Written by Lisa Chedekel
When the state Department of Veterans’ Affairs recently advertised a job opening for a veterans’ service officer, 73 veterans applied, many of them younger men and women who had served in Iraq and Afghanistan.
While they came from different backgrounds and zip codes, many had a common trait, Veterans’ Affairs Commissioner Linda Schwartz said: “They are wound tighter than a clock. They’ve deployed two or three times, had a successful military career, and now here they are home, struggling with the aftereffects, looking for jobs. . . We are seeing a large group of people who are really on the edge.”
Some of those people—more than 1,000 a year, according to estimates—have landed in Connecticut’s criminal justice system, often charged with lower-level crimes such as DUI, disorderly conduct or breach of peace.
Starting this month, Connecticut will follow a number of other states in beginning a program aimed at identifying veterans who are arrested for minor crimes and diverting them from jails to treatment. The state’s initiative has an unusual twist, allowing veterans to use the Accelerated Rehabilitation (AR) program twice, rather than just once. AR allows low-risk defendants to complete community treatment programs and avoid prosecution.
“It’s a really important change for a group of people who can benefit from services already in place,” said Margaret Middleton, executive director of the Connecticut Veterans Legal Center, which worked with the Veterans Legal Services Clinic at Yale Law School to lobby for the veterans’ bill.
“Given the high incidence of PTSD and stress that our veterans are experiencing, we’re concerned that their first introduction to the mental health system should come before incarceration, where possible.”
The new diversion program coincides with a national study showing that Iraq and Afghanistan war veterans who have anger and irritability associated with combat trauma are more than twice as likely as other veterans to be arrested. The new study of a national sample of nearly 1,400 combat veterans found that while 9 percent overall reported being arrested since returning home from deployments, 23 percent of those with high irritability connected to post-traumatic stress disorder (PTSD) reported being arrested.
“Clinicians should be aware that veterans with PTSD who report very frequent symptoms of anger and irritability may be at increased risk of engaging in criminal behavior,” the study, published this month in the Journal of Consulting and Clinical Psychology, concludes. The research team, led by the University of North Carolina- Chapel Hill School of Medicine, also noted strong correlations between criminal behavior and factors not related to military service, such as a troubled family background or history of substance abuse.
The researchers recommended that the courts and VA outreach programs “routinely recommend interventions targeting symptoms of anger and irritability.”
In Connecticut, which has more than 245,000 veterans, 16,000 who served in Iraq and Afghanistan, the new initiative will allow defendants to access supervised diversion programs, which offer mental health treatment, without requiring that they have a formal psychiatric diagnosis. As veterans are identified as eligible, court support officers will work to connect them with existing drug-treatment programs and other services offered through the VA, the Connecticut Department of Veterans Affairs and the state Department of Mental Health and Addiction Services. That process has already started, with the diversion rules taking effect Oct. 1.
In 2008, Connecticut was one of six states awarded a federal grant to establish a jail diversion program for veterans with trauma-related symptoms that contributed to their criminal behavior. Pilot diversion programs have been established in the New London, Norwich, Danielson and Middletown court districts.
Schwartz said the new legislation comes after four years of failed attempts to establish statewide veterans’ diversion programs or special veterans’ courts, which are in place in other states. Veterans’ courts are typically separate dockets for defendants who are veterans and have legal issues related to PTSD, such as drug addiction or mental illness. There are now more than 95 such courts in 27 states, according to the National Association of Drug Court Professionals (NADCP).
Schwartz said that while special courts are one approach, the new legislation means “every court in Connecticut is now empowered to be a veterans’ court.”
She said she has been concerned about reports of younger veterans engaging in “thrill-seeking behaviors,” such as reckless driving, vandalism and petty larceny. “We’re seeing a lot of the low-level stuff—substance abuse, DUIs, speeding, breach of peace. Some of these veterans don’t have any idea it’s connected to their (military) service.”
The majority of combat veterans are not diagnosed with PTSD, and most are never arrested. But for those who do have the disorder, past studies have shown a correlation with arrest rates. For example, research has shown that 50 percent of Vietnam combat veterans with PTSD have been arrested at least once.
The diversion initiative is expected to save the state $1.2 million in fiscal year 2013, and $2.5 million in the following year, largely because treatment is cheaper than incarceration, according to the Office of Fiscal Analysis
I feel sorry for the Vets but crime is a crime. I read where Vets killed spouses and others and did really bad things. Jail is the place for them not this sympathy that Connecticut has for murders and criminals that are not Vets or may extend even to Vets now and of years back before this was decided. Vets are not the problem crime is and Connecticut has to start dealing with it instead of making everyone have a excuse for their bad behavior.
I served in Afghanistan during my time in the military and as a cilvian. I have been through a lot over there and I can home because I was laid off and now I tried to go to court to reduce my alimony payment and after 7 month my ex got a lawyer that was paid by my fiance ex and got the judge to issue her the 1300 a month plus the all the back pay and I have to pay her 3000 in 45 days or I am going to jail. I am currently using my GI Bill and my unemployment just ran out. So the only money I have coming in is the avg amount of 900 a month from the GI Bill. So with less then 6 months left on my degree I going to be put in jail and not going to be able to Finnish this quarter. Then I will fail all my classes and my 4.0 avg will be gone. Then I will have to pay back that quarter to the VA because I would have failed all my classes. I felt such disrespect from the judge. He did not and would not take anything I brought in into account. I even brought a case law that was similar and that was not allowed to be used. He even started righting out his decision while I was still trying to plee my case.
It does seem that the program is limited to what they refer to as minor offenses and I am sure that murder is not considered minor. Maybe we simply need to remove these minor offenses from the list of misdemeanors.
Those many problems faced in veteran’s court can be eliminated by fair and equal justice. A disabled veteran when returning home may face one of their toughest battles, facing a judge in divorce court trying to keep his or her VA disability compensation from being awarded as alimony. Something that every citizen wishes for, is that we do everything possible to help our veterans.
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The statute which disabled veterans’ rely on is 38 USC 5301. Nonassignability and exempt status of benefits. “Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law,.. a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.
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Is the state violating the law? As read, 5301 it is quite clear. But when a disabled veteran appears before a judge and opposing attorneys, tried is every interpretation of law possible to win judgment and secure as alimony award a veteran’s disability compensation. What about child support? Should the veteran be responsible for that? Many veterans have argued 5301 exempts child support as well. The initial focus however, being on those veterans” not having child support as an issue, but this evolves later.
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Opposing lawyers, state court judges and the ex-spouse, their arguments rely on states rights, stare decisis, forum shopping, contract law, etc., and finally almost in all of these cases, the courts will rely on Rose v. Rose. A disabled triple amputee veteran, blind in one eye, requiring constant care, Charlie Wayne Rose, was sent to jail for failing to pay alimony and child support. Released after a short period when he agreed to relinquish his disability compensation for child support.
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However, in support of alimony only, having no child support issues, divorce courts, judges, lawyers, most always refer to Rose v. Rose, a child and alimony support case, because it’s available, convenient and will prevail. New Hampshire, Brownell v Brownell, “Lower courts have repeatedly implemented Rose, and an “overwhelming majority of courts” have held that veterans’ disability payments may be considered as income in awarding alimony.” Brownell was not a child support issue, but you did notice, the opposing lawyer managed to bring up Rose v Rose which was a child support issue. Brownell, of course lost a portion of his disability compensation as alimony.
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But this is not how the VA General Council John Thompson had interpreted the Rose case. 8/4/98 testimony of Congressional and Legislative Affairs statement of John Thompson, acting General counsel Department of Veterans Affairs before the House Committee on Veterans Affairs. Mr. Thompson speaking on the subject, disability compensation may be attached. In clarifying for the VA, its legal definition, stating, “The sole exception is that VA compensation received in lieu of waived military retired pay can be garnished in order to satisfy court-ordered child support and alimony obligations.”
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Mr. Thompson then states, “VA benefits, including even disability compensation received in lieu of retired pay, are also protected by Federal law from court-ordered divisions of property upon veterans’ divorces. However, The United States Supreme Court ruled in Rose v. Rose 481 U.S. 6219(1987) that state courts are not precluded from setting child support obligations at such levels that veterans would necessarily have to use some of their disability compensation to meet them.”
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Veterans Administration counsel Mr. Thompson’s explanation of “sole exception” is exactly what it is, which involves two (2) conditions… before “VA compensation received in lieu of waived military retired pay can be garnished in order to satisfy court-ordered child support and alimony obligations.” Two (2) conditions, child support and alimony. For those disabled veterans’ having no child support issues, this is not that “sole exception.” The courts in many cases do not make any exceptions .
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A defense in protecting a disabled veteran’s compensation is available, that of “due process”. As well as mentioning other claims, which as you read exposes the VA’s lack of oversight of the it’s rules and regulations and exposes the illegal state court rulings interfering with VA medical procedures regarding disability compensation which has led to “clear and substantial” major damage to federal interests.
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State court rulings awarding disability compensation are routinely processed by the VA, the governmental entity, in spite of 38 USC 5301, and VA General council’s precedential interpretations, VA regulations, laws on the books, and the many years of disabled veterans complaints.
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“Clear and substantial” major damage to federal interests occurs when state court judges make lasting decisions, partly based on Rose v. Rose, that seriously impact disabled veterans’ rated compensation and complicate Veterans Administration goals, and responsibilities. Upsetting, by overruling VA medical compensation decisions, which involve many hours of work that VA medical professionals have invested in the medical care, control, follow-up, and rehabilitation of disabled veterans. All this happens with VA complicity, when a state court, arbitrarily is allowed to take away a veterans VA disability compensation in third party alimony awards in violation of….. 38 USC 5301. Nonassignability and exempt status of benefits, and…. 38 USC 1155 Authority for schedule for rating disabilities. “However, in no event shall such a readjustment in the rating schedule cause a veteran’s disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran’s disability is shown to have occurred.” 42 USC § 407 – Assignment of benefits, carries similar language.
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Reduction in disability compensation cannot be “reduced unless an improvement in the veteran’s disability is shown to have occurred.” When processing a reduction order, the VA would be violating the regulation 38 CFR 3.105 (e) when no medical evaluation has been ordered showing any physical improvement.
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To a veteran his total disability compensation payments is contingent upon what VA medical professionals determined the disabled veteran injuries should be compensated for. Forgetting for the moment, any rating system, to the veteran who loses any portion of his disability compensation payments by the courts, he has been unlawfully downgraded and now any disability rating is totally meaningless. What happens to a disabled veteran’s health, piece of mind, overall well being that the courts now have put in jeopardy, contributed to the never ending psychological and devastating consequences of what the courts had dealt, affecting thousands of disabled veterans? A “cause and effect” situation. Where is it written?
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Where is it written, the VA authority, when a state judge can arbitrarily overrule the VA, the VA medical doctors and other medical professionals’ that determine a veterans’ medical rating compensation? His future now without the compensation that was by law assured? Tax payer monies mandated by Congress purposely, as veterans service compensation for injuries received, life altering as they are, now being diverted purposely by state courts to healthy third parties in many cases, in a determined and engaging violation of the law.
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Which brings up “due process”. How is it, that state court judges can arbitrarily and capriciously award as alimony, with the mere wave of a hand waive away a portion of a veteran’s VA disability rated compensation, moneys in the form of disability compensation, the disability rights of a veteran, whose disability rating that maybe determined and factored in as critical? Judgment as if all disabilities are exactly the same? State court judges, are in reality, playing doctor, without medical license or knowledge .. a practice forbidden, providing penalties by law , and border on medical negligence. All without any input, or approval from the Veterans Administration, overstepping those whose authority it belongs, the dedicated VA medical professionals, in the practice of medicine, re-evaluation, and rehabilitation of the veteran. While at the same time violating federal law, 38 USC 5301, 42 USC 1408.
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The ACLU position, which makes the point, “Federal Court Hears Arguments In Case Defending Transgender People’s Right To Access Medical Treatment in Prison.” Feb 7, 2011. ACLU And Lambda Legal Argue That Doctors, Not Legislators, Should Determine Medical Treatment.
“We hope this court will affirm the principle that is so important to all of us – doctors, and not legislators, should decide what medical treatment is critical for their patients.”
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State court judges may have adjudicated “due process” in income support distribution, divorce finalized and ended. However, this is only one part of two (2) separate “due process” issue proceedings. This is not just a one “due process” fits all situations, as state court judges may want you to think. When a veterans disability compensation is court ordered as part of any support distribution, before that “consideration” of any VA connected disability compensation, as part of any alimony award, there is a separate “due process” right, to fair adjudication of a veterans’ claim for disability compensation benefits. This has never been done. Entitlement to benefits is a property interest protected by the Due Process Clause. To allow what has been happening, was it the intent of Congress that state court judges substitute their judgment for the judgment of VA doctors and medical professionals? I don’t think so!
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As you can surmise from what you have read, this is an issue involving veterans’ from every state, and a mistaken belief by state courts that the solution to this problem can only be solved on a federal level. However, courts recognizing the “due process” and property rights of the disabled veteran, the result being the reality that disability compensation is then exempt in both alimony and child support, confirming Congress’ intent in the wording of 38 USC 5301
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PHILIP E. CUSHMAN, v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, August 12, 2009.
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http://linehanpc.com/vadisabilityclaim/cushmanvshinseki.html
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“It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law. See Atkins v. Parker, 472 U.S. 115, 128 (1985); Mathews v. Eldridge, 424 U.S. 319, 332 (1976)”
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Just to be clear, many states do observe and respect federal law 38 USC 5301. Two cases not involving child support. California, Piner v. Piner, the judge had respected federal law and disallowed the use of a veteran’s disability compensation to be used as alimony. However, the judge gave him an ultimatum, forcing the veteran having to use his disability compensation in alimony support, by a set-off or assignment … or go to jail! To put it in prospective, the state court judge refused to violate federal law, but expects the veteran to violate that same law. New Hampshire, if Ronald Brownell, should refuse to hand over his disability compensation as ordered by the court, the judge would hold him in contempt of court, and can be ordered to jail. If, instead Brownell was forced to pay alimony reluctantly by the threat of jail time, he too, will violate federal law 38 USC 5301, “Nonasignability and exempt status of benefits.” This would end with “due process”.
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Did Charlie Wayne Rose, the severely disabled veteran, mentioned earlier, have this “due process”? I can find no mention of it in case documents available.
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In conclusion, our disabled men and women veterans, both returning and those having served in Afghanistan, Iraq, and past wars endure facing the stress of both the emotional and physical issues of rehabilitation, unemployment, future uncertainty, suicide, PTSD, self-worth leading to depression. For many, adding are years of facing a far greater emotionally charged setting, a divorce court battle. Financially and psychologically draining, fighting for the right to keep their earned VA disability compensation, against court room rulings that fail in their duty to advise and observe its duty to procedures of due process rights, and the court’s proper place in a medical decision over the rights due a disabled veteran.
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The Veterans’ Administration, as is their duty by law, has administratively respected state court judgments and processed illegal state court ordered judgments in awarding a veteran’s VA disability compensation as alimony child support. Under the circumstances of law as described, it is now up to state courts, state court judges, to uphold their sworn obedience and respect for the law. Now that you have this information, it is hoped disabled veterans’ get the respect that they sacrificed, fought for and deserve.
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A decision by the courts in recognizing veterans ‘due process” rights would forever settle once-and-for-all something that disabled veterans have been waiting for many years to confirm, 38 USC 5301 means what it says.
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September 3rd 2012 Jack Elliott Jr. Associated press
MISSISSIPPI. SUPREME COURT OVERTURNS DIVORCE DECREE INVOLVING VETERAN’S DISABILITY BENEFITS,
The Mississippi court reversed a decision in a Lamar County divorce case, citing a U.S. Supreme Court ruling in 1989 that federal law does not permit state court divorce decrees to divide the disability benefits. The court said federal law pre-empts state law.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
December 13, 2011—VETERANS FOR COMMON SENSE, VETERANS UNITED FOR TRUTH, INC., v. ERIC K. SHINSEKI, Secretary of Veterans Affairs. “VCS’s complaint sounds a plaintive cry for help, but it has been misdirected to us. As much as we may wish for expeditious improvement in the way the VA handles mental health care and service-related disability compensation, we cannot exceed our jurisdiction to accomplish it. ….As much as we as citizens are concerned with the plight of veterans seeking the prompt provision of the health care and benefits to which they are entitled by law, as judges we may not exceed our jurisdiction.”
States… victimizing veterans.
Article VI U.S. Constitution: “This Constitution and the Laws of the United States which shall be made in Pursuance thereof:…under the Authority of the United States, shall be the supreme Law of the Land, and Judges in every States shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
The reason disabled veterans are denied benefits…. Oregon.
Guided by state and federal law, the promised protections, the due process (the conduct of legal proceedings), are legislated into Oregon law supposedly to protect Oregon’s veterans benefits. Activist state court judges, defying all reason, will have nothing to do with legislated law. With purpose and their vision of law, with specific intent, trashed enacted laws (listed below) to punish Oregon’s disabled veterans for claiming disabled veterans VA compensation benefits as exempt (38 U.S.C. 5301(a)) in divorce proceedings.
How can there be any meaningful reform at the VA? When veterans disability compensation payments, enacted by Federal statute, the purposes and objectives of Congress, administered by Veterans Affairs, it’s governing control (38 U.S.C § 1159) purposely handed over to state divorce courts, without thought. And all the while with VA consent, judges continue, to rule according to,… a whim, bias’… dislike of the law, or the disabled veteran and their issues. Making new law in the process. Where is it written in States rights, is the Veterans Administration, the VA authority, when a state judge can “hold oneself out as qualified,” and arbitrarily overrule the VA? Second guessing the VA medical doctors and other medical professionals’ that determine a veterans’ medical disability rated compensation? VA compensation payments primarily and purposely for maintaining the health, care and well being and overall rehabilitation of disabled veterans. A health care system with congressional oversight and regulations, allowing state court judges to do damage, and with the wave of a hand to the perhaps punish, in order to accomplish the task of plaintiff lawyers in awarding alimony.
An example of a “whim”
OREGON. Marriage of KAREN M. LANDIS, and JAMES E. LANDIS
“Husband, according to his affidavit, did not serve in the military long enough to receive retirement pay. Like many veterans who receive disability benefits, his are neither directly nor indirectly ‘retirement pay.’ They fall outside of USFSPA’s protective scope.”
10 USC 1408. Payment of retired or retainer pay in compliance with court orders; states, “…authorizes state courts to treat as community property disposable retired or retainer pay.” The Mansell v Mansell decision, “… specifically defining such pay to exclude, inter alia, any military retirement pay waived in order for the retiree to receive veteran’s disability benefits.” VA disability compensation is not, or considered “disposable pay”. Clearly disabled veteran’s James Landis and James Barclay are considered “retired” (10 USC 1201). Both fall under USFSPA’s scope of protection along with the thousands of other Oregon’s disabled veterans.
How Oregon’s court judges will explain the reality of VA disability compensation to a disabled veteran after losing both feet to a roadside bomb in Iraq. A lifetime disability after only serving a total of 5 months in the military. This veteran “did not serve in the military long enough” is the reason Oregon courts rule a veteran’s VA disability compensation is divisible in divorce. The judge is supposed to do justice, not make it up.
Oregon disabled veterans are denied VA benefits. Illegal rulings, like a cancer spreading among states. Disabled Oregon Air Force veteran James Barclay argued at his Linn County Oregon trial that to include his VA disability pay in calculating spousal support would violate the law that excludes disability compensation from the definition of “net disposable income” considered divisible under the USFSPA. Clearly, VA disability compensation is not “disposable pay” (10 USC 1408). Contrary to the law, the Oregon court ignored that argument, as did the Court of Appeals of Oregon, affirmed this decision. This did not need to happen,… if only Oregon applied the promised protections according to Oregon law.
As a result, these Oregon laws do not apply to veterans.
OREGON LAW
18.600 Definitions. (b) “A benefit payment from the United States Department of Veterans Affairs that is protected under 38 U.S.C. 5301(a);”
34 § 411.837¹ Compliance with state and federal laws required
10 § 409.040¹ Federal law supersedes state law.
26 § 279A.030¹ Federal law prevails in case of conflict
ORS 18.345 Exempt personal property generally. “(m) Veterans’ benefits and loans.”
ORS 18.845 Notice of exemptions form; instructions for challenge to garnishment.
“State and federal law specify that certain property may not be taken.
(21) Veterans’ benefits and loans.
(22) Medical assistance benefits.”
State court judges took an oath,… and swore to protect, “arising under” the 14th Amendment to the Constitution, “… nor shall any State deprive any person of life, liberty, or property, without due process of law nor deny… equal protection of the laws.” Clearly, as illustrated they continue to violate their sworn duty to “due process” and its protections of veterans earned disability rights.
“…No ex-post facto law, or law impairing the obligation of contracts shall ever be passed, ….” Yet, as Oregon courts have with all enacted laws protecting the disabled veteran, unashamedly, entirely disregard Section 21 of the Oregon Constitution , the “obligation of contracts,” by direct interference in a federal contract. That is, the contractual enlisted promises (DD Form 4/1 Aug 1998) made by the United States government, the Veterans Administration, to the disabled veteran, as well, all veterans.
This has been a disabled veteran’s view, the reality of law. As a Korean era veteran, neither disabled, or in any divorce action, however, very defensive.
William Heino Sr.
The reason Veterans disability compensation is not protected.
The Veterans Affairs Secretary is shielded from undertaking any response to illegal court rulings, whether violations of state, federal law, or the United States Constitution in protecting veteran’s benefits from the whim’s of state court judges, or the intent of Congress. Waffling, behind the Veterans Judicial Review Act (“VJRA”) 38 USC 511. As once VA benefits have been awarded, “.. the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.”
William Heino Sr
A flawed disabled veterans federal agency directive
For decades, a flawed federal agency directive have cost disabled veterans their benefits.
September 25, 1998.
TO STATE AGENCIES ADMINISTRERING CHILD SUPPORT ENFORCEMENT PLANS UNDER TITLE IV-D OF THE SOCIAL SECURITY ACT AND OTHER INTERESTED INDIVIDUALS.
SUBJECT: Obtaining financial support for children from benefits paid by the Department of Veterans Affairs.
BACKGROUND: Section 459 [42 USC 659] “Consent By The United States to income withholding, garnishment.. for enforcement of child support.. ], of the Social Security Act, as amended provides for the garnishment of certain Federal payments for the enforcement of child support and alimony obligations…”
Directive enforcement based on Example #2. Department of veterans Affairs… Pursuant to 38 USC 5307 [Apportionment], and 38 CFR 3.450(a)(1)(ii), “provide that, if the veteran is not residing with his or her spouse, or if the veteran’s children are not residing with the veteran and the veteran is not reasonably discharging his or her responsibility for the spouse’s or children’s support.”
The Department of Health and Human Services Child Support Enforcement agency reasoned, 38 USC 5307 “apportionment” as an enforcement issue under their directive to State agencies. SUBJECT: “Obtaining financial support for children from benefits paid by the Department of Veterans Affairs.”
38 USC 5307 is a Dept. of Veterans Affairs internal administrative law. Apportionment is “as may be prescribed by the Secretary,” having absolutely nothing what-so-ever of being in a court room, or an issue of garnishment. Administrative law adjudications are not part of enforcement. Under the “apportionment” statute “as maybe prescribed by the Secretary” there is no enforcement, only administration.
As anybody taking the time reading the statute, 38 USC Sec. 5307 Apportionment of Benefits, it concerns a disabled veteran that is institutionalized, hospitalized, incompetent or unable for what-ever reason to make decisions personally. The inability to function, restricted in discharging his or her normal personal business, household, daily responsibilities. Therefore, any pension, compensation, or dependency and indemnity compensation may be apportioned, not by any court, but as “prescribed by the Secretary.”
Since 1998, and most likely, beyond, lawyers, activist state court judges, and plaintiffs refer to this United States Department of Health and Human Services Office of Child Support Enforcement directive for guidance and preparation. A directive based on a purposely false, sloppy, inaccurate information (apportionment), deliberately to mislead disabled veterans and their attorneys, and setting the stage to partnership with every overbearing activist state court judge in the country to administer their justice.
Disabled veteran, Charlie Wayne Rose (1987) was done in by the United States Supreme Court, State of Tennessee, Dept. of Health and Human Services Office of Child Support agency, and Congressional Act 38 CFR 3.450 (a)(1)(ii) “The regulations broadly authorize apportionment if “the veteran is not reasonably discharging his or her responsibility for the . . . children’s support.” Rose, a disabled veteran, triple amputee, blind in one eye, requiring constant care, was jailed, lost his appeal in 38 USC 5301 protections of his VA disability compensation claim. It was this agency, Office of Child Support Enforcement, that provided highly inaccurate, false, and misleading information in a very questionable and inaccurate directive. “Apportionment” was used in the U.S. Supreme Court argument Rose v Rose 37 times. And it worked!
If this directive wasn’t a sloppy careless preparation of regulation law, it was then intentional, in order to mislead. Lost forever is veterans rights in protection of VA disability benefits, to fair and equal justice, by a regulation rewritten to falsely accuse and irresponsibly suggesting, “the veteran is not reasonably discharging his or her responsibility for the spouse’s or children’s support .”
Although “apportionment” has only one special meaning through the Congressional legislative intent in United States Code (38 USC 5307), however, the court in redefining it‘s special specific purpose, in order to force judgment, lacking was the compulsory constitutionally required legislative intent by Congress! Due process requires judicial review.Invoking 38 USC 7292, review by United States Court of Appeals.
Regretfully, it took this issue of a groundless, manufactured directive to reveal another means of the further undoing of veterans benefits by clever creative regulatory writing. This is not about child support, as there are other legal remedies available. It’s about the illegal expropriation of VA benefits and protections of the 14th Amendment.
As a veteran of the Korean conflict era, I am neither disabled nor divorced.
William Heino Sr.
Federal agencies ganging up on veterans.
When veterans’ are effected by federal agency proclamations that run counter to legislative intent and the best interest of the veteran it is up to every veteran, and veteran’s organizations to call out those who want to do harm by rewriting law and publishing inconsistencies and falsehoods as fact.
From the Office of the VA General Counsel, a “Summary of Law” dated April 2015.“Garnishment of VA benefits” STATUTORY PROVISIONS, “..Congress created an exception to 38 USC 5301(a)..” Specifically, suggesting 42 USC 659, (based on remuneration for employment,) as the Child Enforcement Act.“.. authorizes VA… to withhold, or garnish.. for alimony or child support. The statute does not require VA beneficiaries.. be employees of VA in order for garnishment..”
A Congressional enactment, Child Enforcement Act (42 USC 651). “This part is popularly known as the Child Support Enforcement Act. Authorization of appropriations.”
42 USC 659 gives ‘consent’ …..by the United States to income withholding, garnishment and similar proceedings for availability of federal compensation funds.
42 USC 651 Authorization of ‘appropriations’….. required for enforcement.
Both are administrative laws.
With proper legal consent, and appropriations, enforcement possible only with proper subject-matter jurisdiction in response to a legal State court order supported with the proper service of legal process.
VA Summary of Law “Although section 5301(a)(1) generally prohibits garnishment of VA benefits, the Supreme Court in ‘Rose v Rose’ held that state courts may enforce support orders against VA compensation payments under certain circumstances after a Veteran receives them.”
“Under the ‘Rose’ decision, state courts may consider the availability of VA benefits in determining the amount of a child support obligations and that,…. because VA disability compensation is intended to benefit both the Veteran and his or her dependents, ..”
The VA Office of the General Counsel’s (2015) ‘Summary of Law’ directive communicates 42 USC 659 as the Child Enforcement Act purposely to mislead and confuse veterans‘ into submission. The Department of Health and Human Services, Child Support Enforcement Agency (since perhaps beyond 1998), as well, intentionally publishes these false and misleading directives on a imaginative legal theory, a selective distortion of law using “apportionment” of VA disability benefits in enforcement proceedings of alimony/support. Happened in the 1987 United States Supreme Court Rose decision, applying “apportionment” throughout 37 times. And it worked! VA Summary of Law, “Under the Rose decision, state courts may consider the availability of VA benefits in determining the amount of a child support obligations… and that, because VA disability compensation is intended to benefit both the Veteran and his or her dependents, ..”
The VA General Counsel’s “Summary of Law” directive in brief lists 3 areas of veterans’ law, STATUTORY PROVISIONS, ROSE V ROSE, and APPORTIONMENT. A summary prepared with intentionally brief and carefully crafted false and misleading information, causing much anguish, and uncertainty among veterans as well as the public. Setting the stage for every activist state court judge in the country to bolster state court rulings unjustly in garnishing VA disability compensation benefits. Justice.. as administered, based on distortion and misrepresentations of law. An intentional crossing the line approach by a Federal agency to purposely trample veteran‘s into obedience by a fabrication of law. Lost forever are the veterans rights protections to their earned VA disability benefits, to fair and equal justice, by irresponsibly and falsely accusing veterans’ by suggesting “the veteran is not reasonably discharging his or her responsibility for the spouse’s or children’s support ,” (42 USC 651).
VA General Council’s Summary of Law is a deliberate attempt to browbeat veterans by publishing very questionable and inaccurate law theories, and the constitutional jurisdictional questions it brings. Victimizing veterans of their legal rights to VA benefits. It was the General Counsel’s reliance on 42 USC 659 “..an exception to 38 USC 5301.,” referenced by the “Summary of Law” that this reliance turned instead, from “..an exception” to “apportionment.”
“Summary of law” Footnote 7, “Apportion” 38 USC 5307 referencing only the reasons that apportion of VA compensation takes place. However, purposely left out, failed to explain.. under what conditions before the reasons for General Counsel‘s “apportionment” can take place? Leaving the impression “reasons” to any reader, without history analysis, as the final definitive legal enforcement regulation.
The conditions. “Apportionment” is a Department of Veterans Affairs administrative law (38 USC 5307), “…as may be prescribed by the Secretary.” Apportionment of benefits, takes place and occurs when a disabled veteran is institutionalized, hospitalized, incompetent or unable for what-ever reason to make decisions personally. The inability to function, restricted in discharging his or her normal personal business, household, daily responsibilities. Therefore, any pension, compensation, or dependency and indemnity compensation may be apportioned, not by any court, but “.. as prescribed by the Secretary.” Having absolutely nothing what-so-ever of being in a court room, or an issue of garnishment. Administrative law adjudications are not part of enforcement. Under the “apportionment” statute since there is no divorce, there is no enforcement, only administration. The entire “Summary of Law” is based on divorce in order to get at a veteran’s disability compensation by implementing “apportionment.”
However, if the concern of the VA General Counsel, was truly a support issue under (38 USC 5307) ‘apportionment’ a provision by statute is provided, namely 38 USC 1115 “Additional compensation for dependents”
Both, VA Office of the General Counsel “Summary of Law” and Rose v Rose, referred 42 USC 659 as a Child Enforcement Act, intentionally deceptive, added for effect. However, the Rose court determined that 42 USC 659, “…specifically exclude VA disability benefits..” (entitlement to which is based on remuneration for employment). Therefore, the Rose court administered judgment applying “apportionment,” introduced 37 times,… and it worked! Apportionment, (38 U.S.C. 5307) which has nothing to do with garnishment, is not mentioned in 42 USC 659 referred by General Counsel as the Child Enforcement Act.
Along with misfeasance, there is a obvious conflict with the VA General Counsel’s “Summary of law” stating, “..created an exception to 38 USC 5301.” by implication of 42 USC 659. Until, a “separation of powers” clarification is forthcoming, and why the VA General Counsel’s legal opinion of “apportionment,” remains unpublished in the Federal register, adjudication remains suspect.
Federal Register. September 28, 1999 Volume 64, Number 187 ‘Summary of Precedent Opinions of the General Counsel’. “The General Counsel’s interpretations on legal matters, contained in such opinions, are conclusive as to all VA officials and employees not only in the matter at issue but also in future adjudications and appeals, in the absence of a change in controlling statute or regulation or a superseding written legal opinion of the General Counsel.”
Federal Register: April 1, 1997 (Volume 62, Number 62)]
Questions Presented
a. May the action of a Department of Veterans Affairs (VA) regional office withholding a portion of a veteran’s compensation and paying it to the veteran’s former spouse pursuant to a state-court support order be considered an apportionment under 38 U.S.C. 5307?
b. Does the Board of Veterans” Appeals (Board) have jurisdiction to review a VA regional office decision to withhold a portion of a veteran’s compensation benefits pursuant to a state-court support order and 5 C.F.R. 581.103 and 581.402?
Held
a. The action of a VA regional office withholding a portion of a veteran’s compensation and paying it to the veteran’s former spouse, which was based on a state-court support order which the regional office misconstrued as requiring garnishment of the veteran’s benefits, may not be considered an apportionment action under 38 U.S.C. 5307.
This has been a VA “Summary of Law” directive based on a purposely false, sloppy, inaccurate information (apportionment), deliberately to mislead disabled veterans and their attorneys, and setting the stage to partnership with every overbearing activist state court judge in the country to administer their justice. This is similar in precisely the same deceptive logic and wording and the position taken by U.S. Department of Health and Human services, Office of Child Support Enforcement.
The VA General Council has distorted the reading and intermingling law, using “apportionment” purposely to get what the law will not give up. Let’s not let what our United States Supreme Court and the State of Tennessee did to Charlie Wayne Rose, a severely disabled veteran, ever happen again by the same tactics as described, and published by VA Office of the General Counsel, highly imaginative “Summary of Law.” Let’s leave “apportionment” where it belongs, as “prescribed by the Secretary.”
As a veterans advocate, a Korean era veteran, I am neither disabled or in any divorce action. The reality of law from the disabled veteran’s view,… it’s criminal
William Heino Sr.