The Army Lawyer
Response in the Indo-Pacific Theater
|Staff Sgt. Virginia Inouye and Master Sgt. Brandon Sarceda, 204th Airlift Squadron loadmasters, deliver Hawaii Air National Guard Airmen and Soldiers April 17, 2020, to Kahului Airport, Maui, Hawaii. Guardsmen were airlifted from Oahu on a C-17 Globemaster III to minimize the risk of exposure of disease at airports. Hundreds of guardsmen have been activated to assist the State of Hawaii’s response to COVID-19. (U.S. Air Force photo by Senior Airman John Linzmeier)|
Judge advocates (JAs) are frequently asked to compile a comprehensive list of all of a commander’s authorities—this is not an easy task. Judge advocates know that authorities are derived from a vast library of resources—from the Constitution, to laws and statutes, all the way down to regulations, directives, policies, and orders. For an Army Service Component Command, authorities can flow from either the Combatant Commander (CCDR) or the Secretary of the Army (SecArmy). Some affectionately refer to the Combatant Command (CCMD) and Headquarters, Department of the Army (HQDA) as mom and dad. In the same way that parents can have different approaches to enforcing rules for their child, the CCMD and HQDA can have differing approaches to implementing Department of Defense (DoD) policies. As a legal advisor for a subordinate command, whose guidance should the command follow?
This question became more than academic over the past several months as attorneys at United States Army Pacific (USARPAC) responded to guidance relating to COVID-19 force health protection and requests for Defense Support to Civil Authorities (DSCA). The COVID-19 pandemic response operations highlighted the difficulty in determining the applicability of guidance from two higher headquarters on an issue that impacts CCMD and Service responsibilities. Both United States Indo-Pacific Command (USINDOPACOM) and HQDA published orders and guidance implementing DoD policies—some of which conflicted or were unclear as to application outside the continental United States (OCONUS), to include Hawaii, Alaska, and the U.S. territories. Even when the orders from higher were unambiguous, to ensure proper authorities were applied, JAs needed to be knowledgeable about a broad array of authorities for the multiple, simultaneous missions related to COVID-19.
Many of the legal issues addressed during COVID-19 were not new or particularly difficult. The challenge has been identifying the correct authority for the distinct mission when the various missions stem from the same threat—a global pandemic. Judge advocates embedded in the planning process recognized the potential conflicts and ensured that authority and funding lines were not crossed. This article discusses CCMD and HQDA lines of authority while using the COVID-19 response as a case study in the way the authorities can easily be blurred. This article also focuses on authorities applied to DSCA response while also addressing force health protection and stop movement guidance. The section Lines of Authority discusses some of the conflicts between the lines of authority and ambiguity contained in the policies from HQDA. Next, the section Multiple Simultaneous Missions highlights some of the confusion that resulted from executing several simultaneous missions all stemming from the same threat. The Conclusion reiterates the importance of using precise language in policies and understanding the authorities applicable to a complex operation with various simultaneous missions.
Lines of Authority
Legislation known as the Goldwater-Nichols Department of Defense Reorganization Act of 1986 was a significant organizational change for the DoD; it was intended, among other things, to streamline the chain of command for CCDRs.1 The legislation gave operational authority to CCMDs for assigned forces, while individual Services remained responsible for the administrative support of those forces.2 This created two distinct lines of authority. The first flows from the President, through the Secretary of Defense (SecDef), to the CCDRs; the second flows from the President, through SecDef, to the Service Secretaries. Commanders of units assigned to a CCMD derive authorities from both lines—mom and dad.
United States Army Pacific Command is the operational-level Army Service component command assigned to USINDOPACOM.3 As such, USARPAC is under the authority, direction, and control of the CDR, USINDOPACOM on all matters assigned to USINDOPACOM.4 The CCDR exercises Combatant Command (COCOM) authority over assigned forces—authority involving organizing and employing; assigning tasks; designating objectives; and giving authoritative direction over all aspects of military operations, joint training, and logistics necessary to accomplish assigned missions.5 When delegated, Combatant command authorities—including operational control authorities—are exercised through Service component commanders.6 While the CCMD is responsible for operational missions, for example DSCA, the Services are responsible for the administration and support of Service forces, including forces assigned to a CCMD.7 Service Secretaries execute these authorities through administrative control (ADCON)—authority over organizations with respect to administration and support, including training, maintaining, equipping, and deploying the forces.8 Because these are the SecArmy’s statutory responsibilities, ADCON does not transfer outside of the Army.9 United States Army Pacific Command exercises ADCON authority and responsibility on behalf of SecArmy for USARPAC forces that have been further assigned to USINDOPACOM.10 Accordingly, USARPAC derives its authorities from USINDOPACOM for operational missions and from SecArmy for administrative support of Army forces. Mom and dad each set the rules for issues under their respective domains.
The threat caused by COVID-19 impacted all military activities and cannot be classified as solely operational or administrative. For example, the DoD stop movement policies impacted travel for DSCA missions and other operations as well as travel for training at Army schools. Consequently, USARPAC received direction from both lines of authority.
Combatant Command vs. Service Authorities
Almost seven months into the pandemic response, USARPAC staff and subordinate forces continue to struggle with understanding authorities and delegations. This is problematic when the CCMD and HQDA interpret or implement DoD policies differently. This section focuses on the authority to grant exceptions to the DoD stop movement policies to illustrate the issue.
In March 2020, DoD issued three separate stop movement policies, which were ultimately replaced by a 20 April 2020 memorandum applicable to all domestic and international travel.11 In each of the policies, there was explicit language identifying exception authorities for the stop movement policies: the CCDR could approve exceptions for individuals assigned to the CCMD and the Service Secretary could approve exceptions for individuals under his jurisdiction.12 In other words, follow the parent with custody.
Under a delegation from the USINDOPACOM Commander, the Commanding General of USARPAC initially withheld exception authority at his level.13 The SecArmy’s delegations, on the other hand, varied based on the type of travel—emergency leave, for example.14 Despite USARPAC’s withholding of the exception to policy (ETP) authority, USARPAC staff and subordinate units routinely followed the SecArmy delegations, instead of adhering to the less permissive USARPAC authorities. There are at least two reasons for the confusion. First, some of the staff who normally took direction from HQDA on ADCON issues (e.g., permanent change of station (PCS) moves) continued to do so without understanding that for the stop movement policies, SecDef delegated authority through the CCMD line of authority for units assigned to the CCMD. This confusion was eventually mitigated through better staff communication and collaboration. The second source of confusion was that, at least initially, HQDA delegations appeared to apply Army-wide, including forces assigned to a CCMD.
Between 14 and 22 March 2020, HQDA published seven documents regarding COVID-19 stop movement policies that appeared to evolve in their level of recognition of the different lines of authority. The first policy stated that SecArmy was the ETP authority to the stop movement policy, with no disclaimer for personnel assigned to a CCMD.15 The Secretary of the Army’s subsequent delegation to the Under Secretary of the Army (USA) and the Vice Chief of Staff of the Army (VCSA) only delegated authorities granted “to him”16 but applied the memorandum “to all Army military and civilian personnel and their families assigned to DoD installations, facilities, and surrounding areas in the United States and its territories.”17 The authority to approve emergency leave, as well as the return of Service members and Department of the Army Civilians from temporary duty or leave, was later delegated to the first General Officer/Senior Executive Service in the chain of command.18 This delegation was emailed to commanders, regardless of whether they were assigned to a CCMD. The USARPAC staff drafting orders initially incorporated language from both lines of authority, causing considerable confusion. Judge advocates began sitting side by side with the personnel drafting the orders to ensure the correct delegations were incorporated into the USARPAC orders.
The HQDA publications eventually included explicit language regarding applicability of the delegations. However, there continues to be confusion regarding COCOM and ADCON authorities and why CCMD-assigned forces follow the CCMD lines of authority for some ADCON issues.19 The best way to mitigate confusion in the future is through clearer language in policies and better communication.
The Office of The Judge Advocate General’s National Security Law Read Book, which contained updates on the most recent authorities and information on potential forthcoming HQDA guidance, helped JAs identify potential conflicts early. The USARPAC Office of the Staff Judge Advocate created its own daily summary, which was shared with subordinate JAs. The USARPAC National Security Law Division also created a theater milBook site and held monthly virtual theater sync meetings to create a shared understanding of the policies.20
Continental United States (CONUS) vs. Domestic—What’s in a Name?
In addition to confusion regarding lines of authority, initial HQDA policies appeared to conflate domestic with CONUS, causing additional uncertainty. Operational control authorities and other units assigned to USARPAC are located in Hawaii, Alaska, Washington State, Guam, Republic of Korea, and Japan. Joint doctrine defines CONUS as the “United States territory, including the adjacent territorial waters, located within North America between Canada and Mexico.”21 This excludes Alaska and Hawaii. A pay and allowances statute defines CONUS as the forty-eight contiguous states of the United States and the District of Columbia, excluding Alaska and Hawaii.22 The Financial Management Regulations make a distinction between OCONUS and Non-Foreign OCONUS, defining Non-Foreign OCONUS as Alaska, Hawaii, and U.S. territories and possessions—which in the Indo-Pacific includes Guam, the Commonwealth of the Northern Mariana Islands (CNMI), and American Samoa.23 Therefore, units in Washington State are CONUS, while the remaining USARPAC units are OCONUS or Non-Foreign OCONUS.
The Secretary of Defense’s first stop movement order for domestic DoD travel applied to all “DoD military and civilian personnel and their families assigned to DoD installations, facilities, and surrounding areas in the United States and its territories.”24 However, some of the Army’s guidance implementing the DoD policy referred to CONUS instead of the United States and its territories, thereby excluding Alaska, Hawaii, and the U.S. territories. For example, an All Army Activities message addressing PCS guidance included CONUS to CONUS PCS moves and CONUS to Foreign OCONUS locations.25 Non-Foreign OCONUS locations were not addressed. Similarly, an HQDA execute order addressed several travel scenarios between the Center for Disease Control, Travel Health Notice Level 2 or 3 countries, and CONUS; once again, this left a gap for Hawaii, Alaska, and U.S. territories.26
In the global pandemic environment, it is logical that different standards apply to international and domestic locations, as well as between CONUS and OCONUS. However, many of the HQDA policies and guidance omit the Non-Foreign OCONUS locations. These policies were likely intended to make a distinction between domestic and foreign; however, the failure to recognize that the Indo-Pacific area of responsibility (AOR) includes Non-Foreign OCONUS locations caused confusion and guesswork on HQDA’s intent. Much of the confusion occurred in the beginning of pandemic operations when leaders were trying to get information to the field quickly. This confusion could be mitigated by using more precise and consistent language. In addition to interpreting orders from two higher headquarters, JAs needed to understand COVID-19 response missions—and applicable laws—to ensure the proper authorities and funding were being followed.
Multiple Simultaneous Missions
Since January 2020, all military commands shifted efforts to responding to the COVID-19 threat. In addition to force health protection efforts, USINDOPACOM activated USARPAC as the Theater Joint Force Land Component Command (TJFLCC) and supported component command for DSCA for the COVID-19 response. It was also designated lead for foreign humanitarian assistance (FHA) in specified countries. With the exception of force health protection, personnel in this area of operations understand the applicable authorities and have significant experience with the various missions—especially DSCA. The United States Army Pacific Command has served as the supported command for several events—such as volcanic eruptions, hurricanes, and super typhoons—in the past two years. However, the DSCA events have been isolated to one geographic area at a time. This is the first time forces are executing DSCA missions throughout the United States and its territories, planning for FHA, and implementing force health protection measures all at the same time. The challenge is not in understanding the authorities, it is in applying the correct authorities to the specific mission.
USINDOPACOM, the Other DSCA Authority
Not many people are aware that USINDOPACOM has a distinct DSCA mission and territory from U.S. Northern Command (USNORTHCOM).27 In fact, initially the Federal Emergency Management Agency (FEMA)—the lead federal agency for DSCA—appeared to forget. Due to the nationwide effort to respond to the COVID-19 threat, some requests for assistance from states were scoped at a national level. When this happened, FEMA issued the request to USNORTHCOM for validation and approval—but failed to include USINDOPACOM. Since USNORTHCOM does not have the approval authority for the USINDOPACOM AOR, USINDOPACOM and USNORTHCOM had to develop an internal DoD process for reviewing FEMA requests that could impact both AORs before being approved.
The DSCA mission in the USINDOPACOM AOR is challenging because of vast distances and diverse locations. The AOR includes the State of Hawaii and the U.S. territories of Guam, American Samoa, and CNMI. United States Army Pacific Command is located 2,405 miles from the applicable FEMA regional headquarters, and is located between 2,566 and 3,864 miles from the DSCA locations it supports. The Commonwealth of the Northern Mariana Islands is comprised of fourteen separate islands which have varying levels of infrastructure and only one hospital. American Samoa and CNMI do not have National Guard units and cannot easily receive assistance from another State’s National Guard. The vast distances make assistance from other states, territories, or commercial contractors infeasible. In many cases, the DoD is not just the most appropriate resourcing solution, it is the only solution. Consequently, DSCA missions in the Indo-Pacific tend to be more substantial than they might be in other parts of the United States. This section highlights a few of the issues JAs addressed when conducting DSCA, FHA, and force health protection missions simultaneously.
DSCA—Not Just the Stafford Act
The complex nature of the COVID-19 DSCA response revealed that most practitioners focus on the Stafford Act28 as the single source for DSCA authority and that the Economy Act29 is often overlooked. The authority for DoD to provide DSCA support to other federal agencies is derived from the Economy Act, whereas the Stafford Act gives authority to support state and local authorities. While both authorities provide a valid basis for DSCA support under DoD Directive 3025.18, DSCA practitioners are most familiar with the Stafford Act’s authorities to aid local governments. It was easy to forget that when another federal entity requests assistance, the authority is found in the Economy Act.
During the initial stages of the pandemic, both local and federal authorities engaged in planning and response efforts. The Department of Health and Human Services (DHHS) issued the earliest requests for assistance to the DoD asking for assistance in quarantining individuals returning to the United States from China. Joint Base Pearl Harbor-Hickam (JBPHH) was designated as a quarantine site for these travelers while, at the same time, the state and local authorities began to plan for state-directed quarantine sites.
The TJFLCC planners initially recommended that the State of Hawaii make a Stafford Act request to use the same facility that DHHS was establishing at JBPHH for travelers returning from China. The State was informed that it would be required to pay a share of the cost for establishing and running the facility. Hawaii officials were understandably confused as to why DoD would suggest the State request use of a federally–established quarantine site and then require it to pay a portion for operation of the site. Judge advocates advised that the DHHS requests were Economy Act requests—which basically amount to transfer of funds through the Treasury, and that the State’s requests were Stafford Act requests—which could come with cost sharing. If travelers were being quarantined by the order of the Federal Government, the State would not be responsible for any of the costs; but, if the State wanted to use the facility, it would be responsible for a share of the costs. While this was the first confusion, it was not the last when it came to these two authorities.
DSCA vs. Force Health Protection—USS Theodore Roosevelt
The Stafford and Economy Acts were again confused when both civil authorities and DoD officials prepared to respond to the COVID-19 outbreak on a Navy aircraft carrier. The USS Theodore Roosevelt docked in Guam with a ship full of infected Sailors, requiring a DoD response for both DSCA and internal DoD support. At the same time, FEMA requested DoD assistance in standing up the reserve center in Guam to provide shower, bath, laundry, and other logistical support to forces providing DSCA assistance in Guam; the DoD marshalled resources to aid the Sailors of the USS Theodore Roosevelt. The overlapping efforts by some of the same personnel initially caused confusion.
Judge advocates advised that direct support to the USS Theodore Roosevelt Sailors was a DoD internal effort and should be requested through the Economy Act. Since it was not a request from civil authorities, the support could not be tasked as part of a FEMA mission assignment or be funded by FEMA disaster relief funds. However, support to Guam for issues stemming from the infected Sailors could be a valid mission assignment. For example, requests from a local government for medical support at the local hospital overwhelmed by treating infected Sailors could be funded by FEMA.
DSCA vs. Traditional Military Air Transportation Authorities—Strategic Air to American Samoa
When the Governor of American Samoa closed the territory’s borders to incoming passengers, commercial airlines cancelled routes to American Samoa. This left residents stranded without regular commercial transportation to get supplies and personnel to the distant island. Civilian authorities in American Samoa requested FEMA’s assistance in transporting medical personnel and lab testing supplies.30 The military aircraft conducting the mission were not full, so there were requests to fill the seats with non-DSCA related passengers, including DoD retirees in need of non-COVID-19-related medical treatment, a non-DoD affiliated bone marrow transplant donor, and—in one case—a family that had been stranded in Alaska and Hawaii several months after the borders in American Samoa were closed.
Reviewing requests for civilians to fly on military aircraft is not a novel legal issue. Department of Defense Instruction (DoDI) 4515.13 sets out eligibility requirements for transporting civilians on military aircraft.31 However, the DoDI does not address applicability to DSCA missions where another federal agency is funding the flight. Additionally, SecDef restricted the ability of certain categories of passengers to fly Space Available during COVID-19, but he exempted certain categories of individuals, such as military retirees traveling for medical treatment.32 This carve-out provided the authority to transport retirees travelling from American Samoa to Hawaii for medical treatment. The authority to transport the other passengers was more challenging.
There are two types of assistance FEMA provides to State and local authorities: Direct Federal Assistance (DFA) and Federal Operational Support. Federal Operational Support is when one federal agency assists another to execute its response and recovery missions.33 Because the support is internal to the federal government, there is no cost-share with the State or local authorities. Direct Federal Assistance, on the other hand, is when a State or local authority makes a specific request for a certain type of assistance.34 If FEMA supports the assistance, the State or local authority typically shares the costs.
Judge advocates advised that, while transporting a stranded family may not appear to be a traditional DSCA emergency mission, DFA provides FEMA with the authority to request the transportation of people who might not otherwise be authorized to travel on the military aircraft as part of the DSCA mission—so long as FEMA has non-DSCA authority to transport the individuals.35 Judge advocates looked beyond military transportation policies to find the applicable authorities to transport the passengers. The Federal Emergency Management Agency began categorizing these non-traditional DSCA passengers as DFA on the mission assignment tasking orders to ensure the proper cost sharing was applied. Equally as important, the stranded family was returned home.
DSCA vs. FHA
United States Army Pacific Command was also designated the TJFLCC for FHA in the Compact of Free Association (COFA) States, which include Palau, Republic of the Marshall Islands (RMI), and the Federated States of Micronesia (FSM). Designating one command to coordinate DSCA and FHA provides for efficiencies in training and experience; but, it can also confuse authorities for operations that look similar if it wasn’t for the sovereign of the territory where the assistance is being provided. The United States has a unique relationship with the COFA states, but they are still sovereign nations.
After World War II, the three COFA states mentioned above and CNMI were placed under the United Nation’s Trusteeship System and declared the United States to be the Administering Authority.36 Originally controlled by the U.S. Navy, in 1951 administration was transferred to the U.S. Department of the Interior. The CNMI became a U.S. territory while Palau, RMI, and FSM became independent nations known as the Freely Associated States.37
The lead federal agency for FHA to the COFA states is the U.S. Agency for International Development.38 However, FEMA drafted a mission assignment to move supplies from the Strategic National Stockpile for the COVID-19 response to Guam, CNMI, and the COFA states. Judge advocates advised that FEMA lacked authority for the proposed mission assignment and, therefore, would not have the authority to reimburse DoD under the Stafford Act for the assistance. Ultimately, DHHS contracted directly with a carrier to move the supplies to the COFA states.
This section highlighted a few of the legal issues encountered while advising on DSCA operations. Judge advocates identified potential issues early and helped ensure proper authorities and funding were applied to the distinct missions. Much of their success can be attributed to recent DSCA experience and training. The servicing JAs had already built relationships and gained the trust of the relevant leaders. Consequently, they were included in planning with FEMA and the state and territories from the beginning of the current operations.39
Judge advocates are trained to spot legal issues and, while the challenges brought on by the COVID-19 pandemic might appear novel, the fundamentals of mainly administrative and fiscal law and command authority are not new. The challenge is two-fold: (1) how do we correctly implement policies from two higher headquarters, and (2) how do we identify the correct authority for the distinct missions when there are multiple efforts to address the same threat? The COVID-19 pandemic and associated DoD response tested internal understanding of authorities, as well as the ability to coordinate planning and execution of multiple missions under a web of authorities. Learning the fundamentals of traditional man, train, and equip authorities versus COCOM authorities is essential for JAs to help commanders navigate these missions. The COVID-19 response highlighted some challenges that had not been fully realized before; but, these lessons are already being codified in after action reports for the next major disaster response. The more that experiences are shared, and the more lessons are learned across the Corps, the better JAs will understand authorities in the future. TAL
1. Goldwater-Nichols Department of Defense Reorganization Act, Pub. L. No. 99-433, 100 Stat. 993 (1986).
2. 10 U.S.C. § 7013. The Secretary of the Army is responsible for, and has the authority necessary to conduct, all affairs of the Department of the Army, including: recruiting, organizing, supplying, equipping, training, servicing, mobilizing, demobilizing, administering, and maintaining the construction, outfitting, and repair of military equipment; the construction, maintenance, and repair of buildings, structures, and utilities; and the acquisition of real property and interests in real property necessary to carry out the responsibilities specified in this section.
3. U.S. Dep’t of Army, Reg. 10-87, Army Commands, Army Service Component Commands, and Direct Reporting Units (11 Dec. 2017) [hereinafter AR 10-87].
4. 10 U.S.C. § 164(d)(1) (1986).
5. Id. at (c)(1); Joint Chiefs of Staff, Joint Pub. 1, Doctrine for the Armed Forces of the United States V-2 (25 Mar. 2013) (C1, 12 July 2017) [hereinafter, JP 1].
6. JP 1, supra note 5, at V-6.
7. Id. at V-12.
9. Id. 10 U.S.C. § 7013.
10. AR 10-87, supra note 3, para. 8-3a. United States Army Pacific also exercises shared administrative control (ADCON) over other United States Indo–Pacific Command assigned Army forces through military operation areas (MOAs), such as the MOA with United States Army Forces Command for shared ADCON of I Corps.
11. Memorandum from Sec’y of Def. to Chief Mgmt. Officer, Dep’t of Def. et al., subject: Travel Restrictions for DoD Components in Response to Coronavirus Disease 2019 (11 Mar. 2020) [hereinafter 11 March 2020 Travel Restrictions Memo]; Memorandum from Deputy Sec’y of Def. to Chief Mgmt. Officer, Dept. of Def. et al., subject: Stop Movement for all Domestic Travel for DoD Components in Response to Coronavirus Disease 2019 (13 Mar. 2020); Memorandum from Joint Staff J3 to U.S. Command et al., subject: MOD 01 to REVISION 01 to DoD Response to Coronavirus-2019 EXORD (24 Mar. 2020); Memorandum from Sec’y of Def. to Chief Mgmt. Officer, Dep’t of Def. et al., subject: Modification and Reissuance of DoD Response to Coronavirus Disease 2019—Travel Restrictions (20 Apr. 2020).
12. See supra note 11. The Department of Defense (DoD) policies also specified that, if the individual is assigned to the Joint Staff and the Chief Management Officer for the Office of the Secretary of Defense, the approval authority for exemptions to the stop movement policies belong to the Chairman of the Joint Chiefs of Staff.
13. Headquarters, U.S. Army Pacific Command, Fragmentary Order 1 to USARPAC Order 20-03-029, USARPAC COVID-19 Response and Reporting, para. 3.E.4.B.4.D (22 Apr. 2020).
14. Memorandum from Sec’y Army to Principal Officials of Headquarters, Dep’t of Army et al., subject: Delegation of Authority to Approve Domestic Travel (20 Mar. 2020).
15. Headquarters, Dep’t of Army, Execute Order 144-20, Army Wide Preparedness and Response to Coronavirus (COVID-19) Outbreak, Fragmentary Order 8 (14 Mar. 2020).
16. Citing Memorandum from Sec’y Army to Principal Officials of Headquarters, Dep’t of Army et al., subject: Delegation of Authority to Approve Domestic Travel (15 Mar. 2020).
18. Citing Memorandum from Sec’y Army to Principal Officials of Headquarters, Dep’t of Army et al., subject: Delegation of Authority to Approve Domestic Travel (20 Mar. 2020).
19. This topic should receive greater attention during the officer basic and graduate courses to ensure JAs understand the lines of authority.
20. USARPAC AOR National Security Law Group, MilBook, https://www.milsuite.mil/book/groups/usarpac-aor-national-security-law (last visited Sept. 22, 2020). The link provided leads to a group discussion by USARPAC AOR National Security Law. This is a private group and you must obtain permission to enter it. Id.
21. JP 1, supra note 5, at GL-6.
22. 37 U.S.C. § 101 (1962).
23. U.S. Dep’t of Def., 7000.14-R, DoD Financial Management Regulation vol. 9, DEF-10 (Sept. 2019).
24. 11 March 2020 Travel Restrictions Memo, supra note 11.
25. All Army Activities Message, 026/2020, 172052X Mar. 20, U.S. Dep’t of Army et al., subject: Personnel Policy Guidance in Support of Army Wide Preparedness and response to Coronavirus Disease (COVID) 19 Outbreak.
26. Headquarters, Dep’t of Army, Execute Order 144-20, Army Wide Preparedness and Response to Coronavirus (COVID-19) Outbreak, Fragmentary Order 7 (14 Mar. 2020).
27. Joint Chiefs of Staff, CJCS Defense Support of Civil Authorities EXORD (30 July 2019).
28. Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 §§ 5121-5207, as amended.
29. Economy Act, 31 U.S.C. § 1535.
30. U.S. Dep’t of Homeland Sec., Federal Emergency Management Agency Mission Assignment 3465EM-AS-DOD-01 (24 Mar. 2020).
31. U.S. Dep’t of Def., Instr. 4515.13, Air Transportation Eligibility (22 Jan. 2016) (C4 31 Aug. 2018).
32. Memorandum from Under Sec’y of Defense to Sec’y Military Dep’t. et al., subject: Space Available Travel Program Limitations Due to Coronavirus Disease 2019 (23 Mar. 2020).
33. 44 C.F.R. § 206.8 (2009).
34. U.S. Dep’t of Homeland Sec., Federal Emergency Management Agency, Mission Assignment Policy FP 104-010-2 (6 Nov. 2015).
35. In this case, the Federal Emergency Management Agency (FEMA) used its own “Space-A” authorities, where individuals may be transported so long as there is space on the flight and the individuals reimburse FEMA for the costs of the flight. This initially caused confusion, as FEMA requested the individuals to be transported under “Space-A” authorities and asked that the DoD be responsible for determining the reimbursement amounts and collect the money from the individuals. Once it became clear that FEMA was working under “FEMA Space-A” and not “DoD Space-A,” the mission could be executed.
36. S.C. Res. 21 (Apr. 2, 1947).
37. The Freely Associated States was an independent nation that signed a comprehensive agreement with the United States—called a COFA—that governs diplomatic, economic, and military relations with the United States.
38. In the absence of a Presidential Disaster Declaration, the U.S. Agency for International Development (USAID) supports the Republic of the Marshall Islands (RMI) and the Federates States of Micronesia (FSM) as they would any other country. If there is a Presidential Disaster Declaration, USAID is still the Lead Federal Agency, but FEMA is authorized to pay for the support (USAID does the work, FEMA pays the bill). This operational blueprint is contained in the Federal Programs and Services Agreements for the Compacts of Free Association. Palau does not have a Federal Programs and Services Agreement like FSM and RMI, so FEMA does not provide any Foreign Humanitarian Assistance support to Palau. The United States Agency for International Development could request that FEMA provide support to Palau, but USAID would fund the support.
39. The Center for Army Lessons Learned co-hosted a two-day DSCA training with USARPAC in November 2018, and hosted DSCA training in New Orleans in July 2019. These training efforts should be sustained and broadened to include pandemic scenarios and issues unique to the Indo-Pacific AOR.