July 22, 2021

Gillibrand Announces Historic Victories Included In Senate NDAA

Following Nearly Ten Years of Relentless Advocacy, Gillibrand’s Bipartisan Military Justice Improvement and Increasing Prevention Act Added to the Senate NDAA; Gillibrand Also Successfully Pushed To Include IRC Recommendations to Improve Climate for Sexual Assault Survivors, Expanded Access To Health Care and Mental Health Services, And Deadline for PFAS Testing at DoD Facilities

Today, U.S. Senator Kirsten Gillibrand, a senior member of the Senate Armed Services Committee and Chair of the Personnel Subcommittee, announced that several of her provisions were included in the Committee-passed National Defense Authorization Act (NDAA) for Fiscal Year 2022. As the leading advocate on military sexual assault reform in the Senate, Gillibrand successfully pushed for the inclusion of her bipartisan Military Justice Improvement and Increasing Prevention Act (MJIIPA). She also secured several provisions that would improve the quality of life of service members and their families, including an across-the-board pay increase for service members and civilian DoD employees, expanded access to health care and mental health services, and the implementation of IRC recommendations to improve the climate for sexual assault survivors in the military.

“Congress has a responsibility to make sure we provide our service members with greater flexibility, stability, and support - and today, we delivered,” said Senator Gillibrand, chair of the Senate Armed Services Personnel Subcommittee. “After nearly a decade of advocacy, I am grateful that this year’s National Defense Authorization Act contains the Military Justice Improvement and Increasing Prevention Act, which I introduced earlier this year, and which will move the prosecution of sexual assault and serious crimes from the chain of command to independent, trained, professional military prosecutors. In addition, I am proud to have fought for and successfully included several provisions in the FY22 NDAA that will give our service members, their spouses, and their children access to better child care, pay, and a military justice system worthy of their sacrifice. These monumental programs and provisions are now on their way to becoming law.”

Below is a description of Gillibrand’s provisions included in this year’s NDAA:

Amendments to Implement the Independent Review Commission (IRC) on Sexual Assault in the Military’s Recommendations on Prevention, Climate and Culture, and Victim Care and Support

  • Prevention of Sexual Assault and Harassment: This provision implements all of the IRC’s recommendations on the prevention of sexual assault in the military, including comprehensive, commonsense prevention policies to create a robust data-based prevention infrastructure in the military and National Guard to combat a permissive culture of sexual assault and harassment. Specifically, this provision establishes a dedicated primary prevention workforce and implements community-level prevention strategies unique to the environment of service members.
  • Changing Climate and Culture: This provision implements the Climate and Culture recommendations of the IRC, which would codify and direct the use of sexual harassment and assault metrics as a part of readiness tracking and reporting. It would also educate the force on sexual harassment and assault, use qualitative data to select and evaluate leaders being considered for command positions, and enforce the 2017 National Women, Peace, and Security (WPS) Act.
  • Victim Care and Support: According to the IRC, victims are less likely to come forward and report a case of sexual assault or harassment due to lack of support and fear of retaliation and mistreatment by the military community. This provision would professionalize and separate the Sexual Assault Response Coordinator Program from the chain of command. It would improve victim care infrastructure and support by expanding the victim care workforce and service options to meet the needs of all sexual assault and harassment survivors. It would implement the “No Wrong Door” approach to sexual harassment and domestic abuse, which is a systemic approach to providing health care and trauma response to ensure those seeking help are directed to the right resources and receive better, more consistent care. This provision will help foster an environment where victims feel comfortable coming forward and supported during recovery. 

Paid Parental Leave 

Senator Gillibrand supported Senator Duckworth in her fight to ensure that all service members are able to access paid parental leave that will lead to more stable, healthy military families and, ultimately, better retention, recruitment, and readiness. Increasing access to parental leave has proven to have long-term positive effects on the strength of both parent-child and spousal relationships. Currently, many service members only receive 2-3 weeks of parental leave, and foster parents do not receive any form of paid parental leave. This amendment authorizes up to 12 weeks of parental leave for all service members in the case of birth, adoption, or long-term foster placement of a child. This provision will allow service members to care for their families and take time for themselves during a critical adjustment period and will help them achieve long-term success, both professionally and personally.

Reporting on the Use of Non-Judicial Punishment

Currently, there is no service-wide tracking of the use of non-judicial punishment and the DoD is unable to provide widespread demographic data on its use by commanders. Without this information, Congress is unable to do its constitutionally mandated responsibility of oversight when data is not available. This amendment, which had bipartisan support, would require a statistical analysis of the demographic data of the accused, commander and victim as well as information on the offense, investigation and adjudication at court-martial.  

Pay Raise for Military Members

The Senate NDAA, supported by Senator Gillibrand, provides a 2.7% pay raise for service members and the DoD workforce.

Military Child Care

Along with Senator Duckworth, Senator Gillibrand pushed to include funding that will improve the quality and availability of child care services for service members and their families. The FY22 National Defense Authorization Act includes funding to encourage the military services to seek out creative solutions to solve child care availability challenges, including exploring options to create public-private partnerships to increase capacity and availability of quality child care for service members and their dependents and meet the real-life needs of military families. Service members can defer their parental leave to a later year if occupied with a professional circumstance that is deemed reasonable and appropriate. 

PFAS

Gillibrand successfully pushed to include critical per- and polyfluoroalkyl substances (PFAS) provisions in the final NDAA negotiations. Earlier this year, she introduced the Filthy Fifty Act, which would help expedite the testing, cleanup, removal, and remediation of PFAS at all U.S. military installations and State-owned National Guard facilities by setting testing and cleanup deadlines for PFAS remediation at the most contaminated DoD sites in the country. The bill establishes a list of “priority installations” with 50 bases in the U.S. that have among the highest detections of PFAS. The FY22 NDAA included three provisions modeled after this important piece of legislation, including a provision to establish a two-year deadline for the DoD to complete testing for PFAS at all currently identified military installations and National Guard facilities. Gillibrand also secured a provision that requires the DoD to submit a report to Congress with the status of efforts to remediate PFAS at 50 priority installations, matching those listed in the Filthy Fifty Act, that are among the most contaminated with PFAS. The final provision establishes a schedule with proposed deadlines to complete PFAS remediation at all military bases, National Guard facilities, and formerly used defense sites that have been identified as having a PFAS release related to DoD activities.

U.S-Israel Cooperative Missile Defense

Senator Gillibrand secured $500,000,000 in the Senate text for U.S.-Israel cooperative missile defense programs, which will assist in the development of short, medium, and long-range missile defense systems to protect Israeli citizens. This funding is in line with the 2016 Memorandum of Understanding that includes funding for the Iron Dome, David’s Sling and Arrow programs. 

Assessment and Treatment of Traumatic Brain Injury or Havana Syndrome

Havana Syndrome is the term given to the anomalous health conditions that were first experienced by the U.S. Embassy staff in Havana, Cuba in 2016. Gillibrand secured $30 million for the Defense Health Program to improve the understanding and treatment of Havana Syndrome. This funding and language would provide any U.S. government employee and their family members experiencing symptoms access to the National Intrepid Center of Excellence at Walter Reed National Military Medical Center for assessment in a timely manner. 

Military Health Care

The bill authorizes coverage of preconception and prenatal carrier screening tests for certain medical conditions under the TRICARE program. It also directs the Secretary of Defense to report to Congress on the increase of TRICARE co-pays for Group A beneficiaries. The increased co-pays have resulted in higher costs for service members seeking mental health care and speech, physical, and occupational therapy. Additionally, the DoD is expected to develop a plan to ensure that when beneficiaries are referred for mental health care they receive direct assistance in identifying appropriate mental health providers within the direct care system or TRICARE network.  A 2020 DoD IG report revealed barriers that have led to delays, and in some cases, the inability to receive coverage.

Digital Service Academy

Senator Gillibrand recognizes that the development of digital and technical talent is essential to our national security and innovation needs, and will only grow increasingly essential in the decades to come. To that end, she secured language directing the Secretary of Defense to assess the Department of Defense’s cyber and information operation requirements that includes an assessment of developing a National Cyber Academy to train military and civilian personnel.

Military Justice

Senator Gillibrand is the lead advocate in the Senate for improving the military justice system. Her bipartisan legislation, the Military Justice Improvement and Increasing Prevention Act (MJIIPA), would move the prosecution of sexual assault and serious crimes from the chain of command to independent, trained, professional military prosecutors. MJIIPA was included in this year’s NDAA, along with several amendments based on recommendations offered by the Independent Review Commission. Along with these reforms, several of Senator Gillibrand’s military justice provisions were also included in the bill, including the following:

  • Creates an exception to the Privacy Act to allow victims of crimes to receive information on the administrative adjudication of their case. 
  • Authorizes the Department of Defense Safe Helpline to receive sexual assault reports in both unrestricted and restricted forms, and to provide support to victims making such reports. 
  • Requires the Secretary of Defense to designate an office to track allegations of retaliation by victims of sexual assault or sexual harassment.
  • Requires the Secretary of Defense to include information on race and ethnicity of victims and accused to the maximum extent practicable in the annual Sexual Assault Prevention and Response Office (SAPRO) Report. This allows for the exclusion of such information, if necessary, based on privacy concerns, impacts on accountability efforts, or other matters of importance, as determined by the Secretary of Defense.
  • Directs the Secretary of Defense to conduct a legal review to determine the constitutionality of UCMJ Article 52 in light of the Supreme Court decision in Ramos v. Louisiana, holding that the Sixth Amendment to the U.S. Constitution requires unanimous verdicts for criminal convictions in State criminal trials. Article 52 of the UCMJ only requires concurrence of three-fourths of the members present to convict an accused person on a non-capital offense.

Burn Pits

Throughout the preceding decades of deployments, more than three million service members have been exposed to toxins due to the widespread use of burn pits in deployed environments, with many subsequently developing cancers and respiratory diseases. The cause of these illnesses goes unrecognized because doctors fail to connect the toxic exposure with their symptoms. This provision will require Department of Defense doctors to be trained on the signs of toxic exposure in order to receive the appropriate treatment and coverage for these service-connected injuries.

Civilian Access to Special Victim Prosecutors

Victim attorneys have become an invaluable part of the military justice system and ensure the survivors have a trusted guide through every stage of the process, from report through appeals, and cannot be denied this valuable service. Under this provision, Special Victim Counsel and Victims’ Legal Counsel are now authorized to provide victim services to all civilian victims of alleged sex-related offenses committed by a member of the military. Civilian victims are much less likely to see their case adjudicated and would benefit greatly from legal representation throughout the process. 

Sexual Assault Response Coordinator (SARC) Military Occupational Specialty (MOS)

In response to the Fort Hood Independent Review Committee, this provision tasks the Department of Defense with evaluating options for establishing a Sexual Assault Response Coordinator (SARC) military operational specialty (MOS) and reporting its findings and recommendations to Congress.  

Equality in the Selective Service

Senator Gillibrand advocated for the modernization of the Selective Service System to include all persons instead of only males, based on the recommendation of the congressionally-mandated National Commission on Military, National, and Public Service in their Inspired to Serve report. This provision will amend the Selective Service Act to require women to register for selective service. This will ensure gender equality for selective service by having men and women share the responsibility of defense of the United States.