What's Mine Is Mine, What's Yours Is Mine

[Larry]

The U.S. Constitution clearly states, that all laws must be dealt with in a uniform manner and that rulings based on our laws, must be uniform and consistent. It is very clear, the State Courts of our great nation are not treating members of the US Armed Forces in a uniform or consistent manner. There are outrageous tragedies created by various State Court rulings affecting our fellow brother and sister veterans. Rank, gender, race, time of rank while in service, ability or disability is to have no regard in divorce court rulings. There is today total disparity across the board; this law is unfair.

I am a retired/retained military veteran who served 22 years in the US Navy and 17 years so far on the permanent reserve list. My assignments included Operations Eagle Pull and Frequent Wind during the evacuation of US citizens from the US Embassy in Danang, S. Viet Nam to US Naval ships in the Gulf of Tonkin. During my career I logged over 5,000 flight hours during the cold war tracking soviet submarines that could have hit any US city with accuracy east of the Mississippi with nuclear weapons. I flew ASW missions through the Straits of Gibraltar, 500 ft off the water at night without any anti-collision lights or active sensors and off the coast of Norway, just off the tops of oil rigs, in the middle of the night with no lights and/or active sensors. I flew reconnaissance flights 7 miles off the coast of the Soviet Union, just outside of SAM range. Remember the KAL 747 that got shot down and the collision of the Chinese fighter with a US reconnaissance aircraft? It was my privilege to serve and protect the interests of this nation in return for a promised earned entitlement of Military Retired/Retainer PAY (MRP). The purpose of this letter is to express my frustration and anger in that I have never received my full MRP as was promised and the US Congress intended. I respectfully request Congress to take action to initiate repeal of the ex-post facto law that allows the unjust taking of my entitled retainer PAY for the benefit of a remarried non-military citizen for LIFE. I specifically refer to the Uniformed Services Former Spouse Protection Act (USFSPA) (Title 10 USC 1408 et seq).

In 1982 USFSPA was secretly added as a rider to the Defense Authorization Bill by a liberal Congress, then back-dated by 1 day before and to circumvent the 6-3 USSC decision of McCarty v. McCarty, 1981 which ruled MRP could NOT be treated as community property.

Federal law precludes a state court from dividing military retired pay pursuant to state community property laws. Pp. 220-236.

(a) There is a conflict between the terms of the federal military retirement statutes and the community property right asserted by appellee. The military retirement system confers no entitlement to retired pay upon the retired member's spouse, and does not embody even a limited "community property concept." Rather, the language, structure, and history of the statutes make it clear that retired pay continues to be the personal entitlement of the retiree. Pp. 221-232.

(b) Moreover, the application of community property principles to military retired pay threatens grave harm to "clear and substantial" [453 U.S. 210, 211] federal interests. Thus, the community property division of retired pay, by reducing the amounts that Congress has determined are necessary for the retired member, has the potential to frustrate the congressional objective of providing for the retired service member. In addition, such a division has the potential to interfere with the congressional goals of having the military retirement system serve as an inducement for enlistment and re-enlistment and as an encouragement to orderly promotion and a youthful military. Pp. 232-235.

USFSPA, the ONLY FEDERAL divorce law violates the 10th amendment and the equal treatment clause of the US Constitution. It usurps state courts in as much as before USFSPA, MRP could not be treated as community property because MRP cannot stand up to the most liberal definition of property. Retired veterans never actually retire but continue to serve in a reserve status for life and receive a monthly wage for their monthly availability to recall to active duty. Even 70 year-old Navy physicians were recalled during the Gulf War. There are NO employee contributions, NO employer contributions, NO interest bearing accounts, it is NOT a deferred payment but a reduce income for reduce services. Military service is unique, so is the MRP system. There are NO comparisons to any pension plan.

MRP is treated as INCOME by DFAS and the IRS and is then magically divided by state courts as marital property even though there is not one federal or state statute that refers to it as property. The USFSPA itself mentions MRP 65 times, property 0. MRP is then magically turned back into INCOME and 100% of the MRP is used to set higher levels of child support and alimony. USFSPA payments are in addition to alimony and any spousal support which have a limited amount of time. USFSPA payments are for LIFE without any regards to need, fault or wealth of the former spouse. The USFSPA never had a vote on the floor of the US House of Representatives. Never had a parallel bill in the house and retired veterans were denied testimony in subcommittee hearings.

I am angry that I was not allowed due process during this court action in that I was not made aware of the law’s existence unlike laws that impact all other federal employees. They all have FERS booklets that explain all the laws. How can that be? Because during my 22 years of active service, DOD never informed me about this law yet DOD requires mandatory briefs for Survivor Benefits Plan (SBP). Our military leaders always told us, "We take care of our own" What a crack of dog squeeze. DOD secretly supports the antiquated USFSPA. Secretary of Defense Donald Rumsfeld stated publically he knew nothing about it. USFSPA was never grandfathered in and was applied retroactively to hundreds of service members already retired with no mention of MRP in their divorce decrees.

As I have since learned, USFSPA was passed 30 years ago because the state of Texas refused to pass garnishment and alimony laws and a handful of Sr. officers left their military spouses pennyless. Officer wives were discourage from working outside the home, their only purpose in life was to provide cocktail parties for her husband's CO. USFSPA impacts far many enlisted than it does officers. Enlisted wives on the other hand did work outside the home to make ends meet and had careers of their own with pensions of their own that state courts are very reluctant to treat as community property in order to keep mostly women off their welfare rolls.

The law is not only unfair as written but attorneys misinterpret USFSPA in a way to allow State Courts to violate provisions of the law that was supposed to protect VA Disability Compensation. The state of Tenn. has thrown 100% disabled retired veterans in jail that refused to share their Disability Compensation with a former spouse. USFSPA specifically states no more than 50% (65% if child support and alimony were awarded) of the MRP can be awarded to the former spouse but state courts have been known to circumvent that provision as well. There have been cases where the state court awarded 100% of the MRP to a former spouse. There is no oversight and no way to challenge a federal law in a state court. An attempt by the USFSPA Legislation Support Group, ULSG.org to sue the Justice Department in 2004 resulted in costs that exceeded $400,000 to only find out retired veterans have no standing in federal court. When do retired/retained veterans get our day in court?

It is obvious to me that Congress does not fully understand what the USFSPA dictates nor how it is being applied by the State Courts. As the divorce rate continues to climb in the active duty Armed Forces, USFSPA continues to impact MRP system as a force management tool of military leaders and continue to affect retention of good quality professional military men and women. Although Congress and the DOD continue to try to ignore this as an issue, it is the reason many people choose not to pursue a military career. Suicide rates have skyrocketed but not one DOD report mentions the LIFETIME award of the service members retired/retainer PAY as a potential factor.

The amount awarded under USFSPA is based on the service member's rank at retirement (transfer to permanent reserve list) instead of divorce rank. This creates a windfall profit of 10s of thousands of dollars over a lifetime that were earned by the service member alone AFTER the divorce was final. What other part of our society pays a portion of their wages earned as property AFTER the divorce is final?

Military spouses who are foreign nationals and give up their US citizenship continue to draw Defense appropriated tax dollars overseas in countries that may not be friendly to the USA. Not so for the service member. If they give up their US citizenship, they are no longer eligible for recall to active duty and therefore not accountable under the UMCJ, lose their MRP.

Military spouses that are convicted of felonies continue to draw Defense appropriated tax dollars while incarcerated, service members do not because they are no longer recallable.

Military spouses can remarry a second or third career service members and draw USFSPA payments from multiple service members.

Abused spouses whose veteran spouse is convicted of a felony are paid by DOD and continue to have commissary and healthcare privileges, until they remarry. There is NO remarriage is the USFSPA, service members continue to support a former spouse and her/his new spouse for LIFE.

For additional information and to sign the Petition to Congress: http://www.ulsg.org
"When we assumed the soldier, we did not lay aside the citizen.” George Washington.

Don't give retired veterans a parade, help us get the benefits we earned. Go to web site http://usfspa-lawsuit.info

"Let us all hang together." Ben Franklin.

Sign Petition to Congress at http://www.petitiononline.com/USFSPA/petition.html

Write your Congress critter, we will have a bill again this year.

What's Mine Is Mine, What's Yours Is Mine
by Andrew Anthony Bufalo http://search.barnesandnoble.com/Whats-mine-Is-mine-whats-yours-Is-...