Who is protected by the Servicemembers Civil Relief Act?

Who is protected by the servicemembers civil relief act?Who is covered by the Servicemembers Civil Relief Act?  The United States Code (federal laws) identifies the protected people in the Servicemembers Civil Relief Act.  Active military members (including reservists, National Guardsmen, commissioned officers of the Public Health Service and of the National Oceanic and Atmospheric Administration who are in active federal service). Dependents of these people are eligible for some of the benefits of the Act.

“Active duty” for armed services is defined in 10 U.S.C. § 101(d)(1) as “fulltime duty in the active military service of the United States … [including] full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned.” “Active military service” is not further defined in Section 101 of Title 10, U.S. Code, although active service is given the meaning service on active duty or full-time National Guard duty in Section 101(d)(3).

Also, see FAQ on Call-Up to Active Duty for other relevant information.

Under the SCRA, persons on active duty and attending a service school are protected by the Servicemembers Civil Relief Act, while persons attending training prior to entering active duty, such as officer candidates, may not be covered.

It is unclear, for example, whether “active military service” under 10 U.S.C. § 101(d) covers training as a member of the Reserve Officer Training Corps or attendance at a military academy.

Dependents who seek protection, usually have to apply to a court for those protections.  “Dependent” is defined as a servicemember’s spouse or child (as defined for purposes of veterans benefits, in 38 U.S.C. Section 101, or another individual for whom the servicemember provided more than one half of the support in the 180 days prior to an application for relief under the act. This language appears to codify courts’ treatment of the term “dependent” as relating to financial dependency rather than strict familial relationships. 38 U.S.C. Section 101(4) defines child as a person who is unmarried and under the age of eighteen; who before attaining the age of eighteen became permanently incapable of self-support; or who after attaining the age of eighteen and until completion of education or training (but not after attaining the age of twenty-three) is pursuing a course of instruction at an approved educational institution; and who is a legitimate child, a legally adopted child, a stepchild who is a member of a veteran’s household or was a member at the time of the veteran’s death, or an illegitimate child but, as to the alleged father, only if acknowledged in writing signed by him, or if he has been judicially ordered to contribute to the child’s support or has been, before his death, judicially decreed the father of such child, or if he is otherwise shown by evidence to be the father of the said child.

“Military Service” is defined in the Servicemembers Civil Relief Act at 50 U.S.C. Sec. 511 as follows:

(2) Military service

The term “military service” means—
(A) in the case of a servicemember who is a member of the Army, Navy, Air Force, Marine Corps, or Coast Guard—

(i) active duty, as defined in section 101(d)(1) of title 10, United States Code [see above], and
(ii) in the case of a member of the National Guard, includes service under a call to active service authorized by the President or the Secretary of Defense for a period of more than 30 consecutive days under        section 502(f) of title 32, United States Code, for purposes of responding to a national emergency declared by the President and supported by Federal funds (note that the DMDC does not report periods of service that are less than 30 days in duration);

(B) in the case of a servicemember who is a commissioned officer of the Public Health Service or the National Oceanic and Atmospheric Administration, active service; and

(C) any period during which a servicemember is absent from duty on account of sickness, wounds, leave, or other lawful cause.

“Military service” is mentioned in 10 U.S.C. § 101(d)(1), but not actually defined in that Title.

Note that some protections extend for a period of time AFTER active military duty (i.e. the 6% interest rate cap and proscriptions against foreclosure extend after the Active Duty End Date).

Before courts will enter judgments, plaintiffs will need to order an active duty verification, and usually submit an affidavit of military service attesting to the results of that verification.

Attorney Roy Kaufmann serves as the Director of the Servicemembers Civil Relief Act Centralized Verification Service, located in Washington, D.C. As a recognized authority on the Servicemembers Civil Relief Act, Mr. Kaufmann has published hundreds of articles and hosted many webinars. His teachings help law firms and businesses to remain compliant with the SCRA rules and regulations so as to avoid costly fines.

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