USERRA 5 year limit

[samwrightancientlawyer]

Thanks. Please tell your colleagues, those who are currently serving in the Reserve Components of the armed forces, to go to www.roa.org/lawcenter. One can find 1500 "Law Review" articles about USERRA and another 600 articles about other military-legal topics, along with a detailed subject index. The articles are available for free to everyone, not just ROA members.

Samuel F. Wright

 

[FLGUY]

Thanks. Please tell your colleagues, those who are currently serving in the Reserve Components of the armed forces, to go to www.roa.org/lawcenter. One can find 1500 "Law Review" articles about USERRA and another 600 articles about other military-legal topics, along with a detailed subject index. The articles are available for free to everyone, not just ROA members.

Samuel F. Wright

If someone incurs obligated service due to a retention bonus, special program, etc is that considered “exempt”? Kind of a weird situation, but things like the Career Intermission Program, or picking up FTS/TAR after being a SELRES?

 

[samwrightancientlawyer]

Service to complete the INITIAL active service obligation is exempt from the computation of the 5-year limit. For example, Joe Smith enlisted in the Navy and chose nuclear power. He left his job at XYZ Corp and served on active duty for exactly 6 years, which was his obligated period of service because he chose the nuclear power option. Joe left active duty at the 6-year point and made a timely application for reemployment. Joe has the right to reemployment because the period beyond 5 years was necessary to complete his INITIAL period of obligated service. This assumes, of course, that Joe meets the other requirements of USERRA.

Bob Jones enlisted in the Navy, and his initial obligation was to remain on active duty for 4 years. Three years into his active duty, he took a Navy school and incurred an additional obligation of 3 more years. Bob left active duty at the 7-year point and applied for reemployment. Bob does not have the right to reemployment because the additional commitment that put him over the 5-year limit was not his INITIAL active service obligation.

Please read my Law Review 16043 (May 2016). Go to www.roa.org/lawcenter. Then click on "numerical index" then "2016 articles." You will find the 2016 articles in numerical order (chronological order). Law Review 16043 goes into great detail about what counts and what does not count in exhausting an individual's 5-year limit with a specific employer. I have a new article about the 5-year limit and that article will be published in July.

If this is a real-life example for you or someone you know, please send me an email at samwright50@yahoo.com.

 

[johnpauljones1776]

Hi sir @samwrightancientlawyer,

I realize this is a different subject than what the thread is for but with regards to terminating a lease with military orders to report to officer candidate school, am I required to provide 30 days notice or be subject to penalties? My apartment complex is wanting me to pay a whole months rent after I provide them orders which I do not have in hand yet and won’t until the week of supposedly.

Thank you kindly,

-not the real John Paul Jones

 

[insanebikerboy]

Hi sir @samwrightancientlawyer,

I realize this is a different subject than what the thread is for but with regards to terminating a lease with military orders to report to officer candidate school, am I required to provide 30 days notice or be subject to penalties? My apartment complex is wanting me to pay a whole months rent after I provide them orders which I do not have in hand yet and won’t until the week of supposedly.

Thank you kindly,

-not the real John Paul Jones

I can answer this one. The Servicemember Civil Relief Act covers this. You can literally break a lease the same day you get orders, as long as it meets the rules set forth in the SCRA. You getting orders counts. You are required to provide them notice in writing and include a copy of your orders.

However, the 30 day notice gets misunderstood. Under SCRA, your lease ends 30 days after the next rent payment comes due. So, if you got orders and give notice on 15 Mar, the lease ends 30 Apr. That means you are responsible for that 1 Apr rent, even if you don’t live there anymore.

That said, I have known people who have had their leases canceled/prorated to 30 days after proper notice, and I have known people who have been held to the letter of the law. It’s totally up to your landlord. The landlord can be more lenient than the SCRA, but they can’t be more restrictive. That means any clause included in the lease that violates the SCRA is invalid, regardless of what was signed.

 

[samwrightancientlawyer]

Yes, "insane biker boy" has it right. Here is the pertinent statutory language: "In the case of a lease described in subsection (b) that provides for monthly payment of rent, termination of the lease under subsection (a) is effective 30 days after the first date on which the rental payment is due and payable after the date on which the notice under subsection (a) is delivered."

Title 50, United States Code, section 3955(d)(1).

For example, if you give the notice to the landlord on 4/15/2023, the lease is terminated effective 5/31/2023, 30 days after the next date (5/1/2023) when the monthly rent is due. Of course, the landlord can always do more than the law requires and can choose to waive the May 1 rent due.

Under section 3955, a person entering active duty, voluntarily or involuntarily, is also entitled to terminate a vehicle lease. The right to terminate a residential lease also applies to a service member who is already on active duty and who receives PCS orders to a distant location.

In our "Law Review" column, we cover the Servicemembers Civil Relief Act (SCRA), as well as the Uniformed Services Employment and Reemployment Rights Act ( USERRA) and other laws that are especially pertinent to those who serve in uniform. Please see Law Review 23001 (January 2023) for a detailed discussion of the rights of a person entering active duty under the SCRA and USERRA.

Go to www.roa.org/lawcenter. Click on "numerical index" then "2023 articles." The 2023 articles appear in reverse chronological order, so 23001 is at the bottom of the list.

At our "Law Review" site we have more than 2,000 articles about military-legal topics, along with a detailed subject index, to facilitate finding articles about specific topics. The Law Review Library is available for free to everyone, not just members of the Reserve Organization of America (ROA). In the last two years, I have recruited three understudies--judge advocates who are young enough to be my grandchildren--to carry on this work after I am gone. But for now, I am cranking out new articles each month. For individual consultation, send me an e-mail at samwright50@yahoo.com.

Respectfully,


Samuel F. Wright
Captain, JAGC, USN (Ret.)

 

[johnpauljones1776]

I can answer this one.

Yes, "insane biker boy" has it right.

Thank you both! However what if I did give them 30 days notice but I didn’t have my orders? Does that make me responsible for rent the following month’s rent after I give them my orders?

 

[FormerRecruitingGuru]

Thank you both! However what if I did give them 30 days notice but I didn’t have my orders? Does that make me responsible for rent the following month’s rent after I give them my orders?

Can’t your recruiter send you a screenshot of your ship date or a redacted PROREC list?

 

[johnpauljones1776]

Can’t your recruiter send you a screenshot of your ship date or a redacted PROREC list?

Yes I have that but the apartment is saying they need the orders. Am I correct in assuming the apartment is wrong and all I need todo is give them 30 days notices and eventually give them my orders when I get them?

 

[insanebikerboy]

Yes I have that but the apartment is saying they need the orders. Am I correct in assuming the apartment is wrong and all I need todo is give them 30 days notices and eventually give them my orders when I get them?

No, you are required to provide them the orders, along with written notice. The amount of notice you give them is irrelevant, it’s how long you are obligated for rent.

For example, you could get your orders today, inform the landlord, and move out tomorrow. Per the SCRA, you would be obligated for the full rent payment on 1 May. You don’t have to physically occupy the property during May, but you still have to pay rent for that time. Your landlord can prorate the rent if they so choose but they can also legally ask for the full May rent.

If you simply give them 30 days notice and move out without providing orders, the apartment can pursue recouping the lost rent from you. Depending on what state you live in, and what cancellation clauses are in your lease, that could mean all of the unpaid rent for the remaining duration of your lease.

As was mentioned, you could ask if they’d accept notice/screenshot of your ship date, but that’s not actually official orders so they don’t have to accept that. Bottom line, it sounds like your apartment understands the SCRA and is sticking to the rules so to protect yourself financially I’d recommend not moving out until you can provide actual orders.

 

[samwrightancientlawyer]

Yes I have that but the apartment is saying they need the orders. Am I correct in assuming the apartment is wrong and all I need todo is give them 30 days notices and eventually give them my orders when I get them?

I just checked the text of section 3955 of title 50 of the United States Code. The pertinent language is: "Termination of a lease under subsection (a) [lease of premises, like an apartment] is made--by delivery by the lessee [tenant] of written notice of such termination, AND A COPY OF THE SERVICEMEMBER'S MILITARY ORDERS, to the lessor..." 50 U.S.C. 3955(c)(1)(A) (EMPHASIS SUPPLIED).

So, this is a problem. The Recruiting Command should do a better job of getting orders out to recruits in a timely manner. Perhaps we can argue that you have "substantially complied" with the requirement to provide the landlord evidence of your ship date. I will research further. Please send me an e-mail at samwright50@yahoo.com.

R,

Samuel F. Wright
Captain, JAGC, USN (Ret.)

 

[samwrightancientlawyer]

I just checked the text of section 3955 of title 50 of the United States Code. The pertinent language is: "Termination of a lease under subsection (a) [lease of premises, like an apartment] is made--by delivery by the lessee [tenant] of written notice of such termination, AND A COPY OF THE SERVICEMEMBER'S MILITARY ORDERS, to the lessor..." 50 U.S.C. 3955(c)(1)(A) (EMPHASIS SUPPLIED).

So, this is a problem. The Recruiting Command should do a better job of getting orders out to recruits in a timely manner. Perhaps we can argue that you have "substantially complied" with the requirement to provide the landlord evidence of your ship date. I will research further. Please send me an e-mail at samwright50@yahoo.com.

R,

Samuel F. Wright
Captain, JAGC, USN (Ret.)

Here is the solution. The Servicemembers Civil Relief Act (SCRA) defines several terms, including the term "military orders."

"The term 'military orders,' with respect to a servicemember, means official military orders (including orders for separation or retirement), or any notification, certification, or VERIFICATION FROM THE SERVICEMEMEMBER'S COMMANDING OFFICER, WITH RESPECT TO THE SERVICEMEMBER'S CURRENT OR FUTURE MILITARY DUTY STATUS." Section 3955(i)(1) of title 50, United States Code, EMPHASIS SUPPLIED.

You need to get the Commanding Officer of the Recruiting District to sign such a statement for you. I hope that the recruiting can put you in touch with his or her commanding officer.

Respectfully,


Samuel F. Wright
Captain, JAGC, USN (Ret.)