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Military Law

Rights Of Service Members

In the past, some legal analysts contended that those in the military receive a level of constitutional protection that is inferior to that afforded to civilians. However, in United States v. Stuckey, 10 M.J. 347 (1981), the Court of Military Appeals (now called the U.S. Court of Appeals for the Armed Services) held that "the BILL OF RIGHTS applies with full force to men and women in the military service. …"

Congress, under its authority to regulate the armed forces, generally determines the due process and EQUAL PROTECTION rights of service personnel, and most courts defer to congressional authority in this area. However, the U.S. Supreme Court has made it clear that Congress must heed the Constitution when it enacts legislation that concerns the military.

Because both the FIRST AMENDMENT and the authority to regulate the military are found in the Constitution, a balance must be struck between First Amendment freedoms and the needs of the military. For example, Article 88 of the UCMJ makes it a crime for a commissioned officer to use contemptuous words against the president, vice president, Congress, and other government officials. Although this probably would be a violation of First Amendment FREEDOM OF SPEECH outside the military context, constitutional challenges to Article 88 have consistently failed. In United States v. Howe, 37 C.M.R. 555 (A.B.R. 1966), reconsideration denied, 37 C.M.R. 429 (C.M.A. 1967), a second lieutenant was convicted of violating Article 88 when he participated in an antiwar demonstration in which he carried a sign derogating President LYNDON B. JOHNSON. The court allowed his conviction to stand, even though he was off duty and wearing civilian clothes at the time of the demonstration. Similar limitations on the speech of enlisted personnel have been upheld, as well.

Military personnel are entitled to certain rights and benefits by virtue of their service. They retain the right to vote and participate in the election of the government. For income and property tax purposes, they retain the domicile in which they reside at the time of enlistment and cannot be taxed by other states where they may be stationed. The Soldiers and Sailors Civil Relief Act Amendments of 1942 (SSCRA) (50 U.S.C.A. app. §§ 514–591) protects military personnel from legal or financial disadvantage that results from their being ordered to active duty. A variety of remedies to alleviate hardship are available under the SSCRA, including stays of civil proceedings; stays of execution of judgments, attachments, or garnishments; protection against foreclosures on real or PERSONAL PROPERTY; a cap on interest rates charged on obligations incurred before active duty; and protection against evictions.

The Uniformed Services Employment and Reemployment Rights Act of 1994 (38 U.S.C.A. §§ 4301 et seq.) requires employers to rehire former employees who serve in the military for five years or less, with certain exceptions. The act also protects insurance, PENSION, and fringe benefits. The Veterans' Preference Act (1944) (5 U.S.C.A. §§ 2108 and 3309–3320) grants an employment preference to certain veterans and their survivors and enhances their job security.

Veterans also receive education benefits under the Post-Vietnam Era Veterans' Educational Assistance Program (1976) (38 U.S.C.A. ch. 32) and the New GI Bill (1987) (38 U.S.C.A. ch. 30). Education benefits are granted to spouses and dependent children of certain veterans in the Survivors' and Dependents' Educational Assistance Act (38 U.S.C.A. § 3501). Finally, most veterans are eligible for assistance in purchasing a home under a federal lender-guarantee program that lowers the mortgage interest rate and down payment that a veteran must pay (38 U.S.C.A. § 3710).

Under some circumstances, military personnel may seek compensation from the federal government for injury or death that occurs during service under the FEDERAL TORT CLAIMS ACT (28 U.S.C.A. §§ 2675). The most notable exceptions under the act are claims that arise out of combat during time of war and claims that arise while the service member is in a country outside the United States. In addition, the Military Claims Act (10 U.S.C.A. § 2733) provides an administrative remedy for those who incur damage to, or loss of, property, personal injury, or death caused by a civilian employee or a member of the ARMED SERVICES. The Military Claims Act addresses injuries that are not covered by the Federal Tort Claims Act.

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