made to those who volunteer to serve our nation.
The National Guard troops protecting the Capitol were activated under Title 32 of the U.S. code, a subsection referred to as 502(f) orders, which are typically utilized to deploy the National Guard in response to natural disasters. These 502(f) orders were also used to deploy the Guard to the southern border, and more recently, in response to COVID-19.
The Guard accrues eligibility for federal benefits differently than active duty and reserve troops. Think of accruing benefits in terms of “days.” In order to receive 50-percent eligibility for the GI Bill, a Guardsman has to accrue 90 days of qualifying service. In order to receive 100-percent eligibility, they need 36 months. But only the right kind of service days, under the right orders, qualifies.
In order for National Guard troops to receive eligibility for GI Bill benefits for the days they spend in uniform under 502(f) orders, the president must legally declare a state of national emergency. In 2019, President Trump made such a declaration, and then-Defense Mark Secretary Esper issued guidance that Guard troops sent would accrue days towards GI Bill benefits. It took time and public pressure, but eventually the Guard was taken care of.
While the former President Trump claimed he declared a state of emergency for Washington following the events of Jan. 6, no actual declaration of a national emergency materialized. Congress, concerned by the apparent lack of legal authority to provide benefits, reached out to the Defense Department for clarity on what benefits those National Guardsmen would actually receive.
Rather than declaring a new state of emergency, on Jan. 21, DoD issued personnel guidance for National Guard support to the 59th inauguration. Buried in the guidance among the routine military language for commanders is the authority to provide the men and women of the National Guard with some of the essential benefits that are promised to them upon enlistment. On what legal authority did the DoD memo rest? The national emergency declared by George W. Bush in response to the attacks of Sept. 11, 2001.
This is hardly the first time that the federal government has contorted legal language — particularly legal language surrounding 9/11 — to suit its own immediate needs. The shocking part of this guidance — besides the absurdity of a 20 year long national emergency in our nation’s capital — is the increasing frequency with which the DoD must bend over backward to avoid the embarrassment of denying troops their earned benefits. In 2020, states and lawmakers called on the DoD to extend and adjust orders for National Guardsmen responding to COVID-19, in order to allow for or maintain federal pay and benefits. In 2019, Congress called on the DoD to allow for GI Bill benefits for Guardsmen serving on the southern border. In 2016, members of both reserve components were highlighted for overseas deployments under Title 10 12304(b) orders, which afforded almost none of the benefits traditionally associated with military service.
The federal government seems to have reserved to itself a disturbing number of avenues to utilize Guardsmen and reservists, without granting them the benefits.
The problem, at its core, is that the federal government makes promises to the men and women of the National Guard and reserves when they join, and those promises are all too often broken. The promise is that they will wear the uniform of the United States armed services, they will toil, sweat, and possibly bleed for their country in that uniform. In return for that service, they will be compensated, with part of that compensation being the opportunity of a better life.
A service member in the National Guard can be called to duty by their state or by the federal government, while very few of the benefits commonly associated with service are afforded for state activations, federal activations are tied to a complicated web of legal authorities that can also leave Guardsmen and reservists in the lurch. From the bonus army of World War I, to victims of Agent Orange exposure in Vietnam, and now with the benefits for the Guard and Reserve that we rely on more every day, we are failing to honor the obligations to these Americans.
As it often does, the failure to compensate and provide for Guardsmen and reservists hinges on funding, rather than malice. DoD regularly touts its intention to be a “good steward of taxpayer dollars,” and then decides to cut orders short for the reserve components, or works with the armed services committee to develop new deployment authorities that save money on bothersome personnel costs. Unfortunately, the taxpayer tends to stay on the hook, as Congress must continually correct these injustices while allowing DoD to avoid spending money on the less glamorous parts of our national defense, like the troops.
The system ultimately — by design or defect — is designed to provide cost-effective solutions to deploy troops by reducing promised compensation.
Educational benefits that pay for both training and living expenses can be the difference between bankruptcy and prosperity in a pandemic. It is embarrassing that our government must lean on the specter of 9/11 to find justification for benefits that were already promised to our service members. If we were serious about honoring the troops in our National Guard and Reserve, we would compensate them in pay and benefits for every single day they spend in uniform as we would any other active-duty service member.
Peter Lucier is a Marine veteran, writer and a student at Saint Louis University School of Law.
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