Contracts of adhesion1 may be found in many fields of employment law with varying degrees of guile written into each contractual clause. All branches of military employment are no different and features several aspects which may make this set of contracts all the more compelling. First, many military enlisters begin their duty soon after completing high school. Recent graduates have relatively little experience in bargaining for better contractual terms in any arena and may be more easily swayed by statements made by military recruiters, thinking them to be provided as guidance rather than job recruiters. Second, signing an enlistment contract involves an eight year minimum term of service.2 Often the type of service and even sometimes the length may vary greatly with little input provided by the enlistee. Third, the type of commitment is much more dramatic in this context than someone trying to find the best contractual terms among cellular phone providers—enlistees may encounter serious hazards during their term of service and should be fairly compensated for this sacrifice. Finally, the U.S. government provides these contracts and therefore a potential enlistee may find it more difficult to bargain with the government than a private company. A potential enlistee cannot use economic pressure to negotiate for better terms – there is no “competition” to the military.3 Instead, incentives are based upon what they are willing to pay in order to acquire someone with a given set of credentials. Also, if taken to court over a contractual issue, having to face the U.S. government instead of a private entity may be more difficult as a court might give more deference to a government defendant.4 In conclusion, while military enlistment contracts share many aspects of other employer contracts, there are several characteristics of this relationship which warrant special attention and make this an important issue in employment law and contracts.
2. What the Enlistee Signs.
Enlistment into the military includes filling out and signing various forms before an enlistee is assigned a position and begins active duty training. An enlistee may be required to sign multiple contracts at various stages of recruitment, making the terms of the deal involved even more difficult to understand.5 The enlistee will sign three major forms during a typical recruitment process: Department of Defense Form 4, 1966, and 3286.
Form 4 is the most important form as it includes all the terms which will be legally binding upon enlistees once they enter military service. This form includes a confirmation of enlistment, and a statement of current U.S. military laws which could affect the terms of an enlistment contract in the future. Forms 1966 and 3286 are complementary of Form 4 and list personal data, ASVAB line scores6, and information regarding military incentives such as the GI Bill and the College Fund. However, knowing what each form contains is only part of the problem because in certain instances an enlistee may be able to obtain favorable terms within his or her Form 4 contract yet be unable to reap the benefit of those terms during his/her service.7
- The Process
When potential recruits first enters a military recruiter’s office, they begin a convoluted process that will eventually culminate in the recruit signing a final Form 4 stating the terms of the enlistment contract. Before any type of negotiation may begin, a recruiter must first process the enlistee’s credentials, including school history (number of college credits, etc.), ASVAB line scores, criminal history and other data. This information will be used next, when the recruit is sent to MEPS (Military Entrance Processing Station).8
The first important lesson to be learned during this process is that whatever promises the recruiter at the recruiting station has offered have no impact on what actually makes it on the enlistment contract, and hence has no impact on the actual terms of the agreement.9 A recruiter may make promises regarding a certain job the enlistee may receive upon enlistment, however, in order to secure a particular position an enlistee must meet two prerequisites regardless of what is promised: the particular position must be available and the enlistee must be qualified for that position. Qualification and availability may only be determined later in the process during MEPS and any suggestions made by a recruiter may be driven by a need to fill certain openings and not whether a potential enlistee may ultimately obtain the particular position of his/her choice.10
When the military has been able to process all necessary information to determine an enlistee’s qualifications and has been able to match these with a vacancy, the first Form 4 will be presented for the enlistee to sign. However, this is only the first Form 4 as this form forms a contract enrolling the enlistee into the military’s DEP (Delayed Enlistment Program). The DEP is another term for the military’s inactive reserves, a program where the enlistee is not asked to begin training until a pre-set date.11 When an enlistee’s DEP is scheduled to end (usually a part of the original Form 4 contract), the enlistee will be asked to sign another Form 4 before beginning active duty. A second major contractual issue may arise if there are differences between the two Form 4 contracts the enlistee has filled out. A recruit needs to know that no matter what types of terms were negotiated for on the DEP Form 4 (incentives, position, etc.), the terms and only the terms found on the active duty Form 4 control the terms of the enlistment.12 The only terms which are legally binding upon the agreement are the ones found within the “four corners” of the active duty Form 4 enlistment contract.13
4. Enlistment Contract Terms
An enlistee should begin understanding all of the terms found within the contract and what to watch out for regarding these terms, including but not limited to: commitment period, military incentives, rescission and medical care.
A common misconception surrounding military service involves the minimum commitment an enlistee needs to make. This contractual term creates confusion because of the way the military delineates different types of services, such as active duty, active reserves, and inactive reserves. The common misconception of the minimum length of service in the military is four years, but in fact the minimum commitment which must be made is eight years.14 Two or four years needs be spent on active duty while the remainder may be spent in the inactive reserves, which does not require the periodical training required in the active reserves. However, without cause, members in the inactive reserves may also be called into active duty to serve out the remainder of their contract.15 Form 4 states that in the event of war or special emergency, the military may also lengthen the commitment period as long as necessary.
The difference between benefits and incentives within an enlistment contract causes confusion. Outside of the world of enlistment contracts these two terms may be seen as similar or even interchangeable, however, in the context of military enlistment contracts their meaning is completely different. A “benefit” under an enlistment contract refers to an entitlement that is offered to all enlistees which includes the GI Bill, military medical, and amount of base pay.16 These are standardized terms which are not on the table for negotiation and they are actually not included in the enlistment contract.
Enlistment incentives on the other hand are tools the military uses to fill certain hard to fill positions or to attract highly qualified candidates. They are not tailored specifically towards each individual recruit but are set by the military’s national recruiting headquarters. The incentives offered are based on position and qualification and every enlistee with the same qualifications and position will be offered the exact same enlistment incentives.17 Enlistment incentives like benefits may not be negotiated for during the recruitment process as only the recruiting headquarters has authority to set incentives. Even though incentives may not be negotiated for, recruits should still be wary when high incentives are offered for particular positions. The military often includes high enlistment bonuses (up to $40,000) for jobs which are exceedingly difficult to fill. These positions are often difficult to fill because the training results in a high drop-out rate or because nobody wants to do the particular job.18 Enlistees should keep this in mind when a recruiter pitches a position which includes a high enlistment bonus. The enlistee should attempt to research why that particular position is difficult to fill and should be wary of any statements by the recruiter stating that the bonus is offered only because of the enlistee’s specific qualifications.19
Incentives and benefits on an enlistment contract may also be intermingled with specific terms, for example, the “college fund” found on Form 4. The “college fund” listed here is actually the amount awarded from the Montgomery G.I. Bill (benefit) plus money from an incentive (the true college fund).20 Potential recruits should keep in mind that each recruiting branch has restrictions placed upon it determining the maximum amount of incentives which may be bestowed upon each enlistee. Therefore, if a potential recruit chooses to accept a high amount of college fund this choice may result in a reduced enlistment bonus depending on whether the deal exceeds the total cap of the full college fund and bonus. This cap varies by branch: Army ($71,000); Navy and Marines ($50,000).21
5. Enlistment Contract Rescission
One of the most controversial and important aspects of the enlistment process is the time in which a recruit may rescind a promise to enlist. Military recruiters are notorious for not being explicit about when enlistees are allowed under military regulation to rescind without penalty.22 This issue is also tricky because there is a divergence between the language of the enlistment contract and the military practices with regard to the actual policy. A recruit signs two contracts, one for DEP and one for active duty. The language of the DEP contract states that the enlistee promises to begin active duty on a certain date and at that time a new active duty contract is filled out (including all incentives and other terms). However, even though this language clearly states the enlistee must follow through with the commitment the actual policy utilized within the military is not to prosecute those who choose not to follow through with their commitment before they sign their active duty contract.23
6. Medical Care
Medical Care in the military is another area where what a recruiter may promise may differ from what actually is received by the enlistee after signing off on the enlistment contract. Recruiters have a penchant for making extravagant promises of free health care for life when in practice this may not be true. Since the 1980’s and the shrinking of the military due to the end of the cold war, military resources for health care have been dwindling while the number of users requesting medical care has remained largely constant.24 The reduced available resources creates a crunch in benefits provided by the military’s health care provider, Tricare.
Tricare25 coverage is typically split among different groups such as active duty, reserves, and veterans/retirees. Active duty enrollees receive free health care typically provided by the base hospital with Tricare typically performing an HMO type role. Reserves and Guard members are not allowed to enroll in the same program as active duty members and must pay a fee to use Tricare’s services, usually $75 for a Reserve/Guard member or $233 for a family plan per month.26 Retirees and veterans typically get the worst coverage as they must rely primarily on Medicare to cover their medical costs and may only use Tricare for additional costs not covered by Medicare.27 In the recent past these retirees and veterans were not even allowed to use Tricare for additional costs and were forced to pay out-of-pocket for additional expenses even though they were promised initially upon recruitment that they would receive free health care for life.28
Military enlistment contracts have received scant attention which does not comport with the gravity of the issue at stake. When recruits sign one of these employment contracts they make a very long and serious commitment which may put them in very hazardous situations in the future. This type of commitment deserves to be adequately compensated but often potential enlistees fail to understand the enlistment and signing process, making it less likely that they will receive a fair bargain for the services they are willing to provide. Often recruits fail to take into account what the primary purpose of the recruiter is, mistaking the position as one of providing guidance when in reality it is used primarily to help the U.S. military to fill certain job vacancies.29 Enlistees also often fail to grasp what really is on the table to negotiate and who has the power to authorize incentives and other contractual terms. A recruiter may make the process appear open ended with many terms on the table open for negotiation when most of the major terms are typically not available for negotiation.
Enlistees need to be wary of these and other potential contractual traps and need to perform as much outside research as possible regarding what types of incentives and positions are available for their particular qualifications.30 This type of knowledge will empower the enlistee during the enlistment process and will better equip him or her to evaluate both the salesmanship of the recruiter and the actual terms of the contract, to both understand and receive the best possible deal.
1American Bar Association, ABA Family Legal Guide, Contracts and Consumer Law, available at http://public.findlaw.com/abaflg/flg-9-2a-9.html (2009) (“Contracts of adhesion are contracts that give you little or no power to change the preprinted terms, as often is the case in many of the form contracts discussed above, such as loan documents, insurance contracts, and automobile leases.”).
2 See Rod Powers, What the Recruiter Never Told You: Part 4 – Enlistment Contracts and Enlistment Incentives, http://usmilitary.about.com/cs/joiningup/a/recruiter4.htm (2009).
3See Rod Powers, What the Recruiter Never Told You: Part 1 – Deciding Which Military Service to Join (2009), http://usmilitary.about.com/cs/joiningup/a/recruiter1.htm
4Enlistment contract disputes are heard in civil court; however, courts have taken the stance of judging Form 4 disputes on the face value of the form, instead of accepting evidence of oral negotiations which took place during the recruitment. See William P. Casella, Armed Forces Enlistment: The Use and Abuse of Contract, 39 U. Chi. L. Rev. 4, 783 (1972).
5See supra note 2.
6The Armed Forces Vocational Aptitude Battery (ASVAB) is a standardized test administered to enlistees prior to their signing of the enlistment contract. It is the “SAT” of the military and determines an enlistee’s aptitudes in several categories in order to determine what positions he or she may be able to succeed at in military service. See What the Recruiter Never Told You: Part 3 – Enlistment Process and Job Selection (2009), http://usmilitary.about.com/cs/joiningup/a/recruiter3.htm.
7See supra note 2.
8Rod Powers, MEPS at a Glance: An Overview of the Military Entrance Processing Station, http://usmilitary.about.com/od/joiningthemilitary/a/mepsglance.htm (2009) (“MEPS is a Department of Defense joint-service organization staffed with military and civilians. Their job is to determine an applicant's physical qualifications, aptitude and moral standards as set by each branch of military service, the Department of Defense, and federal law.”).
9See supra note 4, at 780.
10See supra note 8.
11Rod Powers, The Delayed Enlistment Program, http://usmilitary.about.com/cs/joiningup/a/dep.htm (2009) (“This is an actual enlistment into the inactive reserves, with an agreement to report for active duty (to ship out to boot camp) at a specific time in the future. Under current regulations, one can remain in the DEP for up to 365 days.”).
12See supra note 2.
13See supra note 4, at 784.
14Supra note 2 (“Under a program called "Stop Loss," the military is allowed to prevent you from separating, during times of conflict, if they need your particular warm body. During the first Gulf War (1990), all of the services implemented "Stop Loss, "preventing pretty much anyone from separating, for an entire year.”).
15See supra note 11
16Supra note 2 (“An enlistment incentive is different than a military benefit in that not everyone is eligible, and it must be in the enlistment contract to be valid.”).
17Supra note 2 (Incentives are authorized for specific jobs or specific enlistment programs by the Recruiting Command Headquarters for the individual service.”).
18See Rod Powers, What the Recruiter Never Told You: Part 2 – Meeting the Recruiter, http://usmilitary.about.com/cs/joiningup/a/recruiter2.htm (2009).
19See Citizen Soldier, The Military Enlistment Contract and You, http://www.citizen-soldier.org/cs12-enlistment.html, (2009).
20Mixing incentives with benefits creates the impression to the recruit that they are receiving a larger incentive than they truly are. The G.I. Bill is a fixed benefit and inflates the “college fund” listed on Form 4, creating the impression that the enlistee is receiving a hefty incentive when in reality he or she is receiving a small one coupled with a large benefit. Rod Powers, What the Recruiter Never Told You: Part 8 – Education Benefits and Enlisted College/Commissioning Programs, http://usmilitary.about.com/cs/joiningup/a/recruiter8.htm (2009) (“The ADMGIB [Active Duty Montgomery G.I. Bill] is the same for all of the active duty services.”).
21See Military Bonus Center, http://www.military.com/recruiting/bonus-center/ (2009) (listing bonus and incentive structures for each branch of the military).
22See supra note 6 (“One final thing about the DEP some recruiters may not want you to know: In this program, you enlist, and "promise" to ship out for boot camp on the designated date. This is a binding contract, and if the military wanted to, they could prosecute you for not shipping out on the date specified on the contract. However, current regulations and policies require the military services to discharge you from the DEP, if -- at any time before shipping out -- you apply to be released from the contract (the request should be in writing and should state the reason you wish to be discharged from the DEP.”).
24See Rod Powers, What the Recruiter Never Told You: Part 12 – Military Medical and Dental Care, http://usmilitary.about.com/cs/joiningup/a/recruiter12.htm (2009) (“As a result of down-sizing, 35 percent of the military hospitals that existed in the United States in 1987 are closed today. Several dozen others have cut services.”).
25Tricare is the current military healthcare system, encompassing medical, dental, vision, and mental health care for military members and veterans. Tricare is made up of uniformed services as well as a network of civilian health services centers which are contracted to work with Tricare in dispensing health care to members of the military. See What is Tricare?, http://www.tricare.mil/mybenefit/home/overview/WhatIsTRICARE (2009).
26See supra note 24.
29See supra note 18.
30See supra note 19.