The SCRA provides many powerful legal rights to active-duty servicemembers and their families that are not available to any other group. It is important that you understand how this law works so that you and your family can take advantage of this law.
Simply put, the purpose of the Servicemembers Civil Relief Act (SCRA) is to ensure that servicemembers can focus on accomplishing their mission. They can do that best when they know that their families are not being evicted from their homes, that their property isn’t being repossessed, that their stored goods can’t be sold, and that court judgments won’t be entered against them, unless a judge determines that those actions are in compliance with SCRA safeguards.
No. Often under the act, the servicemember must be able to assert that his or her ability to fulfill a legal responsibility (for example, making the payments on the mortgage), has been “materially affected by (your) military service.”
This ordinarily, but not always, means that the servicemember and his or her family has less overall income after entering military service than he or she did in civilian life either before enlisting or being called to active duty. Material effect can include greater expense associated with maintaining multiple households as well as earning less income. However, this doesn’t mean that you must be impacted financially in order for the SCRA to apply. When judges are deciding whether or not the SCRA applies, they are encouraged to look at the entire impact of military duty, and when there is a material effect from that duty, should rule in favor of applying the SCRA protections.
Making a case of “material effect” in any situation involving the SCRA involves interpretation of the law. You are strongly encouraged to meet with a military legal assistance attorney to discuss whether the SCRA applies to you.
The SCRA protects:
- All full-time active duty personnel from all branches of the Armed Forces and commissioned officers of the Public Health Service or the National Oceanic and Atmospheric Administration while on active service.
- All Reserve personnel (Army, Navy, Marine Corps, Air Force, and Coast Guard) when on active duty.
- Members of the Army National Guard and the Air National Guard only:
- when they are called to active duty or duty under 32 USC 502(f) by the President or Secretary of Defense,
- for the purpose of responding to a national emergency declared by the President,
- for a period of more than thirty days in a row.
- A servicemember’s dependents (including spouse, children, and anyone the servicemember has been providing at least one-half of the support for during the 180 days before applying for SCRA protections).
A Reservist’s two-week annual tour will count as “active duty” under the SCRA, but weekend drills or inactive duty for training will not.
No. Nothing in the SCRA limits it to only those servicemembers who have been involuntarily called to duty. It applies to all servicemembers on active duty.
Yes. Though there are many protections for servicemembers available under the act, there are some instances where the servicemember must first be able to assert that his or her ability to fulfill a legal responsibility (for example, making the payments on your mortgage), has been "materially affected by military service" before the SCRA protections are available.
No. The SCRA applies regardless of duty location.
The protections of the SCRA apply from the date a servicemember receives the “mobilization order”—the order calling him or her to active duty. There is traditionally a period between receipt of the mobilization order and the order’s report date to allow mobilized servicemembers to get their affairs in order. Even though a servicemember may not be in a paid status or have reported for duty, SCRA protections apply during this period.
I signed a lease before I got called up for active duty. Will the SCRA still provide me some protections?
Yes. Once you are on active duty, any preservice obligations are subject to the protections of the SCRA. Your creditor (e.g., your landlord or auto dealership) or your lease agreement might say differently, but creditors are often unsophisticated on these matters, particularly if they are not located in a community with a military presence. Your SCRA protections cannot be contracted away or waived except in certain circumstances. You should always first meet with a military legal assistance attorney to find out whether the SCRA applies to your situation, and whether your state may have similar protections, such as for residential lease agreements.
You are entitled to waive your SCRA rights under certain circumstances. Your waiver must be made in writing and must meet certain requirements as to form. Before signing a waiver of your SCRA rights, you are strongly encouraged to consult a military legal assistance attorney or private attorney for advice. See Working with a Lawyer for more information on how to get an appointment for free legal help from a legal assistance attorney, who can advise you fully on your rights.
Does the SCRA apply to criminal cases? Can I prevent my DUI case from moving forward when I am on active duty?
No. The SCRA does not apply to criminal cases, only civil cases. Civil cases are those in which one individual or business sues another to protect, enforce, or address private or civil rights. Examples of civil cases, which also commonly involve the SCRA, include suits dealing with creditors, landlord-tenant disputes, and family legal situations, such as divorce, child custody, and support proceedings. The SCRA also applies to federal matters civil proceedings, such as bankruptcy.
No. Citizens who are working as contractors are not protected by the SCRA.
I am deployed to Afghanistan and I have given my mother, who lives in Michigan, a Power of Attorney. Can she assert my SCRA rights on my behalf?
Yes. Anyone to whom you have given a Power of Attorney can demand any and all protections available under the SCRA on your behalf. Also, if you have hired a lawyer to represent you in a civil matter, that lawyer can assert your SCRA rights in your absence. Under the SCRA, the court is required to appoint someone to represent your interests if you are on active duty and nobody else is available to represent your interests.