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Conference on NDAA Completed

With less than two weeks left in the 112th Congress, the House and Senate Armed Services Committees completed their conference on the Fiscal Year 2013 National Defense Authorization Act (NDAA). Once the conference legislation is passed by both chambers, this will be the 52nd consecutive year Congress has passed a Defense authorization bill. The full conference report is expected to be filed this week. Some details were released by the committees and those that are important to The American Legion follow:

TRICARE fee increases – One issue that drew a veto threat from the President was his request Congress increase TRICARE premiums and other fees for retired servicemembers. The conference report "rejects" those Administration proposals, and restates the "firmly held sense of Congress that access to quality health care services during retirement is a benefit earned through prior service to our nation." This provision thus poses a problem if the President follows through with his veto threat as Congress clearly rejected fee increases.

NOTE: The conference report does include increases in TRICARE pharmacy copayments in 2013. There is also a cap on pharmacy copayments starting in 2014 that would allow fees to rise by no more than the annual retiree COLA. This is offset by a pilot program to require TRICARE for Life recipients to obtain maintenance drug refills through the TRICARE mail-order program. (See a more detailed breakdown at bottom of this report.)

Suicide prevention – The Department of Defense (DOD) must develop a comprehensive policy on the prevention of suicide among members of the military. In addition, a new position is to be created within the Office of the Secretary to oversee all suicide prevention and resilience programs within the Department and the Services.

Sexual assault provisions – Many of the provisions addressing sexual assault that were in the House and Senate versions of the bill made it into the conference agreement. New commanders must assess the climate of their organizations with regard to these matters shortly after assuming command and then annually thereafter. DOD must make information about resources available to report and respond to sexual assaults widely available throughout DOD. Each Service must also establish special capabilities for the investigation, prosecution, and victim support in connection with sexual assault and other offenses under the Uniform Code of Military Justice.

Military Compensation and Retirement Modernization Commission – As proposed by the Administration and approved by the Senate, the members of this commission would all be appointed by the Administration, and its recommendations would have to be considered by Congress under expedited, BRAC-type rules that would have barred any amendments and required a "yes or no" Congressional vote, with only limited time for review and debate. The final law, however, protects against "packing" the panel with Administration "yes-people", it allows the president to appoint one commissioner, with two each to be appointed by the Republican and Democratic leaders of the House and Senate, in consultation with the Armed Services Committee leaders. Most important, the final law drops any requirement for a congressional vote, let alone under BRAC-style rules.

Concurrent Receipt – The conference report fixes a long-standing glitch in the current statutory formula that now underpays (and in some cases eliminates any payment) of Combat-Related Special Compensation for combat-disabled military retirees. The affected people will see their proper CRSC payments effective January 1, 2013. Because the formula is so complicated and varies by service length and VA disability rating, it’s impossible to tell in advance which specific people are getting paid correctly or incorrectly under current law. Most of the people affected are likely to be combat-disabled members forced into medical retirement with less than 20 years of service.

Other personnel issues

a. The conference report includes a 1.7% pay increase and extends bonuses and special pays for those in uniform.

b. Caps are placed on the number of troops that can be separated from the Army and Marine Corps in a single year, as those forces draw down in authorized end strength over the next five years.

c. The Armed Forces must accommodate the moral principles and religious beliefs of servicemembers and chaplains. Adverse personnel actions because of those beliefs (such as an opposition to homosexuality) are restricted.

d. Under current law, DOD restricts funding for abortion more narrowly than general federal law, which exempts the prohibition in the case of rape, incest, or life of the mother. The conference agreement expands current DOD restrictions to include rape or incest for Departmental purposes.

Additional TRICARE Pharmacy information:

• Brand-name retail medications: the bill caps the current copay at $17 for 2013, and limits future annual increases to the percentage increase in military retired pay. For example, if the retiree COLA for 2014 is 3%, that would translate to a 51-cent copay increase. But the new law bars any copay hike until the accumulated COLA-based increase is at least $1, so (assuming the COLA for 2015 is also 3%), the copay would stay at $17 for 2014 and rise to $18 in 2015.

• Non-formulary retail medications: DOD proposed to eliminate these medications (currently available for $25 copay) through retail pharmacy, but the new law still keeps them available through retail for a $44 copay.

• Generic retail medications: DOD proposed raising the current $5 copay by $1 a year, starting in 2014. The new law keeps it at $5 for 2013, and applies the COLA cap for future annual adjustments.

• Mail-order generic copays: Instead of the DOD proposal to reinstate a $9 copay for generics in 2017, the new law retains the current zero copay.

• Mail-order brand-name copays: Instead of the DOD plan to raise the current $9 copay to $26 for 2013 and to $34 over the next four years, the new law caps the 2013 copay at $13, and applies the COLA cap for future years (at 3% per year, it would stay at $13 for 2014 and 2015, then rise to $14 for 2016).

• Mail-order non-formulary copays: Instead of the DOD plan to raise the current $25 copay to $51 for 2013 and to $66 over the next four years, the new law caps the 2013 copay at $44 and applies the COLA cap for future years (meaning an additional $1 increase for 2014 if there’s a 3% COLA).

• Mail-order/military pharmacy refills: To make up the lost revenue from capping copays at lower rates, the conference report requires TRICARE-for-Life eligible beneficiaries to try using either military pharmacies or the mail-order system for refills of maintenance medications for at least one year. After a year, they can opt out and go back to using the retail system for all refills if they choose. This new requirement likely will take effect sometime in March 2013. The report establishes requirements to ensure no one is turned away at retail pharmacies without enough medication to last until a mail-order account is established for them. It also gives DOD authority to waive the requirement for selected medications (e.g., many generics likely will be exempted, because they cost no more in retail pharmacies) or beneficiaries (e.g., nursing home patients)


Legion Statement at Senator Sanders’s News Conference

On December 19, Senator Bernie Sanders (VT) held a news conference to oppose cuts in benefits for disabled veterans and their survivors. He asked The American Legion and three other veterans groups to speak at the press conference and support him in his efforts to stop a proposed change in how annual inflation adjustments to Social Security and veterans benefits are calculated.

Deputy Director Dean Stoline made the following remarks:

"Good Morning. My name is Dean Stoline and I am with The American Legion.

"Thank You, Senator Sanders, for inviting The American Legion here today. First, The American Legion congratulates you on being named Chairman of the Senate Veterans Affairs Committee for the next Congress. We are looking forward to working with you and we know you will do a great job.

"Last week when your chairmanship was announced you said it was your first order business to stop a proposal that would slash benefits for disabled veterans. In that announcement you said it was ‘morally and economically unacceptable that anyone in Congress would propose balancing our budget by making significant cuts for disabled veterans.’

"The American Legion agrees with you and we are here today to stand with you – and with these other organizations – to oppose a change that will reduce, for the rest of their lifetimes, the earned benefits of service-connected disabled veterans, the surviving family members of these veterans, and those veterans who are on VA pension because they are elderly or because they became 100% disabled in military service to their country.

"As has been widely reported the proposed change from the traditional consumer price index for the annual Social Security Cost of Living Adjustment, or COLA, to the ‘Chained CPI’ drastically reduces the Social Security benefits to beneficiaries over the rest of their lifetimes.

"However, this change to the Social Security COLA will have an even far greater effect to the economic security of many veterans and their families because the VA programs for service-connected disability compensation, Dependency and Indemnity Compensation; and VA pensions also use the same COLA percentage adjustment as Social Security.

"The enactment of the chained CPI will result in lower lifetime earned benefits for millions of veterans. For example; today, more than 3.2 million veterans receive VA disability compensation benefits and over 310,000 veterans receive VA pension benefits.

"The American Legion is concerned about the fiscal situation of our country. And The American Legion stands ready to help Congress and the President find fair ways to reduce the deficits for the American people. However, we will not support deficit reductions placed on the backs of our elderly veterans, our sick and poor veterans, or by reducing earned benefits to their families and survivors.

"Thank you again, Senator, for inviting The American Legion to this press conference. The American Legion stands ready to work with you to oppose enacting a chained CPI that will only hurt America’s veterans and their families."

Update on Flag Amendment Bills

Sen. Orrin Hatch’s (UT) office continues to solicit additional cosponsors for Senate Joint Resolution (S.J. Res.) 19, a proposed constitutional amendment to protect the American flag from physical desecration. Its text states simply: "The Congress shall have power to prohibit the physical desecration of the flag of the United States." The cosponsor total for the Senate legislation stands at 37. To date, H.J. Res. 13 – the House companion bill to the Senate measure – has accumulated 91 cosponsors, with the recent addition of Rep. Doug Lamborn (CO). (66, 97, 272)

Please contact your representative’s and senators’ offices, and ask them to become cosponsors of the flag amendment in their respective chambers. If they are already cosponsors, be sure to thank them for their support.

Letters of Support

On December 19, The American Legion sent a letter of support to Sen. Susan Collins (ME), giving our support for the FOR VETS Act of 2012. This measure would enable Veteran Service Organization to gain increased opportunities for federal surplus property to educate, train and improve the quality of life for veterans.