Fighting the War for Talent in the JAG Corps, Part 2: “Flexing” and DEI in Officer Retention

Retaining top talent in the JAG Corps has been challenging, especially with the emphasis on flexible workplace accommodations by the private legal sector. As an example, data shows that women officers are more likely to exit active duty at the ten- to 12-year mark than their male counterparts because they prioritize family over career more often than men. Many legal practitioners and litigators, while vastly qualified for many jobs across the JAG Corps, do not want to continue service or be considered for certain jobs because it places too much strain on them and/or their family. This is particularly true for women (who bear the burden of childbearing and child-rearing), single parents, and other minority groups that place great value on multi-generational living.

For example, currently, the Navy, Coast Guard, and Air Force centralize certain practice areas in a handful of “hub” locations worldwide, requiring JAG officers to move to these locations to fill those jobs. This requires uprooting the family unit and moving to an unknown area with potentially little to no support.

How will the JAG Corps be able to compete with the private sector to retain talent and meet its strategic diversity, equity, and inclusion (DEI) goals if it is not fostering an environment that balances mission accomplishment with the work/life integration necessary as officers move through the stages of their lives? The simple answer is it cannot. Incorporating as a matter of practice and culture the ability to leverage and execute flexible workplace accommodations is but one small step to bridging the retention gap and furthering DEI goals.

Retention Woes: Development and Utilization of an Exit Survey

A tool to collect the data associated with the early exit of JAGs and paralegals is needed to implement DEI-informed talent management strategies. One such tool is an exit survey to gather data on who and why people leave at various points in their careers. The private sector routinely utilizes standardized exit surveys to identify problems or issues that may be impacting retention. Employers can also use the information gathered from such surveys to help with recruitment.

To allow legal professionals to exit an organization without asking them why is leaving valuable information on the table. If the JAG Corps intends to implement data-informed talent management strategies, it must implement a method by which it can gather this information and then use the collected data to inform retention strategies. Without such strategies, leaders will be left in the dark about why people leave, preventing the organization from making progress in retaining the talent necessary to build the JAG Corps of the future and develop the next generation of JAG Corps leadership that fully realizes DEI goals.

The JAG Corps must consider this data and what it means for our all-volunteer Corps. In the next 20 years, the JAG Corps will be recruiting from “Generation Alpha” (those born between 2010 and 2025) and seeking to retain “Gen Z” (those born between 1996 and 2010) as they approach their career midpoints. The talent pool will expect to serve in a workforce that values and embraces diversity, equity, and inclusion, along with innovation and flexibility. Having flexible workplace accommodations is but one tool that can help shape the future of each JAG Corps, bolster retention strategies, and increase the joint lethality of our military.

Survey Data

An unofficial poll of recently separated Air Force JAGs conducted by the undersigned authors in spring 2023 identified frequent relocations and competitiveness with the private sector as major factors contributing to their decision to leave active duty. JAGs who separated due to frequent moves included married JAGs, JAGs with children, and single JAGs. The impact of JAG service on spouses’ careers, as well as the stress of finding childcare with each permanent change of station (PCS), were specifically mentioned, as was the need to recreate a support system for single JAGs. Lack of childcare availability and military spouse under- and unemployment are top issues impacting retention across the military and have led to several Department of Defense initiatives.

Competitiveness with the private sector was also a significant factor impacting retention. The private sector offers higher compensation, better technology, as well as more choice in health care. Allowing JAGs to stay in one location but utilize a flexible workplace accommodation would allow for career progression while also providing the necessary support that is currently lacking for JAGs regardless of their number of dependents. This would also ensure continuity of health care for the servicemember and their family while saving the family money. A recent Blue Star Family survey found that nearly 85 percent of military families said they had out-of-pocket expenses with every PCS; of that 85 percent, 60 percent said those expenses totaled more than $1,000. Reducing the number of PCSs would also save the Department of Defense money, which is crucial given that the PCS budget across the services was slashed for Fiscal Year 2023, and continued cuts are anticipated. When the private sector offers higher pay, better technology, as well as stability for lawyers and their families, it is not surprising that the private sector is a direct threat to JAG Corps retention goals.

Practical Examples of Leveraging Flexible Workplace Policies

To incentivize legal professionals to consider extending their service by taking jobs in some of the most critical legal areas, such as military justice and litigation, the JAG Corps should allow them to live and work in any location within one hour of a military base and a major airport in the United States. This would allow them the flexibility to move their family to a location with more support during their absences and provide access to the services required at a military installation, such as personnel and medical support. This option is conceptualized in the Department of the Air Force’s Telework and Remote Work Guide, which contemplates the establishment of operating locations (OLAs). This incentive could be used to retain top litigation talent but also strikes the balance of meeting the familial needs of the service member and their dependents. It is a win-win.

Critics would counter that establishing OLAs is an administrative burden to the JAG Corps and the military as a whole. This is a legitimate concern because innovative uses of flexible workplace accommodations are not commonplace in the services (yet), and many of the legacy personnel systems are not designed to handle such administrative changes. However, a one-time investment of resources in upgrading those systems (or creating a single system for the entire Department of Defense instead of multiple service-specific systems) and making this incentive commonplace will pay dividends for the JAG Corps and the Department of Defense.

The JAG Corps would also be able to use flexible workplace accommodations to meet the needs of its personnel by strategically managing talent based on the “whole person” concept. This is particularly important in the assignments for dual-military couples and military-career spouse couples, as well as servicemembers whose families qualify for the Exceptional Family Member Program (EFMP; this program covers families that include members with special needs). While the JAG Corps has made progress in considering the impacts of an assignment on a servicemember and his or her family, this would be the next step in normalizing assignment decisions based on the family unit. For example, if one spouse in a dual-military couple has an opportunity for a selective role in Texas, but the other spouse only has the opportunity for a job in the National Capitol Region (Washington, D.C.), the JAG Corps could implement a remote work arrangement to ensure both servicemembers can meet career field manning and career progression requirements. This also addresses issues recently identified by a Department of Defense Inspector General Report that indicated that more can be done to support dual-military couples.

Another example would be a JAG or paralegal who is married to a civilian with a career that is tethered to a professional licensure (such as an attorney’s admission to a state bar), making it difficult to move every two years to a new state and maintain dual careers. This JAG could be allowed to utilize a flexible workplace accommodation to live/work from the location of the spouse but make monthly trips to the assignment location to execute any in-person requirements. This would, in fact, likely be cheaper than moving the entire family to a duty location every two to three years. These flexibilities could incentivize a person or family to continue service in the JAG Corps, even if it is not an arrangement that is suitable for every assignment.

There will be give and take on both ends. There will be situations in which the JAG Corps will need to make unfavorable asks of a family—but these should be the exception, not the rule. The best thing about flexible workplace accommodations is that they are tailored to individual servicemembers, their family, and the needs of the mission they are supporting. Success would not be measured by the amount of time spent sitting behind a desk but instead by the individual’s ability to meet mission needs and maintain performance levels.

The Navy Judge Advocate Corps is leading the way in exploring the benefits of flexible workplace accommodations. It is already piloting a program that allows JAGs to apply for “location negotiable” positions as a retention incentive and talent management strategy. There is no reason the other services should not follow the example of the Navy JAG Corps and at least pilot such a program. Each service’s JAG Corps has an opportunity to lead the way and move beyond how it is accustomed to doing business and be the model for the next iteration of talent management in the military.

Options such as those described above would greatly improve the experiences and reduce the hurdles faced by all JAGs across the JAG Corps, but more particularly, would increase the likelihood of retention of women and members of other minority groups. By fostering an environment of inclusivity, JAGs will feel more supported by the organization and, thus, more likely to stay. Other than pay inequity, all the concerns raised in the unofficial poll noted above can be addressed by the JAG Corps. The importance of diversity of thought (not just demographic diversity but also diversity of background) at the senior ranks of the military is well supported by data, so the JAG Corps must consider this diversity as part of its talent management strategies. Despite the great strides made during the past decade, the prevalence of women and other minorities in top JAG Corps leadership positions is still the exception rather than the rule. It is important to keep pursuing creative solutions to continue the forward progress. Incorporating flexible workplace accommodations as a matter of policy would do just that.

Conclusion

The retention hurdles currently being faced in the JAG Corps, particularly for women and minorities, is a national security imperative. It would be irresponsible for the JAG Corps not to consider exploring flexible workplace accommodation to retain talent and meet strategic diversity, equity, and inclusion goals. The JAG Corps needs the best and brightest legal minds and diversity of thought, background, and experience because the future of legal services and the issues the Department of Defense will face in the future will be some of the most complex and challenging in its history. As the national security strategy shifts from counterterrorism to integrated deterrence and great power competition, the JAG Corps must ensure it is providing the best legal services to its clients as they navigate these novel challenges. Further, the JAG Corps must ensure the success of the newly created Office of Special Trial Counsel, a congressionally mandated division of independent military prosecutors that investigates and litigates certain offenses independent of the chain of command. This means retaining the talent necessary to safeguard the mission and the successful administration of military justice by incentivizing top talent to stay in the Corps.