I. THE PURPOSE OF THE SERVICEMEMBER'S CIVIL RELIEF ACT
The Servicemember’s Civil Relief Act (which will be referred to as the SCRA or the Act) is a Federal law. The statute is found at 50 U.S.C. App. §3901 et. seq. The purpose of the Act is to allow servicemembers to focus their energies on the defense of our nation. The Act provides for the suspension of civil proceedings in the courts which might adversely affect the rights of service members during their military service.
II. WHO IS COVERED UNDER THE SCRA?
50 U.S.C. App. §3911 defines those service members covered by the Act. The Act applies to members of the Army, Navy, Air Force, Marine Corps, and Coast Guard on active duty as defined in 10 U.S.C. 101(d)(1). The Act may also apply to members of the National Guard, and commissioned members of the Public Health Service and the National Oceanographic and Atmospheric Administration.
See 32 U.S.C. §507(2f)
III. HOW DOES A PLAINTIFF COMPLY WITH THE SCRA?
If the plaintiff is asking for a judgment by affidavit or default, then the plaintiff is required to file an affidavit setting forth facts showing that the defendant is not in the military service.
A. How can a plaintiff prove that a defendant is not in the military service?
If the plaintiff has the last name and social security number of the defendant, the plaintiff may access the Defense Manpower Data Center web site at https://www.scra.dmdc.osd.mil The plaintiff must enter the defendant’s last name and social security number. It is helpful to have the defendant’s first name and middle initial. If the defendant is on active duty, the report will show his/her branch of service and beginning date of active duty status. If the DMDC does not have information as to whether or not the individual is on active duty the report will list last name, first name, middle initial and will state:
Based upon the information you have furnished, the DMDC does not possess any information indicating that the individual is currently on active duty.
B. What if the plaintiff does not have the defendant’s social security number?
The plaintiff may request a manual search using the defendant’s name and date of birth by mail. Send a request with a self-addressed, stamped envelope to:
Defense Manpower Data Center
Attn: Military Verification
1600 Wilson Blvd. Suite 400
Arlington, Virginia 22209-2593
C. What if the plaintiff does not have the defendant’s social security number or a date of birth?
The plaintiff must file a Military Affidavit which contains a factual basis upon which the court may reasonably conclude that the defendant is or is not a member of the military service. Simply writing “I have never seen Ms. defendant in a military uniform”, or “Mr. tenant has never mentioned that he is a service member”, is not likely to be found sufficient evidence of military status. Some factors the court may consider are:
- Whether the defendant has recently been asked if they are a member of the military.
- Whether an inquiry has been made of a resident of the same household who is of suitable age and discretion as to the defendant’s military status (see Md. Rules 2-121, and 3-121).
- Whether the defendant’s spouse has been asked about the defendant’s military status.
- Whether a neighbor has been asked about the defendant’s military status.
See also Tivoli Assoc. VS. Foskey 144 Misc. 2d. 723, 545 N.Y.S. 2d. 259 (Civil Court, Kings County, 1989)
D. What happens if the plaintiff cannot determine whether the defendant is or is not in the Military Service?
The court may require the plaintiff to post a bond in an amount approved by the court. The bond is required so that if it is later discovered that the defendant is a member of the military service, the bond is available to indemnify the service member for any damages due to the default judgment should the judgment be vacated.
E. What happens if the defendant is in the Military Service?
If the defendant is in the Military Service the court must appoint counsel to represent the service member. Appointed counsel must then contact the service member to determine whether the service member has a meritorious defense to the action. If after a hearing the court determines that the defendant has a meritorious defense to the action, and that the defense cannot be presented in the absence of the service member, the court must stay the proceedings for at least ninety (90) days. If appointed counsel cannot locate the defendant the court is required to stay the proceedings for at least ninety (90) days.
Filing a false military affidavit is a misdemeanor punishable by up to one (1) year incarceration and a fine not to exceed one thousand dollars ($1,000.00)