Lack of understanding, record leads to injustice for soldier

By Sean McCarthy

Just after Christmas, the First District Court of Appeals in Ohio overturned a decision by a trial court that had awarded lost benefits to Scott Miller, a local police officer and a staff sergeant in the Ohio Army National Guard. Mr. Miller was called to duty in October 2001 in the wake of the September 11th attacks, and was released from duty on September 11, 2002.  He was again called to colors on February 7, 2003, and was finally released on March 1, 2004. That’s a grand total of almost two years.

Eventually, Mr. Miller realized that he was entitled to lost pay from his job as a police officer- every year, public sector employees like police officers are given a limited number of paid leave days to fulfill military obligations. Mr. Miller was entitled to those days of paid leave, and applied, only to be informed that his application was late- he needed to have applied within six years of the lost days. He went to see a lawyer.

The Servicemember’s Civil Relief Act provided an answer- the time that he spent in uniform could not be counted against the six year limit. The SCRA, the most recent version of a body of law dating back to before World War II, allows servicemembers like Mr. Miller certain protections so that they aren’t unjustly penalized when called to service. When Miller’s lawyers pointed that out to the trial court, the judge agreed, and ordered the municipality to pay Mr. Miller for the lost leave time.

Bur the Court of Appeals, in reviewing the case, chose to ignore documents that Mr. Miller had relied on in his pleadings demonstrating that his service had been “active duty;” that is, that Miller had been in the service of the U.S. Army during those two years, rather than the Ohio National Guard. That was a big decision on the part of the Court.

By ignoring the character of Mr. Miller’s service, the Court then felt free to mischaracterize the protection that the SCRA offers servicemembers. It said that Mr. Miller wasn’t protected because this wasn’t “active duty,” it was instead “full-time National Guard service.” The Court was plainly incorrect in this statement.

“Full time National Guard” status, as used in the Army and the Air Force, refers to time spent in uniformed service to that state- for example, members of the National Guard may be called to deal with natural disasters such as floods, blizzards, or forest fires. When called in that status, the servicemember is at the command of the Governor of a state, and is ordinarily paid by the state government. The service is almost always counted in days, rather than months. They may be wearing an Army uniform, but they are subject to different laws and different requirements. The SCRA wasn’t designed to protect servicemembers in that situation.

It was designed to protect servicemembers, like Mr. Miller, who ordinarily work as civilians, and only take up colors when they are called to serve. For people like Mr. Miller (and, I have to confess, like me), military service is not a burden, but service away from home may make it difficult or even impossible to fulfill ordinary obligations. The SCRA says that the clock stops when we are called away, and starts right back up again when we return.

In this case, Mr. Miller should have been able to demonstrate that the time he spent away was “active duty” service for the purposes of the SCRA. In pleadings before the trial court, he relied on the paperwork that servicemembers receive when they complete a period of active duty (the DD 214). By ignoring those documents, and by misinterpreting the SCRA, the Court made a ruling that ignored Mr. Miller’s service, and denied him the protection he deserved.