Want to Help Veterans? A Guide for the New Administration in Two Easy Steps.

The return of tens of thousands of veterans from Iraq and Afghanistan over the past few years, and the expectation of the largest wave of war veterans into US society since 1972 has become an important topic for the new administration. Paul Rieckhoff and the folks at IAVA are advancing the cause by bringing to public notice the issues of our returning troops http://www.huffingtonpost.com/paul-rieckhoff/more-soldiers-lost-to-sui_b_165510.html.

This is good work; it helps not only our vets, but our society as well. In ancient times, warriors were the elite caste of a society. The idea that a Spartan warrior would have PTSD is ludicrous; the society in which he lived was shaped around the "glory" of organized bloodshed. Things, gratefully, are different in the modern era and there are serious psychological and medical issues that need to be addressed by the Veterans' Administration and Congress. Luckily, IAVA, the Veterans of Foreign Wars, the American Legion, and many other veterans' groups are lobbying to help our men and women who have served.

I want to talk about two other issues that are often overlooked, that would not only boost morale in our serving military members, but correct oversights and deficiencies that have been, or will in the near future, punitively applied to those who have served. I am talking about two issues: gaps and omissions in the New GI Bill and the 1981 Former Spouses Protection Act.

I firmly believe the New GI Bill is a great boon for those who served. It provides a realistic stipend for the veteran to go to college, pays for tuition and books, and should have the same societal benefit as the World War II Era GI Bill did. However, there is a glaring problem with the New GI Bill. Provisions for transferring benefits to spouses and children--a wonderful thing, given the problems than many enlisted personnel have in paying for college for their kids--only applies if the service member is on active duty after August 1, 2009. In other words, if a soldier was wounded in Iraq in 2004 and left the military, they get their GI Bill benefits, but cannot transfer them to their spouse or children. This is, I believe, a simple oversight in the legislation that unfairly punishes anyone who served between September 11, 2001, and July 31, 2009. In full disclosure, I'm one of those caught in the gap. I would love to pay for my kids education with a benefit I will never use. And I know I'm not the only one.

The second area is much more sensitive. In 1981, a court case [ McCarty v. McCarty, 453 U.S. 210 (1981)] determined that military pensions were not actually divisable assets in a divorce. They had never been considered so since the first pensions were issued in the 1800's. The U.S. Supreme Court upheld the fact that military pensions were the property of the service member who earned them, and not the spouse. In response, Congress pushed through a badly worded, confusing and now infamously abused law, the Former Spouses Protection Act (FSPA). The FSPA basically overrode the Supreme Court decision, by backdating the 1982 law to one day prior to the Supreme Court decision. The intent was to ensure that housewives who spent twenty years raising children and moving from military base to military base only to be divorced by an ungrateful spouse at the last minute would not be left penniless. In the era before the 1980's, when most women worked in the home, this made a lot of sense. What did not make sense is that the FSPA did not apply before 1981; in effect, it allowed anyone who received a retainer pay (technically, military retirees are only "retired" at 64; before that date, they are subject to recall to active duty and are being paid a "retainer." ) before the law took effect (e.g. the guys who dumped their home-bound wives at the last minute) to keep their money. It only took money from those who retired after 1981.

I, like many of my fellow military retirees, did not fully understand the FSPA until I went through a divorce. The FSPA does not consider situation or condition (adultery is treated the same as a mutual split due to incompatibility); it does not consider remarriage of the former spouse, unlike the retirement programs of other US government organizations; it does not consider either the sex of the spouse; it does not address the possibility of multiple marriages to military personnel (there is a case where a former spouse is drawing three 50% retirement checks from the US government and there are many cases where two checks are being drawn); and it is not based on children in the home or child custody. Lastly, what many do not understand, is that there is no magical year limit for a former spouse to claim a portion (usually 50%) of a servicemembers retired pay); a person can be married to a someone in the military for a single day on the first day they enter the military, and can appear 20 years later to claim 50% of their retirement from a state court (however, they cannot apply for direct payments from the Defense Department unless they have been married 10 years).

The world, including divorce laws and child support laws, have changed substantially since 1981. Most military spouses have jobs outside the home, just like the rest of America. Child custody does not automatically go to the mother anymore; father's rights have increased greatly in the past 30 years along with societal understanding that gender does not automatically equal perfect parenting. The initial law was intended to protect women from being abandoned by military husbands, but today's military is gender-integrated except for a few fields. Consequently, women in the military are returning home from Iraq or Afghanistan to find philandering civilian husbands who happily demand half of their hard-earned retirement pay for life. That's right--if you get the money, you get it forever. The only way the retired soldier can get her retired pay back is if the former spouse dies.

Division of military retired pay does not consider alimony, marital asset division or child custody. Cases abound where the retired service member not only loses 50% of their retired pay, but has custody of the children and has to pay alimony to the former spouse. Luckily, alimony and child support are determined by comparing income; sadly, the FSPA is not. Divorce laws have changed over the decades to address changes in American culture while the FSPA keeps to a model of the nuclear family that disappeared around 1965.

The FSPA has become such a problem for service members, that the New GI Bill has explicit provisions to prevent the division of educational benefits in event of a divorce. Numerous Congressional bills, along with appeals to the Supreme Court, have attempted to modify or outright repeal FSPA, but have been blocked for years by people who think that the FSPA 'protects women and children'--when in fact it does not. What it does is unfairly punish those who have served and acts as an impetus for the upswing of military divorce cases in the recent years.

What I propose is that the either Congress outright repeal the FSPA and abide by the U.S. Supreme Court decision (not very likely) or that Congress update and modify the FSPA to meet the changing needs in American society. The FSPA benefits need to cease upon remarriage or entry of the former spouse into a condition similar to marriage (cohabitation should not be a loophole) just like Social Security benefits do. This will put the military retiree in the same framework as other members of the U.S. government. Gender should not be a consideration in the FSPA; this is not the 1950's and women are not only working outside of the kitchen, but are retiring from the military in large numbers. Child support should not be a consideration either, as child support laws in most states are based on income (of which retirement pay is part; this prevents a "double hit" by the service member paying child support and giving up 50% of their retirement).

Congress needs to fix the gaps in the New GI Bill to cover those who served after 9/11 but before August 2009. This is an easy fix compared to the FSPA. The FSPA is an unnecessary and unjust law that surreptitiously bypassed the decision of the Supreme Court and is obsolete in today's society. It needs to be repair or repealed to recognize the changes in American society that no-fault divorce and community property laws now recognize. Let military service members keep their retired pay. They earned it. Let the same laws and regulations that govern other parts of the Federal government be applied to them as well. Do not let the fact that they wore a uniform mean they must be specially targeted, when others are not.

Comments

[milkman]

HuffPost's Pick

I agree with Col Mackey. Pat Schroeder was no friend of the American soldier. She was a friend of the soldier's spouse. Back before Schroeder (BS) a spouse who was married to a soldier for his 30 years of military service was entitled to nothing if the soldier chose to dump her for someone younger after his career. Schroeder was right to fight for that spouse. However FSPA went way overboard. Now if you are a soldier who gets married at the end of your career, say at the 19 year point, and are married for one year, your spouse is entitled to the present value over 30 years of 1/2 year of your retirement. It doesn't sound like much but if you're an 05 like Col Mackey it can add up to over $ 50 thousand. The spouse in this example didn't have anything to do with your career for 19 years as you worked and fought for your country why should she receive any of your retirement? It's not fair Pat Schroeder. The military doesn't educate soldiers about this marriage penalty. It should.

[Robert Mackey - Huffpost Blogger]

Good points all milkman. What was intended as a law to protect women and children, ended up as law that basically denies due process to veterans. The changes in state divorce laws since 1981, especially in the focus on balance between spouses and increases in child support (as an aside, a former spouse can fill in a form and have child support taken directly from a veteran's retirement check--this prevents a veteran from being a dead-beat parent) have made the FSPA moot. Courts can ensure that spouses and children are cared for without taking a veteran's well-deserved retirement pay.

[LeftRight]

I don't know how it's done everywhere, but I do know that when my wife divorced her ex, the judge assigned her a percentage of his pay, based on how many months they were married (with him in the miltiary) divided by how many months he was in total. It worked out that she gets less than 30% of his retirement, and it would have been a smaller percentage if he'd gone on to serve more than 20 years.

[Robert Mackey - Huffpost Blogger]

true enough; some states (but not all) will simply calculate the number of months the marriage lasted and when the person was in the military (e.g., if the soldier was on active duty 20 years and married 10, it would work out to be 120 months, or 50% for the split). However, that isn't in the FSPA but something states have started doing when they realized how basically unfair it was. There have been cases (rare) that the judge has determined all of the retirement pay can go to the ex-spouse, for whatever reason. All the FSPA says is that DoD will only directly pay 50% to a former spouse; it does not limit how much can go to a former spouse. In other words, the judge could easily order 50% to be paid directly by DoD, the other 50% to be paid by the military retiree. In effect, the retirement (which has 0 value until you reach 20 years) is treated like a house, boat, car or other physical asset in a divorce. However, some states prevent division of retirement from non-military sources in a divorce (such as a union pension) but under the FSPA can and do divide military pensions.

[jqcitizen]

The best way to help veterans is to quit creating them.

The real creators of war are those that never have to fight one but certainly enjoy the benefits.

Hopefully everyone in this country will think about the consequences of 'Shock and Awe' and the individuals that dreamed it up. -None of them were VETERANS.

[Robert Mackey - Huffpost Blogger]

true enough. thanks for the comment!

[Schaz]

HuffPost's Pick

I was on active duty when Pat Schroeder pushed it through, and I was shocked that it passed. The arguments that the "retainer" was reduced pay for reduced service went nowhere. And though 1982 might sound like the olden days now, I was there -- this was not the 50s, where the majority of women were housewives with no self-sufficiency.

Not long after it passed, there was an AF officer who turned in his commission short of 20, allegedly to circumvent it. (He'd rather forgo his retirement pay than pay so much of it to his ex-wife.) The judge ruled that he ~could~ have retired and that he was obligated to pay her for her share of the "property" anyway. It was in the AF Times, and that story scared us all.

Alimony and child support, I understand (although I have a personal objection to alimony, since I believe every adult has the responsibility of supporting themselves), but to claim that a spouse is entitled to the other's military pension is just wrong.

[Robert Mackey - Huffpost Blogger]

You are exactly right; I've known many soldiers who have left the military at 18-19 years to prevent a former spouse from getting their hands on the retirement pay--in some cases, the divorce had taken place 15 years before and both parties had remarried and started new families. This didn't stop them from demanding 50% of the pay based on their "rights."

[omaro]

Undoubtedly, I read too many murder mysteries, and so tend to see motives for murder everywhere. But, seriously, if former spouses can collect these benefits under some of the circumstances you describe, doesn't it seem like a motive for foul play?

[Robert Mackey - Huffpost Blogger]

Interesting hypothesis. I do know there have been murder cases over spouses (and their boy/girlfriends) killing service members for the military life insurance. I would not doubt it at all; especially when the service member is basically forced to buy 'insurance' on the retirement pay.

[LeftRight]

To be fair to those former spouses who were able to work while their service member served, most are able to WORK, but almost none are able to have a CAREER, which is another point in favor of the FSPA.

In fact, I would keep it (though limit it based on time married. If you were married less than 10 years, nothing, if you were married more than ten but less than 20, some sort of sliding scale) but I would provide for concurrent receipts. Right now if you retire from the military and go to the VA and get a disability payment at a rate of less than 90%, the DoD will reduce your retirement pay, dollar for dollar, based on the amount the VA is giving you. This will also reduce your former spouse's share. I propose that BOTH the VA and the DoD pay out, which will ensure that more retired vets are able to afford to have basic living, while also ensuring that the former spouse's don't lose theirs.

[Robert Mackey - Huffpost Blogger]

Good points all. I believe the Concurrent Reciept rate is now 50%, none of which can be touched by a former spouse. You do make an excellent point about careers, but that then begs the question, what happens if the spouse had a career? Would it be fair for a retired Sergeant First Class who is married to a surgeon to give up half of her retired pay just because she made a mistake in who she married? The current divorce laws are pretty much no-fault except for a few states--which means no one should get punished for the divorce. This is very different from the situation in 1981.

Thanks again for your thoughtful reply.

[LeftRight]

Well, let's look at my wife. She was married to a Navy Chief (who made the rank just before the divorce was finalized) She put her education on hold (permanently, I'm afraid, she will never go back and get her medical degree), she worked several jobs while they were married, but every time he transferred she was unable to transfer, and had to quit and get a new job at a different company. That's what I mean about Careers, in that while you can transfer your 401(k) around, you cannot be vested on day one.

In your scenario, no it wouldn't be fair, but I don't think they should just junk the law, I think they should make it more a judge's discretion.

And if they've made concurrent receipts down to 50%, I hadn't heard about it. It wouldn't affect me, I'm 30% and not retired, but still.