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2009 September - October

Immigration Issues Faced by U.S. Servicemembers

Challenges and Solutions

By Susan E. Timmons & Margaret D. Stock

Noncitizens who serve in the U.S. military face particular challenges in navigating immigration law on behalf of themselves and their family members. While most of the Immigration and Nationality Act applies equally to civilians and to military personnel, certain provisions affect only servicemembers, and less than honorable discharges can have severe immigration consequences. Noncitizen family members of servicemembers are entitled to certain protections under immigration laws, but the law’s inflexibility can undermine these protections and weaken the morale of servicemembers forced to worry about family separation.

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Advocating Benefits for Veterans

By Barton F. Stichman

The Veterans’ Judicial Review Act of 1988 and the Veterans Benefits, Health Care, and Information Technology Act of 2006 give veterans the right of judicial review of the U.S. Department of Veterans Affairs (VA) benefit decisions and the right to hire an attorney to represent them in VA actions—two rights long denied them. Advocates need to be knowledgeable about VA disability programs, the ins-and-outs of the VA adjudicatory system, and the resources for advocates to ensure that disabled veterans get the benefits they need and deserve.

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Employment Law and How the Uniformed Services Employment and Reemployment Rights Act Protects Servicemembers

By Aloysius F. Rohmeyer & Bruce D. Schrimpf

Employees who leave their jobs to work in the armed forces often cannot regain their jobs or retain benefits. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) protects such eligible servicemembers. The USERRA requires that the U.S. Department of Labor assist claimants. Also ready to assist are the Employer Support of the Guard and Reserve, the Reserve Officers Association, and the local staff judge advocate’s office.

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A Case for Federal Oversight of Military Sexual Harassment

By Rachel Natelson

Women in military service face epidemic levels of sexual harassment and assault. U.S. Department of Defense policy is to deal with these matters within the chain of command. While the U.S. Supreme Court has not spoken on the applicability to servicemembers of Title VII of the Civil Rights Act of 1964, a consensus has emerged among federal appellate courts that the Act does not protect uniformed personnel against discrimination. However, the appellate courts’ consensus arguably does not apply to sexual harassment as a form of disparate treatment in hiring and promotion.

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What Difference Does It Make if the Client Is a Veteran? None if You Don't Ask About Veteran Status

By Mary Ellen McCarthy

By asking a low-income or elderly legal aid client if the client is a veteran, dependent of a veteran, or survivor of a veteran, those who represent poor, elderly, and disabled persons may be able to identify monetary benefits and services from the U.S. Department of Veterans Affairs (VA), and these benefits may help resolve the client’s legal issues. An advocate need not be an expert in veterans law to identify VA benefits and refer a client to VA for assistance. A quick screening guide and descriptions of some monetary and health benefits help advocates ask the right questions and refer clients to resources.

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An Introduction to Legal Services and Protections for Military Personnel and Their Family Members

By Stephen T. Lynch

Clients who have a military connection often get more protection and benefits through laws that apply specifically to servicemembers. Most military legal assistance attorneys are well versed in the law—for example, the Servicemembers Civil Relief Act, the Uniformed Services Employment and Reemployment Rights Act, and the Uniformed Services Former Spouses Protection Act—as it relates to servicemembers. Legal practitioners should be aware of these and other laws that focus on servicemembers and seek help from military legal assistance attorneys if necessary.

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Helping Veterans Overcome Homelessness

By Rick Little & Stacy Garrick Zimmerman

Veterans are twice as likely as the general population to become chronically homeless. Many resources can help veterans improve their finances and access supportive housing so that they can have a place to live and can lead healthy, stable lives. Greater availability of two innovative legal programs—alternative sentencing statutes and veterans courts—would link at-risk veterans to life-saving treatment and lower their risk of homelessness.

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A Guide to Military Child Care

By Kelly Hruska

Child care is an essential component of military readiness. The U.S. Department of Defense operates hundreds of child development centers worldwide, with fees subsidized on a sliding scale, and has increased the number of spaces available. While demand for care in child development centers still exceeds supply, Defense Department programs help military families find and pay for child care in local communities.

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What the Fowlkes? How Fleeing-Felon Rules Apply to Veterans

By Dale A. Hauser III

Veterans otherwise eligible for disability benefits from the U.S. Department of Veterans Affairs (VA) sometimes run into the “fugitive-felon” rule, denying benefits to anyone who is fleeing to avoid prosecution or confinement and is the subject of a felony warrant. The rule mimics the fugitive-felon rule enforce by the Social Security Administration and, like that rule, ignores the statutory requirement of intent. Because of the VA appeals process, no body of case law rejects VA’s interpretation of the rule. However, a recent Board of Veterans Appeals decision may herald a change in direction.

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Using the Transitional Jobs Strategy to Help Chronically Unemployed Veterans

By John Bouman & Kalia Coleman

Iraq and Afghanistan war veterans have substantially higher rates of unemployment than the general population, and many of their employment barriers are rooted in their military experience. A “transitional jobs” strategy has helped other groups of people with employment barriers connect to the workforce and maintain stable employment; if the core elements are in place, the strategy offers the same promise for veterans. While no dedicated funding stream is yet in place, a variety of sources could be tapped to support transitional jobs for veterans.

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Appointment Practice Under the Servicemembers Civil Relief Act

The Duties of Court-Appointed Counsel

By Matthew T. Besmer

A deployed servicemember loses custody of his child in a court action in Virginia even though the court has appointed an attorney pursuant to the Servicemembers Civil Relief Act (SCRA) to represent his interests. The appointed attorney, unable to contact the servicemember at his stateside address, had withdrawn representation and advised the court to use its discretion in rendering judgment. Did the appointed attorney properly represent the servicemember? What duties do SCRA-appointed attorneys owe their clients? What should they do when contact is difficult or impossible? The SCRA and American Bar Association Model Rules of Professional Conduct guide attorneys’ proper scope of representation and duties.

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Five Tips that Pro Bono Attorneys Need to Know When a Servicemember Is a Party to a Family Law Case

By Duncan D. Aukland

Active-duty members of the armed forces are often able to receive free legal services from civilian military lawyers and judge advocates, but such services tend to be limited in scope and rarely involve in-court representation. Many servicemembers need to retain civilian counsel for civil matters, particularly domestic relations, although such counsel may not be aware of special concerns in representing military personnel. Five tips may help nonmilitary attorneys represent servicemembers better and avoid “traps for the unwary.”

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Issues Raised by Military Service in the Context of Family Law Cases

By Angela Anderson & Steve Berenson

When handling a family law case involving a party in the military, attorneys should know about pertinent rules that may be unfamiliar to the typical family law practitioner. These involve special rules for establishing jurisdiction and service of process to initiate a case; setting up custody, visitation, family support, and division of a military pension; and using the Servicemembers Civil Relief Act at any stage of a family law proceeding. With this knowledge, an attorney can both advocate better for a military client and know how to observe the special rights of a military party on the other side of a family law matter.

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Establishing a Successful Veterans Benefits Project

Two Perspectives

By John S. Anderson & Victor Geminiani

Legal aid programs are well positioned to deliver much-needed legal assistance to veterans in need of representation to secure U.S. Department of Veterans Affairs benefits. Creating a veterans advocacy project within a legal aid organization can be a great way to leverage resources to serve veterans optimally. Whether a program receives funding from the Legal Services Corporation or not, managers should keep in mind a number of special considerations when creating a veterans benefits project.

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Special Considerations When Representing Military Veteran Clients

By David Ackerly

Assisting disabled military veterans, who risked injury and death in the service of their country, in obtaining veterans benefits is an honor. Veterans benefit cases involve a slow campaign of paperwork against an intractable bureaucracy—the U.S. Department of Veterans Affairs (VA)—unaccustomed to lawyers representing clients. To succeed in veterans benefits practice, attorneys should learn the different language and culture of the military world and the ramifications of going to war. Although clients with PTSD (posttraumatic stress disorder) and traumatic brain injury can be very difficult, getting VA to approve their benefits is very rewarding.

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