The Great Betrayal of Our Career Military Members

What each United States military member needs to know about the unjust taking of military pay by State Courts as marital (community) property.

It is now estimated that over 250,000 Career Military members are currently subject to monthly garnishment under the provision of the
Uniformed Services Former Spouses' Protection Act (USFSPA), Public Law 97-252.  

At the time of marriage, no one ever expects to become divorced. However, the fact of the matter is that nearly 50 percent of American marriages end in a divorce. The percentage of military members becoming divorced is even higher.

Betrayal by Congress to Those who continue to serve
by Lewis E. Pugh, Jr. CMSgt (Ret) U.S.A.F

The Armed Forces Voluntary Recruitment Act of 1945 (Public Law 79-190), Section 4, states: "Whenever any enlisted man of the regular Army shall have completed not less than twenty or more than twenty-nine years of active services, he may upon his own request, be transferred and retired shall receive, except with respect to periods of active duty he may be required to perform, until his death, annual pay. It should be noted that there is NO MENTION OF A MILITARY PENSION…

Therefore, military retired pay is being paid as a retainer compensation for a continued military obligation. It should further be noted that there were no federal funds established and set-aside for the individual military member’s retirement fund during active duty. How then can military pay, that which has been classified as a retired / retainer pay be considered marital property, to a former spouse for life, who has no federal contract agreement to perform military duty, much less abide by the provision of the  Uniform Code of Military Justice (UCMJ)?

Military members who make a career of military service by staying on active duty for 20 or more years receives a monthly taxable income, providing they agree to be transferred into a retired / reserve status for life.  The average monthly income that the career military member will receive is based on years of active duty and rank held at time of his / her request to be transferred into a retired / reserve status. This reduced military income does not come from a federal pension plan as so many are led to believe. Nor is this monthly military pay deferred income for past military services rendered. It is in fact a current income, earned daily, paid monthly and taxed by the IRS as current income. This military income can be and has been reduced and / or removed for failure to abide by the federal laws and regulations that control the earning of this military income. So how can State case law be allowed to consider military income as a marital property asset, especially since state Legislative Laws clearly state income earned after a divorce is not marital property.

On June 26, 1981 the United States Supreme Court ruled in the McCarty versus McCarty decision "that 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 division. The high court did not prevent state courts from awarding alimony, child support, and / or maintenance to a former spouse. Thus this ruling supported long standing court practice that military retired / retainer pay was not a community property asset!
 
If Congress doesn’t pass legislation to appeal the USFSPA law, then it won’t be long before it will become necessary to increase bonus money for reenlistment and a vote to return the draft. Maybe its time DOD surveys the troops to see how the USFSPA law has affected military moral in our career military force.

The United States Comptroller General stated in Decision B-236084, dated July 31, 1989 that military retired pay constitutes reduced pay for current reduced services, rather than a pension for past military services rendered. The Comptroller General further stated, "We have stated this in our decision since the first volume of published Comptroller General decisions (See 1 Comp. Gen 700 (1922)).

The United States Supreme Court in the United States v. Tyler, 105 U.S. 244 (1881), clearly stated "that after a member's retirement, compensation is continued at a reduced rate, and the connection (of the member to the military) is continued, with a retirement from active service only."

The Uniformed Services Former Spouse' protection Act abetted the public misconception of military retirement pay as a pension, despite the fact that federal statutes and case law had historically and consistently regarded military retired pay as reduced compensation for reduced services with no attributes of a pension.

The Comptroller General, the Department of Defense, the Internal Revenue Service, and the U.S. bankruptcy courts have taken this position. Members of the Uniformed Services constitute the only group of U.S. citizens whose income, which is being earned while in a retired status, is treated as both a deferred income and a current income, depending on what the government wants to do with it!

For any law within the United States to be truly valid, it must first meet the requirements of the United States Constitution and become effective only from its actual date of passage. It cannot be post dated such as the case with the Former Spouse Protection Act P.L.97-252. To be fair, it must also be universally applied, nondiscrimination, consistent in its application, and equitable in its considerations.

The application of, and the passage of the Uniformed Services Former Spouse' protection Act P.L.97-252 meet none of these requirements. The "bottom line" is that military retainer pay fails the legal test of marital property.

Military retainer pay cannot be sold, transferred, or passed on to heirs. Furthermore, the military member is not vested into a pension plan. The IRS taxes military retirement pay as current income! The Uniformed Former Spouse Protection Act (USFSPA) clearly allows the transfer of military funds that are authorized and appropriated for National Defense purposes to social, non-defense purposes for which there is no established earned or contractual basis with the United States Government.

A new violation of the military members civil and constitutional rights occur each month when the involuntary diversion of funds is enforced by the federal government. Without legal intervention many military members will remain in perpetual servitude to a former spouse until they die!

The simple facts as outlined below must be kept in mind

* It's the soldier, not the civilian spouse who performs military duty.

* It's the soldier whose lives are at stake on the battlefield–not the civilian spouse.

* It's the soldier, who spends time as a P.O.W., not the civilian spouse.

* It's the soldier whose life is expendable, not the civilian spouse.

* And it's the soldier who has a continued military obligation for life under federal
   law, not the former civilian spouse.

The Deputy Assistant Secretary of Defense presented the following facts for Military Personnel and Force Management, Feb. 7, 1985. These facts were published in the Defense / 85 Magazine.

1.  The military member who has served on active duty for 20 and / or more years is
     entitled to maintain their military rank and draw a monthly retainer wage for a
     continued military obligation until death.

2.  The reason for this continued military obligation is to insure that sufficient
     manpower is available to meet National Defense requirements in case of conflicts
     or all out war.

3.  The military retirement system is not an old-age pension plan, as are other
     systems.

4.  There is no comparison between the military retirement system and other
      retirement programs.

5.  Military retired members retain their military status.

6.  They are under the jurisdiction of the Uniform Code of Military Justice (UCMJ).
     They are restricted on what kind of work they can perform after retirement.

7.  It is not designed or intended to fulfill an old age income maintenance function.

8.  It does not offer any capital accumulation.

9.  It does not provide any deferred income provision.

10.It does not offer any thrift plan features, nor does it have any matching saving
     supplemental plans.

11.  The military retirement system helps keep our forces vital.

12.  It ensures that a smooth promotion flow continues.

13.  It operates to keep the force young with the skill and experience mix we need.

14.  It forms an integral part of the military compensation system.

15. Contingency mobilization plans include the recall to active duty of between 22 to   
      86 percent of the military retired reserve force.

16. Thousands of military members already have their recall orders in hand should
      it become necessary to be recalled to active duty. In short, the military system
      doesn't look anything like a normal retirement plan for a very good reason, it
      isn't one.

No other retirement system, public or private, faces such unique requirements.   Congress should do the right thing and repeal the Uniformed Services Former Spouses Protection Act. 

www.ULSG.org
www.GI-JANES.org
 

GI JANES Join Against Never Ending Ex Spouse Support 

The same law that was created by women to protect women is now victimizing women.

To support the extraordinary efforts and compassion of the ULSG, LLC (USFSPA Litigation Support Group) in the repeal of the USFSPA (Uniformed Services Former Spouses Protection Act) and to further promote the rights of female victims, a group calling themselves GI-JANES was recently formed. 

This group consists of Active Duty and Retired Military Women who, because they joined the United States Military, find themselves strapped to never ending ex-spouse support for the remainder of their lives simply because they were married while on active duty, regardless of length of marriage, and subsequently divorced, regardless of reason.

Urban legend has it that the USFSPA only applies to the male population. However with more and more women joining the ranks and choosing a career with the United States Military, many women are now being faced with the same  consequence of never-ending spousal support that is currently plaguing tens of thousands of the male military population.  And, the number of female veterans is growing on a daily basis.    

Not only is the GI-JANES Organization supported by Active Duty and Retired Military women, this group also gives an opportunity for the current wives of our victimized servicemen to be recognized.  The Department of Defense, by endorsing and supporting the USFSPA, is effectively ignoring any new family of the service member.

A secondary purpose of the GI-JANES, therefore, is to compel the Department of Defense (DoD) and the Military Services to fully brief all personnel about the USFSPA and the effect it will have on military members should they ever experience a divorce after being married while in the service.  The GI-JANES believe this should occur before entry into the Services and should re-occur during annual training each year thereafter.  

We encourage all female service members (Active Duty and Retired) and subsequent spouses to Get Involved.  Help fight for education and repeal of this discriminatory law against today's military women and men who have volunteered to protect and defend our way of life!
A review of the most outrageous facts regarding the USFSPA:

1. No remarriage clause.  Former spouses will receive a portion of the service member’s pay following remarriage, FOR LIFE.  This essentially sentences service members to lifetime support of their ex-spouses, even those spouses who cheat on our deployed military members and then serve them with divorce papers upon their return home from deployment– which is the trend these days.   
2. No minimum marriage requirement.  Many citizens including our Congressmen, Senators, and Washington leadership are under the impression that the division of military retirement pay is not enforceable unless the marriage extends a minimum of 10 years during the military career.  Factually, there is no minimum marriage requirement to become eligible for Never-Ending Ex-Spouse Support. Upon saying “I DO”, the spouse becomes a lifetime beneficiary of the military volunteer. 
3. A service member who has divorced during the military career can be forced to begin payments to a former spouse upon reaching retirement eligibility at year-20, even if the service member chooses to continue their career with the United States military.  Payments must be made directly from the Active Duty member's paycheck or the member becomes “in contempt of court.”  In all cases, this is in addition to child support when applicable as well as spousal support or alimony awarded by the state courts.   
4. The amount awarded to a former spouse is based on the rank of the service member at time of retirement, not their rank at time of divorce.  Obviously following a divorce, the former spouse is not present nor can a claim be made of their being a contributing factor toward subsequent rank achievements.  
5. A service member’s obligation to the United States Military does not cease at retirement as they are subject to recall while receiving retirement/retainer pay and must comply with the UCMJ (Uniform Code of Military Justice).  The former spouse will never have such an obligation. 

When the law was passed, all retirees who were already receiving their full retirement check from the Department of Defense were affected.  NO ONE was grandfathered to include those who had already joined the military with the understanding that they would become eligible for their full retirement upon serving the United States Military for a minimum of 20-years.  

Let’s stop the insanity and restore and protect present and future military benefits for all soldiers who earned them!  Get Involved!  Join GI-JANES in this grassroots effort to overturn the USFSPA and restore what rightfully belongs to service members.  You do not have to be married or divorced to join.  If you are even considering marriage, this is a must for you!  Even if you are happily married, learn about and protect what is yours!

GI-JANES are seeking Active Duty and Retired Military Women and any spouse of a male victim.  Get Involved, Get Active, and Get Busy!  The GI-JANES are standing up and making a difference!  Will you stand with us?

Check out these websites for further information:
http://gi-janes.org
www.ULSG.org
www.petitiononline.com/mod_perl/signed.cgi?USFSPA