Medical Discharge/Retirement + VA Disability + Divorce + Division of Property

Neo

Registered Member
#1
I realize there have been posts about this topic and I have searched and researched, but I am still very confused. I have a few questions I was hoping the experts on this forum could answer and clear up for me concerning normal retirement, medical retirement, VA disability payments, divorce and division of property.

(Background)
I have been married 10 years and have been active duty for about the same amount of time. My wife is currently asking the court for a % of my military retirement pay. I understand that during a divorce, a % of a members military retirement pay can be divided and awarded to the non-military spouse at the discretion of the judge. There are no question here. My soon to be X-wife believes I will continue service and retire after 20+ years. I am currently going through the IPEB process and I suspect I will be "medically retired". Whether I get retired, separated with severance or get nothing, I will separate the military once I receive my results (either way). So my questions are below.

(Medical Retirement)
What if the member does not complete 20+ years of service due to MEB/PEB and is separated because of a medical condition and is awarded "Medical Retirement"? Is the spouse still entitled to a % of the members medical retirement pay?

Is the medical retirement pay considered disposable income? Can it be included as income when calculating spousal support, child support, etc..?

(VA Disability)
If a disabled veteran who is receiving VA disability payments gets divorced. Can the VA disability pay be
divided and rewarded to the non-military spouse?

Can the VA disability payments be considered disposable income? Can it be included as income when calculating spousal support, child support, etc..?

Thank you for your support!
 

mascabn

PEB Forum Veteran
#2
She cannot touch your VA period. as far as disposible income, not sure but wouldn't think so as long as it's comp and pension, as it's not reportable income. as far as your retirement no clue.
 

xeno

Staff Member
PEB Forum Veteran
#3
1. I think you should get a lawyer that is familiar with these type of cases.
2. Depend on your state.
 

VAJumper

PEB Forum Veteran
#4
This raises some interesting issues. I'd be curious to know what you find out. For example, what happens if you are retired TDRL? Would your spouse get 25% of that? What happens if TDRL turns into severance? Would she get part of that too? Maybe Jason can chime in here.
 

VAJumper

PEB Forum Veteran
#7
Okay, I'm done Googling for you...I'll think you'll like this one, TDRL here is not disposable pay--make sure you get this to your lawyer:

USFSPA & DIVORCE Update 04: In Colorado the ex-wife of a Temporary Disability Retirement List (TDRL) army veteran discharged with 16 years of service, sued to get a portion of his TDRL pay. In 2001 they had divorced after seven years of marriage and the court awarded her parental responsibility and child support for the 3 children, granting maintenance for the wife, and dividing marital property and debts. The order provided that husband's pension/retirement benefits be evenly divided between the parties as set forth in the time rule formula. At the time the order was submitted the husband had 11 years of service. Six years later the husband was placed on TDRL with a 30% disability rating. His monthly pay was reduced from $5400 to $1629 per month. Because of the reduction he filed for a modification of the child support with the court. The wife responded, opposing the modification and further requested that the husband's TDRL benefits be divided pursuant to the permanent orders provision relating to pension/retirement benefits. Unfortunately, the original court order failed to include the term "disposable pay" in defining "pension/retirement benefits". After a hearing the trial court granted the husband's child support modification request and issued a subsequent order denying the wife's request to divide his TDRL benefits.
The Uniformed Services Former Spouses Protection Act (USFSPA) enacted in 1982 permits state courts to include a military service member's retirement/retainer pay as common property in a divorce proceeding thereby making it subject to garnishment. The government's well intended purpose was to afford some security for ex-spouses, most of whom were women, after a divorce from the breadwinner. The Act does not direct state courts to divide retired pay, it permits them to. The law further stipulates that only "disposable" pay may be divided. Disposable pay is defined as pay remaining after the following deductions: Debts owed to the U.S. government; Amounts of retired pay waived by the receipt of VA disability compensation; National Service Life Insurance (NSLI) premiums; and SBP costs. The law further stipulates that DFAS may not send more than 50% of the member's disposable retired pay as direct payment unless there are additional garnishments for alimony or child support under Title 42, U.S.C. section 659. In those cases up to 65% of the disposable pay may be sent as a direct payment.
In the above cited case the issue was whether or not TDRL could be considered as disposable pay. In preparing the husband's defense no precedence could be found in the state of Colorado or elsewhere in the nation of a similar case that had set the precedent that TDRL was not disposable pay. Thus, a lot of time and expense was incurred by the defense because the court had no precedent to follow. Now there is one. Veterans' facing similar court action can refer to Colorado Court of Appeals, Court of Appeals No. 07CA2432, Adams County District Court No. 00DR2350, Honorable Mark D. Warner, Judge Announced 19 FEB 09. A copy of the decision is available upon request from the RAO. [Source: Genevieve Williamson vs. Charles Williamson 19 Feb 09 ++]
 

abyss5150

PEB Forum Veteran
#9
Okay, I'm done Googling for you...I'll think you'll like this one, TDRL here is not disposable pay--make sure you get this to your lawyer:

USFSPA & DIVORCE Update 04: In Colorado the ex-wife of a Temporary Disability Retirement List (TDRL) army veteran discharged with 16 years of service, sued to get a portion of his TDRL pay. In 2001 they had divorced after seven years of marriage and the court awarded her parental responsibility and child support for the 3 children, granting maintenance for the wife, and dividing marital property and debts. The order provided that husband's pension/retirement benefits be evenly divided between the parties as set forth in the time rule formula. At the time the order was submitted the husband had 11 years of service. Six years later the husband was placed on TDRL with a 30% disability rating. His monthly pay was reduced from $5400 to $1629 per month. Because of the reduction he filed for a modification of the child support with the court. The wife responded, opposing the modification and further requested that the husband's TDRL benefits be divided pursuant to the permanent orders provision relating to pension/retirement benefits. Unfortunately, the original court order failed to include the term "disposable pay" in defining "pension/retirement benefits". After a hearing the trial court granted the husband's child support modification request and issued a subsequent order denying the wife's request to divide his TDRL benefits.
The Uniformed Services Former Spouses Protection Act (USFSPA) enacted in 1982 permits state courts to include a military service member's retirement/retainer pay as common property in a divorce proceeding thereby making it subject to garnishment. The government's well intended purpose was to afford some security for ex-spouses, most of whom were women, after a divorce from the breadwinner. The Act does not direct state courts to divide retired pay, it permits them to. The law further stipulates that only "disposable" pay may be divided. Disposable pay is defined as pay remaining after the following deductions: Debts owed to the U.S. government; Amounts of retired pay waived by the receipt of VA disability compensation; National Service Life Insurance (NSLI) premiums; and SBP costs. The law further stipulates that DFAS may not send more than 50% of the member's disposable retired pay as direct payment unless there are additional garnishments for alimony or child support under Title 42, U.S.C. section 659. In those cases up to 65% of the disposable pay may be sent as a direct payment.
In the above cited case the issue was whether or not TDRL could be considered as disposable pay. In preparing the husband's defense no precedence could be found in the state of Colorado or elsewhere in the nation of a similar case that had set the precedent that TDRL was not disposable pay. Thus, a lot of time and expense was incurred by the defense because the court had no precedent to follow. Now there is one. Veterans' facing similar court action can refer to Colorado Court of Appeals, Court of Appeals No. 07CA2432, Adams County District Court No. 00DR2350, Honorable Mark D. Warner, Judge Announced 19 FEB 09. A copy of the decision is available upon request from the RAO. [Source: Genevieve Williamson vs. Charles Williamson 19 Feb 09 ++]

I found the link below during my search, but was unable to find this one you included. So if I read this correct the court decided that TDRL was not "disposable pay"? The article does not actually say what the decision was. I hope this is the case, because I don't believe any kind of disability should be awarded to a spouse or considered disposable pay. I still wonder if this pay can be computed when considering spousal & child support. If it can, then the court could just hammer you in the form of child and spousal support and it would have the same effect of taking your TDRL pay.
 

abyss5150

PEB Forum Veteran
#10
I believe I found a great link in my deep internet search. Check it out. I warn it's a bit of a read. Anyone who get's a chance to read it please confirm what I am reading because the legal mumbo jumbo makes my brain hurt. The way I read it is that the service member got jerked and ended up having to pay a portion of his military disability retirement, but that the court made a decision based on outdated laws and that now the laws favor the service member and that TDRL/PDRL and VA disability pay are not considered "disposable pay" and can't be awarded to a former spouse as part of a divorce decree. It that how this reads? I hope this is the case and that members with a similar situation can benefit from this read.

http://www.13thcoa.courts.state.tx.us/opinions/HTMLOpinion.asp?OpinionID=17721

This case involves clarification of a final decree of divorce. By three issues, appellant William A. Thomas challenges the trial court's clarification order alleging that the trial court erred (1) by clarifying the decree and awarding his disability benefits as disposable retirement pay, (2) in not considering retroactive application of his permanent disability status to set aside the clarification order, and (3) in entering a clarifying order that made a substantive change in the decree. We reverse and remand.
I. Background
Thomas and appellee Alison Piorkowski (1) were divorced on December 3, 2004. The final decree of divorce provided for a division of the marital estate. The decree awarded the following to Piorkowski:
W-5. All right, title, and interest in and to the sum equal to fifty percent (50%) of the disposable retired pay of WILLIAM A. THOMAS which accumulated, accrued or to which WILLIAM A. THOMAS is otherwise entitled between May 25, 1996 and the day this decree is signed which is a result of WILLIAM A. THOMAS's service in the United States Armed Forces, and that share attributable to the interest awarded to ALISON THOMAS of disposable retired pay, if, as and when received by WILLIAM A. THOMAS.


On May 5, 2006, Thomas was placed on the Temporary Disability Retirement List (TDRL) by the United States Armed Forces (Navy) with a thirty percent disability rating. See 10 U.S.C.A. § 1202 (1998) On June 1, 2006, Thomas began receiving benefits computed under section 1401. See id. § 1401 (Supp. 2009).
On September 27, 2006, Piorkowski filed a motion to clarify the decree of divorce and to enforce the division of property. By her motion, Piorkowski sought to recover, as disposable retired pay, her share of Thomas's TDRL benefits. Piorkowski alleged that Thomas was receiving retirement pay and that he refused to deliver to Piorkowski her proportionate share. Piorkowski asked that the trial court enter a clarifying order restating the terms of the decree in a manner specific enough to allow enforcement by contempt. In response, Thomas objected, alleging that the decree of divorce was specific, unambiguous, and enforceable. He also contended that the TDRL benefits were based on his disability and thus, were a form of disability pay and not retirement pay subject to division by the trial court.
In March 2007, the trial court held an evidentiary hearing on Piorkowski's motion. Over Thomas's objections, the trial court granted the motion and entered a clarification order which set out, in relevant part, the following:
Clarification


The [c]ourt finds that certain terms of the prior order are not specific enough to be enforced by contempt and should be clarified as ordered below . . . .

* * * * *

IT IS ORDERED that the prior order is clarified as follows:

1. That portion of the Final Decree of Divorce awarding property to wife and as contained in paragraph W-5 on page 40 is amended as follows:

Division of Military Benefits of William A. Thomas

The [c]ourt finds, in accordance with the Uniformed Services Former Spouses' Protection Act [USFSPA], 10 U.S.C. section 1408, as follows:

1. Alison T. Piorkowski is awarded as her sole and separate property, the sum of $510.86 per month of the disposable retired pay of William A. Thomas as long as William A. Thomas is placed on the Temporary Disability Retirement List and receiving monthly retirement pay.

2. William A. Thomas is Ordered to deliver to Alison T. Piorkowski the sum of $510.86 per month until such time as William A. Thomas receives a final disability rating from the U.S. Navy.


* * * * *

The award of disposable retired pay made to Alison T. Piorkowski in this decree is made in compliance with the [USFSPA].

IT IS THEREFORE ORDERED AND DECREED that Alison T. Piorkowski have judgment against and recover from William A. Thomas the sum of $510.86 per month of the disposable retired pay of William A. Thomas.


* * * * *


Findings

* * * * *

5. Since the date of divorce, William A. Thomas has been placed upon the Temporary Disability Retirement List by the U.S. Navy and is currently receiving retirement pay in the amount of $1,246.00 per month ince July 1, 2006.


* * * * *

Relief Granted

IT IS ADJUDGED that Respondent, William A. Thomas, is in contempt for each separate violation enumerated above.

The [c]ourt finds that Respondent has failed to pay to Petitioner money that was awarded in the prior decree and that the amount of unpaid payments to which Petitioner is now entitled is $4,597.74.
Thomas filed a motion for new trial requesting that the clarifying order be set aside because it (1) awarded Piorkowski property she was not entitled to receive, (2) created an obligation that was not part of the relief requested and effectively reallocated property not consistent with the final decree of divorce, and (3) did not account for his level of disability or current disability rating. At the evidentiary hearing on his motion, having recently been declared eighty percent disabled by the Veterans Administration (VA), Thomas also asked that the order awarding retirement benefits be set aside by retroactive application of his disability status to the inception of his TDRL. Over objections, the trial court denied Thomas's motion for a new trial. This appeal ensued.
II. Standard of Review
We review the trial court's ruling on a post-divorce motion for clarification of a divorce decree or for enforcement under an abuse of discretion standard. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); Baker v. Donovan, 199 S.W.3d 577, 579 (Tex. App.-Houston [1st Dist.] 2006, pet. denied) (op. on reh'g); In re Marriage of McDonald, 118 S.W.3d 829, 832 (Tex. App.-Texarkana 2003, pet. denied). The test for abuse of discretion is a question of whether the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).
III. Discussion
By his first issue, Thomas contends that the trial court abused its discretion by entering a clarifying order awarding Piorkowski $510.86 as disposable retired pay. Thomas asserts that the money awarded to Piorkowski was not disposable retired pay but was disability pay and was awarded in direct violation of section 1408(a)(4)(C) of the USFSPA. See 10 U.S.C.A. § 1408(a)(4)(C) (1998) (providing for payment of retired pay in compliance with court orders). We agree.
The decree of divorce awarded Piorkowski "fifty percent (50%) of the disposable retired pay . . . if, as and when received by [Thomas]." In clarifying the decree, the trial court found that Thomas had been placed on the TDRL and had been receiving retirement pay in the amount of $1,246.00 per month since July 1, 2006. The court awarded Piorkowski $510.86 per month of Thomas's disposable retired pay as long as Thomas was on the TDRL and was receiving monthly retirement pay.
Under the USFSPA, military retirement benefits are generally apportionable by a divorce. See id. § 1408(c)(1) (1998); Mansell v. Mansell, 490 U.S. 581, 589 (1989); Limbaugh v. Limbaugh, 71 S.W.3d 1, 16-17 (Tex. App.-Waco 2002, no pet.); Wallace v. Fuller, 832 S.W.2d 714, 719 (Tex. App.-Austin 1992, no writ); Gallegos v. Gallegos, 788 S.W.2d 158, 169 (Tex. App.-San Antonio 1990, no writ). However, apportionable benefits are limited to "disposable retired pay," which is defined to exclude, among other things, disability pay including retirement benefits that may be waived in order to collect VA disability benefits and those computed using the percentage of disability on the date a person in the military is placed on TDRL. Limbaugh, 71 S.W.3d at 16-17, 17 n.13 (citing 10 U.S.C.A. § 1408(a)(4)(A-D) (1998)); see Mansell, 490 US at 589 (determining that state courts have the authority to treat disposable retired pay, not total retired pay, as community property). Specifically, "disposable retired pay" does not include,
amounts which . . . in the case of a member entitled to retired pay under chapter 61 of this title [10 USCS §§ 1201 et seq.], are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member's disability on the date when the member was retired (or the date on which the member's name was placed on the temporary disability retired list); . . . .
10 U.S.C.A. § 1408(a)(4)(C) (emphasis added). Thomas was entitled to retired pay only after being placed on the TDRL. His gross pay, in the amount of $1246.00, was computed using the percentage of disability (thirty percent) on the date he was placed on the TDRL. See id. § 1401. The statute expressly excludes from "disposable retired pay" temporary disability retirement benefits--the $1246.00 in this case. See id. § 1408(a)(4)(C). We conclude, therefore, that Thomas's gross pay, the money at issue in this case, was not disposable retired pay and therefore, was not divisible as marital property.
Moreover, placement on TDRL is governed by section 1202, which provides as follows:
Upon a determination by the Secretary concerned that a member described in section 1201(c) of this title would be qualified for retirement under section 1201 [permanent disability] of this title but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall . . . place the member's name on the temporary disability retired list, with retired pay computed under section 1401 of this title.
Id. § 1202. The statute requires a member to undergo a physical examination at least once every eighteen months in order to determine "whether there has been a change in the disability for which he was temporarily retired." Id. § 1210(a) (1998). A member may remain on the TDRL for up to five years. Id. § 1210(b) (1998). After five years on the TDRL, the member must be either returned to active duty, if fit for service; permanently retired for longevity, if at least twenty years of service has been attained; or permanently retired for disability, if he is at least thirty percent disabled and the disability is permanent and stable. Id. § 1210(b)-(f) (1998).
At the time Thomas was placed on TDRL, he had served in the military for ten years, five months, and eight days. He did not have twenty years service. He was not eligible for a regular retirement based on longevity. See id. § 3914 (1998) (requiring an enlisted member of the armed services to have at least twenty years of service to be retired); see also id. § 6323 (1998 & Supp. 2009) (providing that a naval officer was entitled to voluntarily retire, with the consent of the United States President, after 20 years of service). Thomas was not eligible for any retired pay other than that based on his disability. Because this pay was necessarily based on Thomas's disability, it was not divisible as marital property. See id. § 1408(a)(4)(C); In re Marriage of Williamson, 205 P.3d 538, 541-43 (Colo. Ct. App. 2009) (concluding that benefits of a husband who was completely ineligible for any military retirement benefits but for his disability, were based on his disability and therefore not divisible as marital property); see In re Marriage of Wherrell, 58 P.3d 734, 741 (Kan. 2002) (recognizing that members eligible for retirement would potentially receive both disability and retirement benefits with only the disability portion of the benefit to be excluded form "disposable retired pay"; however, if a member is not entitled to retired pay, it would not be appropriate to allow only a portion of his severance to be excluded from division under USFSPA); Bullis v. Bullis, 467 S.E.2d 830, 836 (Va. Ct. App. 1996) (en banc) (concluding that the USFSPA "exempts only that portion of Chapter 61 benefits which corresponds to the retiree's disability percentage rating at the time of retirement. If, for example, a service member retires with 60% disability under Chapter 61, then 60% of the member's retirement benefits are excluded from the definition of 'disposable retired pay'. The remaining 40% of the member's benefits may be judicially apportioned under state community property laws.").
Piorkowski asserts that the plain reading of the statute, specifically certain phrases found in sections 1202, 1210, and 1211, indicates that the status of a member on the TDRL is akin to inactive duty or retirement. See 10 U.S.C.A. § 1202 (including "would be qualified for retirement" and "with retired pay" in section language); id. § 1210 (including "temporarily retired" in language); id. § 1211 (a-b) (1998) (referring to "active duty"); Transco Prods. Inc. v. Performance Contracting, Inc., 38 F.3d 551, 556 (Fed. Cir. 1994) ("When statutory interpretation is at issue, the plain and unambiguous meaning of a statute prevails in the absence of clearly expressed legislative intent to the contrary."). However, sections 1202, 1210, and 1211 should be read in conjunction and harmony with other sections of the statute which provide for the computation of pay when a member is placed on the TDRL and with supporting case law. See Hooks v. Tex. Dep't of Water Res., 611 S.W.2d 417, 419 (Tex. 1981). Doing so, we cannot conclude that because Thomas's status may be akin to retirement because such words are used in certain sections of the statute, his pay must be retirement pay and not disability pay. We are not persuaded by that reasoning, especially in light of our discussion above.
Piorkowski relies on Dambrava v. Office of Personnel Mgmt., 466 F.3d 1061, 1063-64 (Fed. Cir. 2006) (determining that TDRL placement is akin to retirement) and Bradley v. United States, 161 F.3d 777, 782 (4th Cir. 1998) (deciding that TDRL "status is comparable to permanent retirement status"), for the proposition that payments received by a military member while on the TDRL should be considered retirement pay. In Dambrava, the court determined that Gintaras Dambrava, a civil servant, was not qualified for immediate retirement because his time on the TDRL was not active service and could not be included as service credit in the calculation. 466 F.3d at 1065. The Bradley court, in a summary judgment proceeding, concluded that Sharon Bradley's status was comparable to permanent retirement when her medical treatment at issue in the case occurred while she was on the TDRL. 161 F.3d at 782. Thus, the action was not barred by the immunity doctrine. Id. (citing McGowan v. Scoggins, 89 F.2d 128, 137-39 (9th Cir. 1989) (holding that the Feres doctrine did not bar a retired Army officer from suing for injuries suffered in an attack by military personnel while he was on the base to obtain a parking sticker)).
The issue in Dambrava was whether Dambrava's time on the TDRL was active service. Dambrava, 466 F.3d at 1062. The Dambrava court determined that it was not. Id. at 1065. The issue in Bradley was whether Bradley's status was comparable to permanent retirement when she received the complained-of medical treatment. Bradley, 161 F.3d at 782. In this case, we are addressing a very different issue--an issue that is not dependent on the status of Thomas, but on how his pay is calculated and how its calculation is dependent upon his disability. We cannot read Dambrava and Bradley in isolation as Piorkowski urges.
Piorkowski also relies on Baker v. Donovan and In the Marriage of Reinauer, to support her contention that the trial court awarded disposable retirement pay, not disability benefits, and, thus, did not abuse its discretion. Baker, 199 S.W.3d at 578; Reinauer, 946 S.W.2d 853, 855-56 (Tex. App.-Amarillo 1997, no pet.). These cases, however, are distinguishable from the present case.
In Baker, the divorce decree awarded Karen Donovan "50% of Michael Allen Baker's present accrued benefit as of the date of the decree, in the U.S. Military Retirement System." 199 S.W.3d at 578. In 2002, Baker began receiving retirement benefits of approximately $5,000 per month including $1,069 designated as VA disability pay. Id. When Baker failed to pay Donovan's portion of his retirement, Donovan filed a petition to enforce and clarify the decree. Id. The trial court awarded Donovan a portion of Baker's military retirement benefits without excluding his VA disability pay. Id. at 578-79. The Baker court concluded that the trial court did not err in doing so because the proceeding was an enforcement and clarification proceeding, not a motion to modify proceeding. Id. at 580. And a motion to modify "would have been required for the trial court to alter or change the substantive division of property and, thus, [Baker's] request [was] beyond the power of the trial court." Id. (citing Tex. Fam. Code Ann. § 9.007(b)). The court concluded that Baker was attempting to collaterally attack the decree in error because there had been no appeal from the divorce court's division of the property. Id.
In the present case, the divorce decree awarded interest in "fifty percent (50%) of the disposable retired pay." In his first issue, Thomas is not challenging the substance of the division. He is not arguing that Piorkowski is not entitled to a portion of his disposable retired pay. Rather, Thomas is complaining of the trial court's actions in determining that his pay is disposable retired pay.
Likewise, Reinauer is distinguishable. The Reinauer court, under the law in effect at that time, concluded that Reinauer's compensation under section 1201 (permanent disability) "had been held to be an earned property right accrued by reason of years of service rather than gift or gratuity." Id. at 858.
The court continued with the following reasoning:
That it may be labeled "disability retirement pay," or the like, mattered not given its substantive nature. Nor was the fact that it arose due to his forced retirement of consequence. Thus, having satisfied the requisite indicia, the monies paid Reinauer by the Navy were, and are, "retirement pay" within the scope of the 1979 decree.


Id.
The Reinauer divorce decree became final in 1979, years before the present USFSPA went into effect, and thus, the USFSPA was not controlling. In the Marriage of Reinauer, 946 S.W.2d 853, 857 (Tex. App.-Amarillo 1997, no pet.); see Department of Defense Authorization Act, 1983, Pub. L. No. 97-252 § 1001, 96 Stat. 730-35 (1982). In 1979, Texas courts considered military retirement benefits and chapter 61 military benefits as a community asset subject to division upon divorce. Reinauer, 946 S.W.2d 853, 857(citing Busby v. Busby, 457 S.W.2d 551, 551-52, 554 (Tex. 1970), Kirkham v. Kirkham, 335 S.W.2d 393, 394 (Tex. Civ. App. 1960, no writ)). Under the USFSPA today, we would not reach the same result.
Therefore, we conclude that the trial court erred in determining that Thomas's pay was disposable retired pay, in awarding a portion thereof to Piorkowski in the amount of $510.86 per month, in adjudging Thomas in contempt, and in finding that Piorkowski was entitled to $4,597.74, the amount of unpaid payments. See Downer, 701 S.W.2d at 242. The trial court abused its discretion when it entered a clarifying order reflecting this relief. See Worford, 801 S.W.2d at 109. Accordingly, we sustain Thomas's first issue.
 

haiki

PEB Forum Regular Member
#11
Let’s try this! The law which you consider supreme over any other in enforcing 38 USC 5301? “…and shall not be liable to attachments, levy, or service by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.”
How for decades the Veterans Administration, in processing State court orders, administratively garnish a veterans’ disability compensation as alimony. In doing so, refer to VA guidelines that supersede and override the linchpin of the Constitution, “The Supremacy Clause, Article VI of the United States Constitution. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
=
Yes, this you know. However! The key word here is, “notwithstanding” which means, in spite of, despite. “[N]otwithstanding” also appears where State courts go to direct the VA by court order, the consent to enforcement and justify the taking of your, as well as thousands upon thousands veterans’ disability compensation as alimony awards. Using that exact same word, and then reference 5301 in order to make it quite clear any such waiver is not possible. “Notwithstanding” is found in Title 42 USC 659. “Consent by the United States to income withholding, garnishment, and similar proceedings for enforcement of child support and alimony obligations.”
=
Briefly; 42 USC 659(a) Consent to enforcement.
Nothwithstanding any other provision of law (including section 407 of this title and section 5301 of title 38)…moneys.. due from, or payable by, the United States…to any individual, including members of the Armed Forces of the United States, shall be subject…to withholding in accordance with State law…to enforce the legal obligation of the individual to provide child support or alimony.”
=
(h)(V) By the Secretary of Veterans Affairs as compensation for a service-connected disability paid by the Secretary to a former member of the Armed Forces who is receipt of retired or retainer pay if the former member has waived a portion of the retired or retainer pay in order to receive such compensation.”
=
I went to a law professor looking for an answer to this question. I asked, I think I know the answer, however, I cannot pinpoint it to any particular reference of law other than the Supremacy Clause of Article VI of the United States Constitution. I would like your opinion on the Article VI “notwithstanding” and the use of “Notwithstanding any other provision of law ” found elsewherein the United States Code.”. I would think Article VI prevails, would you agree? He replied, “Yes, the US Constitution always trumps any other form of law. “
=
Here, your question is, or should be, which is it going to be? Either the United States Constitution Article VI “notwithstanding” or the 42 USC 659 administrative law “notwithstanding”? Here… there is the legal certainty. Which is it going to be?
 

abyss5150

PEB Forum Veteran
#12
Let’s try this! The law which you consider supreme over any other in enforcing 38 USC 5301? “…and shall not be liable to attachments, levy, or service by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.”
How for decades the Veterans Administration, in processing State court orders, administratively garnish a veterans’ disability compensation as alimony. In doing so, refer to VA guidelines that supersede and override the linchpin of the Constitution, “The Supremacy Clause, Article VI of the United States Constitution. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
=
Yes, this you know. However! The key word here is, “notwithstanding” which means, in spite of, despite. “[N]otwithstanding” also appears where State courts go to direct the VA by court order, the consent to enforcement and justify the taking of your, as well as thousands upon thousands veterans’ disability compensation as alimony awards. Using that exact same word, and then reference 5301 in order to make it quite clear any such waiver is not possible. “Notwithstanding” is found in Title 42 USC 659. “Consent by the United States to income withholding, garnishment, and similar proceedings for enforcement of child support and alimony obligations.”
=
Briefly; 42 USC 659(a) Consent to enforcement.
Nothwithstanding any other provision of law (including section 407 of this title and section 5301 of title 38)…moneys.. due from, or payable by, the United States…to any individual, including members of the Armed Forces of the United States, shall be subject…to withholding in accordance with State law…to enforce the legal obligation of the individual to provide child support or alimony.”
=
(h)(V) By the Secretary of Veterans Affairs as compensation for a service-connected disability paid by the Secretary to a former member of the Armed Forces who is receipt of retired or retainer pay if the former member has waived a portion of the retired or retainer pay in order to receive such compensation.”
=
I went to a law professor looking for an answer to this question. I asked, I think I know the answer, however, I cannot pinpoint it to any particular reference of law other than the Supremacy Clause of Article VI of the United States Constitution. I would like your opinion on the Article VI “notwithstanding” and the use of “Notwithstanding any other provision of law ” found elsewherein the United States Code.”. I would think Article VI prevails, would you agree? He replied, “Yes, the US Constitution always trumps any other form of law. “
=
Here, your question is, or should be, which is it going to be? Either the United States Constitution Article VI “notwithstanding” or the 42 USC 659 administrative law “notwithstanding”? Here… there is the legal certainty. Which is it going to be?

Wow! I'm even more confused now. Legal mumbo/jumbo hurts my brain!
 

carnelli53

PEB Forum Veteran
Registered Member
#14
What occurs in these situations are state law issues, not Constitutional ones (at least initially). There are many peculiarities between each state, as Jason stated. Thus, it is advisable to consult an attorney if you are pending a divorce and will soon be in receipt of military disability/retired pay and/or VA compensation.

As an example to how complicated this can become (hypothetical here) - VA Compensation and military disability pay may not be calculated for purposes of alimony, but may be calculated for purposes of child-support. In the case a servicemember becomes divorced pending a medical retirement, the couple will split his/her medical retirement (could be based on years of service or the full amount of the disability percentage), once he/she gets a VA rating and waives their retirement in favor of VA compensation - the spouse can request part of the compensation to match their loss resulting from the VA waiver.

Just for clarity - 42 USC 659 is not a regulation or rule formed by an administrative agency, it is United States Code adopted by Congress.
 

abyss5150

PEB Forum Veteran
#15
What occurs in these situations are state law issues, not Constitutional ones (at least initially). There are many peculiarities between each state, as Jason stated. Thus, it is advisable to consult an attorney if you are pending a divorce and will soon be in receipt of military disability/retired pay and/or VA compensation.

As an example to how complicated this can become (hypothetical here) - VA Compensation and military disability pay may not be calculated for purposes of alimony, but may be calculated for purposes of child-support. In the case a servicemember becomes divorced pending a medical retirement, the couple will split his/her medical retirement (could be based on years of service or the full amount of the disability percentage), once he/she gets a VA rating and waives their retirement in favor of VA compensation - the spouse can request part of the compensation to match their loss resulting from the VA waiver.

Just for clarity - 42 USC 659 is not a regulation or rule formed by an administrative agency, it is United States Code adopted by Congress.
I fully understand what if a member waives their retirement in favor of VA compensation. The question in the air i guess is can they get a piece of your retirement if it is based solely on a disability rating?
 

carnelli53

PEB Forum Veteran
Registered Member
#16
My guess (and this is solely a guess) is yes, your spouse can possibly get a piece of retirement even it is based solely on a disability rating. However, I would think the maximum they collectable amount is whatever your length of service retirement calculation would be - for example, if you served 5 years and was medically retired at 50%, then your spouse could only collect the sum of your length of service calculation (which in this scenario, would not be much). I want to emphasize again, this is just speculation. The actual answer depends on the specific facts of your case and the applicable laws of your state.
 

haiki

PEB Forum Regular Member
#17
I'll add this.
=

Department of Veterans Affairs acting General Counsel, Mr. John Thompson, explained garnishment of VA disability compensation in August of 1984 before the House Committee on Veterans Affairs.
“Federal statutes generally prohibit the garnishment of VA benefits to satisfy debts owed to private individuals. The sole exception is that VA disability compensation received in lieu of waived military retired pay can be garnished in order to satisfy court-ordered child support and alimony obligations.”
=
Mr. Thompson clarifies it’s legal meaning. “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.”
=
Recently, I replied to Veterans Administration Secretary Shinseki in response to a letter he had sent to U.S. Representative Eric Massa (NY) regarding the Secretaries interpretation of 38 USC 5301. I wrote to him my concern, his interpretation, of the attachment of veterans disability compensation. An interpretation which differs from the Veterans Administrations own legal council, Mr. John Thompson.
=
Unlike Secretary Shinseki’s interpretation, most important is the wording found in the Federal Register of 6/11/1997 only confirms the legal definition provided by VA legal council John Thompson. “Federal Register Part 581. Processing garnishment order for child support and alimony…(a) …administering a program under an approved State plan to enforce the legal obligations of the obligor to provide child support and alimony.”
=
My reply to Secretary Shinseki, …n your explanation of 5301(a)(1), “..but only for the purposes of alimony or child support pursuant to a court order.,” your use of the word, the logical operator “or” separates the two conditions, alimony, or child support. This does not match the “sole exception” legal definition provided by counsel Thompson, explaining, “..can be garnished in order to satisfy court-ordered child support and alimony obligations.” Only when these two(2) conditions, child support and alimony, having been met…,“VA disability compensation received in lieu of waived military retired pay can be garnished in order to satisfy court-ordered child support and alimony obligations.” If as you suggest there is a still another exception to what Mr. Thompson provided it would be most helpful in our understanding. If the intention is to explain Mr. Thompson’s use of the word “and” this would just cancel out any need for council Thompson even explaining any further, in making the point that there is an exception by bringing up the subject of “sole exception” and clarifying 38 USC 5301(a)(1).
=
38 USC 5301, "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, and such payments made to, or on account of,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.”
=

Secretary Shinseki’s reply referencing 5301 making exception, mentions, “VA compensation may be attached…for the purpose of alimony or child support pursuant to a court order.“ This is not what Representative Massa‘s call for help was about. It is about 38 USC 5301. What Secretary Shinseki failed to include. Omitted in his reply, referencing 5301(a)(1), only…the first 79 words, “Nonassignability and exempt status of benefits.” However, the last eight (8), important words, were left out,“ ..either before or after receipt by the beneficiary” These eight (8) short words would be needed by any reader in order to understand fully the meaning of attachment. Was this intentional? Only 8 more words completing the sentence, ….why leave them out?
=
“[A]nd an agency's alternative interpretation of the statute is not entitled to deference...." Bull v. United States, 479 F.3d 1365, 1376 (Fed.Cir.2007).
=
“And where the statutory language provides a clear answer, it ends there as well." Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999).
=
A statute should be interpreted so as not to render one part inoperative. Mountain States Tel.& Tel. V. Pueblo of Sant a Ana, 472 U.S. 237 (1985)
=
Secretary Shinseki suggested, “..may be attached…but only for the purpose of alimony or child support.” Title 42 USC 659, “Consent by the United States to income withholding, garnishment, and similar proceedings for enforcement of child support and alimony obligations”, wording described as interpreted by VA council Thompson. Something that is misunderstood by the Secretary.
=
Why is it that those disabled veterans that have waived retired pay to receive VA disability compensation, garnishment is for “child support and alimony”, and not “child support or alimony”? Child support is involved. In a divorce actions involving custody of a child, the custodial parent would, according to the laws as they now apply, i.e., Rose V. Rose, have been awarded alimony along with child support. But, only for the purposes of child support and alimony. Is there a divorce action where the ex-spouse asks for child support, and not alimony? This is rare if not non-existent as present cases would suggest. However, delinquent payment problems do surface in child support issues, as well with alimony, which courts subsequently have to address., i.e., “child support or alimony.”
=
10 USC 1408 Computation of retired pay. Payment of retired or retainer pay in compliance with court orders. (d) Payments by the Secretary concerned to (or for Benefit of) Spouse or Former Spouse. (1) After effective service on the Secretary concerned of a court order providing for the payment of child support or alimony or, with regard to a division of property,…” 1408 is used to determine administratively either child support or alimony payments. Until a court order has been received the process has yet to be determined by the administrator, specifically the purpose of the court order. 1408 (e)(6) Nothing in this section shall be construed to relieve a member of liability for the payment of alimony, child support, or other payments…” However, when it comes to disabled veterans, State courts look to administrative law to determine incorrectly, child support and alimony, becomes child support or alimony.

=
All other divorce actions not involved with child support, where disabled retired pay that has been waived in order to receive VA disability compensation, describing it’s purpose, Title 659 does not apply in the “…enforcement of child support and alimony obligations.” However, as we all know this is ignored by state court judges.
=
Secretary Shinseki as well as State divorce courts look to administrative law, interpreting VA administrative procedures, and use a broad brush unfairly, without legal certainty, enforcing procedural guidelines, and applied the remedy, rather than applying the law.
=
Every jurisdiction has it’s boundaries. ”What will it be? VA council John Thompson’s legal interpretation, or Secretary Shinseki’s understanding? 38 USC 501 “Authority and duties of the Secretary. In applying section 552(a)(1) of title 5 to the Department , the Secretary shall ensure that subparagraphs (C), (D), and (E) of that section are complied with, particularly with respect to opinions and interpretations of the General Council.”
 

abyss5150

PEB Forum Veteran
#18
Good day.......I guess I'll be one on this thread to tread the waters. I just received 50% TDRL and recently got divorced. Child support, spousal support and my AF retirement are all to be determined in upcoming court proceedings. Any additional info on the subject would be very helpful.
 

haiki

PEB Forum Regular Member
#19
State court judges v BVA
=
State court judges medical privilege, overstepping. A veteran's observation.
How can state court judges arbitrarily award as alimony a portion of a veteran’s disability rated compensation, and waive away, by reviewing the disability rights of 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 overstepping those whose authority it belongs, in the practice of medicine, reevaluation, and rehabilitation of the veteran. And in doing so, the law is quite clear, along with violating the canons of standard conduct for judges, violating “Authority for schedule for rating disabilities.” 38 USC 1155, "..., 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.” Violating as well, 38 USC 5301, 42 USC 1408.
I now wondered, if state court judges are allowed to take away a veteran’s disability compensation without a medical license, or medical knowledge, how does the Board of Veterans Appeals, who are continually faced with determining a veteran’s disability compensation, or other medical claim, adjudicate these medical questions?
=
38 C.F.R. PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE
http://law.justia.com/us/cfr/title38/38-2.0.1.1.5.html

=
§ 20.101 Rule 101. Jurisdiction of the Board.
“b Appellate jurisdiction of determinations of the Veterans Health Administration. The Board's appellate jurisdiction extends to questions of eligibility for hospitalization, outpatient treatment, and nursing home and domiciliary care; for devices such as prostheses, canes, wheelchairs, back braces, orthopedic shoes, and similar appliances; and for other benefits administered by the Veterans Health Administration.
Medical determinations, such as determinations of the need for and appropriateness of specific types of medical care and treatment for an individual, are not adjudicative matters and are beyond the Board's jurisdiction. Typical examples of these issues are whether a particular drug should be prescribed, whether a specific type of physiotherapy should be ordered, and similar judgmental treatment decisions with which an attending physician may be faced.”
Authority: 38 U.S.C. 511a, 7104, 7105, 7108
=
§ 20.901 Rule 901. Medical opinions and opinions of the General Counsel.
“(d) Independent medical expert opinions.
When, in the judgment of the Board, additional medical opinion is warranted by the medical complexity or controversy involved in an appeal, the Board may obtain an advisory medical opinion from one or more medical experts who are not employees of the Department of Veterans Affairs. Opinions will be secured, as requested by the Chairman of the Board, from recognized medical schools, universities, clinics, or medical institutions with which arrangements for such opinions have been made by the Secretary of Veterans Affairs. An appropriate official of the institution will select the individual expert, or experts, to give an opinion.”
Authority: 38 U.S.C. 7109
=
State court judges in awarding a veterans’ VA disability compensation as a ‘divisible asset’ in a divorce, these disability medical questions or issues are beyond his state court jurisdiction, are warranted, and required to obtain advisory medical opinion from medical experts, as required by the BVA, as well as in other civil litigation. These illegal rulings, by description, these judges can only be described as, 1. An absolute ruler 2. A ruler who governs oppressively or brutally 3. One who uses authority or power harshly. The Merriam-Webster definition of a “tyrant”.
=
Received email copy (8/1/2010), advising another veteran about the problems her disabled husband experienced in a Texas court, and the result of these rulings by these state court tyrants. “Just a note: My husband on May 30th committed suicide because of legal battles with his former spouse, her getting more than what she was owed--the stress and financial strain of it and PTSD.
 

haiki

PEB Forum Regular Member
#20
“Clear and substantial” major damage to federal interests.
=
There is “clear and substantial” major damage to federal interests when state court judges make lasting decisions that seriously impact and complicate the Veterans Administration goals. Upsetting, by overruling the medical decisions, and the many hours of work that VA medical care professionals have invested in rehabilitation of disabled veterans, all this 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.
=
Now, “.. an argument may be, is that the veteran's disability rating has not actually been downgraded. No one has actually decreased the VA predetermined rating. In this situation, the judge is merely apportioning it after the fact.”
=
This maybe true, however, based on the fact because the rating and compensation are directly tied to each other. Sure the rating may have not gone down, but to a veteran his disability compensation payments is contingent upon what VA medical professionals determined the disabled veteran should be compensated for, forgetting for the moment, any rating system. To the veteran who loses any portion of his compensation payments, he considers his rating has been downgraded. Because, now his VA rating is meaningless. After all, a veterans health and well being are now in jeopardy. A “ cause and effect” situation. We just have to stop this nonsense that’s happening in state courts.
=
Which brings up the question, how can state court judges in violating, 38 USC 5301, 42 USC 1408, arbitrarily award as alimony, a portion of a veteran’s VA disability rated compensation, and waive away, by reviewing the disability rights of veteran whose disability rating that maybe determined and factored in as critical? Judgment as if all disabilities are exactly the same. State court judges, playing doctor, border on medical negligence, overstepping those whose authority it belongs, in the practice of medicine, re-evaluation, and rehabilitation of the veteran, and VA medical professionals. In direct violation of 38 USC 1155, “Authority for schedule for rating disabilities.” "..., n 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.” Reduced readjustment in a rating schedule, in the taking away money’s used for the recovery and rehabilitation of disabled veterans, and handing it over to a healthy third party. Was it the intent of Congress that judges substitute their judgment for the judgment of VA medical professionals?
=
I now wondered, if state court judges are allowed to take away a veteran’s disability compensation without a medical license, or medical knowledge? How does the Board of Veterans Appeals, who are continually faced with determining a veteran’s disability compensation, or other medical claim, adjudicate these medical questions?
=
§ 20.101 Rule 101. Jurisdiction of the Board.
“…Medical determinations, such as determinations of the need for and appropriateness of specific types of medical care and treatment for an individual, are not adjudicative matters and are beyond the Board's jurisdiction….”
=
Even the Social Security Administration… has medical evidence standards they must follow.
42 USC 423 “In making any determination the Commissioner of Social Security shall make every reasonable effort to obtain from the individual’s treating physician (or other treating health care provider) all medical evidence, including diagnostic tests, necessary in order to properly make such determination, prior to evaluating medical evidence obtained from any other source on a consultative basis.”
=
State court judges in awarding a veterans’ VA disability compensation as ‘income’ in a divorce, show an indifference to veterans’ and their serious medical needs. The deliberate intrusion by state courts into federal issues and laws, ruling arbitrarily by awarding VA disability compensation to a third party is unwarranted. They are required to obtain advisory medical opinion from medical experts, just as required by the Board of Veterans’ Appeals (BVA), and as well, as in all other civil litigation.
=
Judges, rule arbitrarily that they have the right to award VA disability compensation to third parties. The right to play doctor. Because of this, these judges have taken on the responsibilities of a medical doctor, and ruled as a doctor. Contrary to the veteran’s reliance on 38 USC 5301, and because of the disability of the veteran, they have, by their judicial proceedings determined the disabled veteran is incapable of caring for his or her own interests. Due to a veterans’ disability, and their authority as judge in ruling, awarding of VA disability compensation to third parties. The reality is, the state court judge has taken on another responsibility, and became the veterans’ legal guardian, his “ward”. Another disabled veterans’ right, that of being able handle his or her own rehabilitation now has been taken away .
=
The legal recommendation of the VA’s own General Council in medical determinations, and questions, that are beyond the knowledge of those not in the medical field.
=
38 CFR 20.901 Rule 901. Medical opinions and opinions of the General Counsel.

“(d) Independent medical expert opinions. When, in the judgment of the Board, additional medical opinion is warranted by the medical complexity or controversy involved in an appeal, the Board may obtain an advisory medical opinion from one or more medical experts who are not employees of the Department of Veterans Affairs. Opinions will be secured, as requested by the Chairman of the Board, from recognized medical schools, universities, clinics, or medical institutions with which arrangements for such opinions have been made by the Secretary of Veterans Affairs. An appropriate official of the institution will select the individual expert, or experts, to give an opinion.” (Authority: 38 U.S.C. 7109)
=
VA Can’t Base Denial on its Own Medical Judgment Colvin v. Derwinski, 1 Vet. App. 171 (1991) “Colvin stands for a now deeply embedded and fundamental principle of veterans law—the VA may use only independent medical evidence to support its benefits decisions. The VA may not use the medical opinion or judgment of the VA rater or BVA Veterans Law Judge to support a decision”
=
“…before a state law governing domestic relations will be overridden, it "must do ‘major damage' to `clear and substantial' federal interests."
=
“Clear and substantial” major damage to federal interests occurs when, in attaching, or “considering” for any reason, the VA rated disability compensation benefits of disabled veterans by judges practicing in a field where they have no expertise. The expertise that VA doctors, and VA healthcare professionals are required to have in order to determine the appropriate medical procedures, and the proper disability compensation payment in order to rehabilitate, with a medical degree of certainty, that would ensure a disabled veteran return to a healthy meaningful outlook, and enjoyment of life, and independence in daily living.
=
“Clear and substantial” major damage to federal interests occurs. When the work of the primary medical care provided by Veterans Administration medical teams to disabled veterans’ has been compromised by activist state court judges. Readjusting the VA’s predetermined medical disability payment rating schedules, by court order to lower VA payout levels. Attaching these just acquired disability compensation benefit payments as alimony awards, by judges practicing in a field where they have no business practicing. Doctors do not attempt to practice law. The expertise and knowledge of VA doctors, and VA healthcare professionals are required in order to determine the appropriate medical care, and disability payment compensation in order to rehabilitate, with a medical degree of certainty, that would ensure a disabled veteran return to a healthy meaningful outlook, and enjoyment of life, and independence in daily living.
=
“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.”
=
As described, it is overtly clear that disabled veterans “fundamental rights” through state court action, violate many federal laws to protect the veteran, i.e., 38 USC 5301, 38 USC 1155, 42 USC 1408, 42 USC 659. Finally, 42 USC 1983, “Civil action for deprivation of rights. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State.. subjects, or causes to be subjected, any citizen of the United States… deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, … or other proper proceeding for redress,..”
=
Major damage “clear and substantial” to disabled veterans. There are two ways to stop this.
=
(1) Challenging state court judges as to their misguided belief that their knowledge of law qualifies them to practice in the field of medicine, of which they have no knowledge, by overruling VA disability compensation decisions. Court rulings that lack the requisite expertise to draw conclusions that test the assessment, evaluation ,and reasonableness of the weight given by VA doctors and medical professionals in allocating proper VA disability compensation payment levels.
=
(2) Write to Secretary of Veterans Affairs to question those VA policies that are in violation of federal law which ignores compliance to a legal process which serves to protect the interests of the disabled veteran. Sec. 5301.“Nonassign- ability and exempt status of benefits.” Questioning why the VA continues to approve rubber stamping illegal state court ordered judgments, to reapportion, and therefore reduce a disabled veterans VA compensation payments in violation of federal law for alimony purposes, by a state court judge playing doctor? 4 USC 581.305 (c) “…the governmental entity shall inform the party who caused the legal process to be served, or the party's representative, that the legal process will not be honored.”
=
Most likely this will be turned down by the Secretary. Now, you are on your way to the Federal Court of Appeals for Veterans Claims. Your next step you will file a Notice of Disagreement (NOD) with the Secretary. The VA will deny. You then file with the Board of Veterans Affairs (BVA). As well the BVA will deny your claim. The process now gets to were you want to go, and that is the United States Court of Appeals for Veterans’ Claims.
=