Dishonoring Military Families: The Legal Anatomy of Betrayal

by David French

The secretary of defense is picking and choosing which benefits to provide to the military. Here’s how:

First, the Pay Our Military Act, passed just before the shutdown, appropriates “such sums as are necessary to provide pay and allowances to members of the Armed Forces.” Military pay is a bit different from civilian compensation, which is generally broken down into two categories: salary and benefits. In the military’s overly-complex system, there exists base pay, a dizzying array of “allowances” (such as family separation allowance, Basic Allowance for Subsistence (BAS), Basic Allowance for Housing (BAH), etc.) that can dramatically increase take-home pay, and an array of benefits that accrue to service members and their families, including heavily subsidized life insurance (“SGLI”), health insurance (TriCare), and access to various death benefits that help pay for funerals and for travel for surviving family members.

Second, because the Pay Our Military Act did not provide a specific appropriation for “benefits,” it was left ambiguous enough that the Department of Defense has room to interpret the terms “pay and allowances” to include certain benefits while excluding others. For example, military families are still receiving the bulk of their TriCare health-insurance benefits and beneficiaries are still receiving SGLI life-insurance payments. These sums, by the way, are much larger than the death benefits at issue with the families of those who recently fell in Afghanistan. It’s hard to discern the legal logic behind these payment choices. 

Thus, through a rather simple, good-faith drafting error, Congress gave the secretary of defense room to maneuver on the delivery of benefits to military families, and the Department of Defense’s civilian masters have made an incredible choice, one that no line unit in the military would ever make if it had control over funding for its own soldiers and their families: to exclude death benefits from the “pay and allowances” appropriated by Congress. There are two simple fixes. The simplest is for the Department of Defense to interpret the statute consistent with Congress’s intent and fund military benefits. The second is to pass a new statute correcting any ambiguity in the Pay Our Military Act. If the DOD doesn’t act, the House will, and surely the Senate will follow. Or will you, Senator Reid?

Finally, regarding the news that contracted Catholic priests are barred from ministering to soldiers during the shutdown? Well, that’s also the secretary of defense’s call. The Pay Our Military Act did clearly provide appropriations for “contractors of the Department of Defense” whom the “Secretary concerned determines are providing support to members of the Armed Forces.” In other words, appropriations exist for these chaplains, but they’re not even permitted to volunteer. Inexcusable.

For nine days, the civilian federal bureaucracy has broken faith with the American people, working to maximize suffering to exert leverage in a political battle when they are law- and honor-bound not only to remain neutral but to exert their utmost efforts to accomplish their mission in spite of funding limitations. The stain of their misconduct will not be easily cleansed.

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