Down Goes DOMA: The Affect on the U.S. Military

By Linda Tran, Summer 2013 CLASV Student Advisor

When the Defense of Marriage Act (DOMA) became effective in 1996, it prevented the federal government from recognizing the legal marriages of same-sex couples for the purpose of federal laws or programs.[1]  Same-sex spouses were denied federal benefits such as Social Security, veterans’ benefits, health insurance, and retirement savings.[2]  This part is also known as Section 3.[3]  The other part of DOMA, known as Section 2, allows states to refuse to recognize the legal marriages of same-sex couples from other states.[4]  Section 3 of DOMA was the part that was declared unconstitutional by the Supreme Court.[5]

The repeal of Section 3 should grant military families benefits such as military health insurance, increased base and housing allowances, relocation assistance, and surviving spousal benefits.[6]  In addition to those benefit specifically available to military families, the general federal benefits should also include social security benefits for widows and widowers, joint income tax filing and exemptions from federal estate taxes, and immigration protections for binational couples.[7]

For example, a married same-sex couple residing in Colorado were prepared to move out of the country to keep their family together due to DOMA’s restrictions on same-sex marriages. [8] One of them is an Irish citizen and is in the United States under a work visa which allows her to be with their three children.[9]  However after the repeal of Section 3, the spouse was granted a green card and the couple is one step closer to providing stability for their family.[10]

For now, the Department of Defense is working on issuing military ID cards to same-sex spouses and the estimated turnaround time for this process is about 6 – 12 weeks.[11]  The Pentagon has also issued a statement that reiterated that the Department will implement the benefit changes as soon as possible for same-sex spouses.[12]  It is also important to remember that marriage records are publically available and may affect those who wish to keep their sexual orientation private.

For additional information, please visit the following organization’s website:

  • OutServe-SLDN (http://www.sldn.org/) is an association of actively serving LGBT military personnel that is dedicated to “bringing about full LGBT equality to America’s military and ending all forms of discrimination and harassment of military personnel on the basis of sexual orientation and gender identity.”  The association also provides direct legal services to servicemembers and veterans regarding its mission.


[1] 1 U.S.C.A. § 7 (West 2013).

[2] GLAAD (July 7, 2013), http://www.glaad.org/marriage/doma.

[3] Defense of Marriage Act, Pub. L. No. 104–199, 110 Stat. 2419 (1996).

[4] 28 U.S.C.A. § 1738C (West 2013).

[5] U.S. v. Windsor, No. 12-307, 2013 WL 3196928, at 4 (S.Ct. June 26, 2013).

[6] GLAAD, supra.

[7] Id.

[8] Joey Bunch, Boulder lesbian couple gets green card after DOMA fails, The Denver Post (July 5, 2013, 11:52 PM), http://www.denverpost.com/breakingnews/ci_23604690/lesbian-couple-from-boulder-get-green-card-after.

[9] Id.

[10] Id.

[11] Amanda Lucidon, For some same-sex military spouses, the harm of DOMA is forever, (June 26, 2013, 10:16 AM), http://usnews.nbcnews.com/_news/2013/06/26/18962888-for-some-same-sex-military-spouses-the-harm-of-doma-is-forever?lite.

[12] Id.

The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia. 

 

Veterans’ Courts: A Judicial Model for Treating the Invisible Wounds of War

By J. Justin Collins, CLASV AmeriCorps Summer 13 Fellow & Student Advisor

Since 2001, approximately 2.2 Million servicemen and women have deployed overseas in support of Operation Enduring Freedom (“OEF”) and Operation Iraqi Freedom (“OIF”). [i]  Of these deployed servicemembers, 36.7% took small arms fire, 48% killed an enemy combatant, 51% handled human remains, 28% were responsible for the death of a non-combatant, and 86% knew someone who was killed or seriously injured.[ii]  As these men and women return from overseas, they bring with them a different kind of battlefield trauma: the invisible wounds of war.  Now more than ever before, mental health injuries and other cognitive disorders are the most substantial threat to the health and wellbeing of our returning veterans.

While Post-Traumatic Stress Disorder (“PTSD”), Traumatic Brain Injury (“TBI”), and other combat related mental health conditions are relative newcomers to the realm of clinical pathology, their effects are nothing new.  We have observed the psychological effects of battlefield trauma for generations.  However, lacking a true understanding of these conditions, they were mistakenly described as insanity, melancholia, shell-shock, combat fatigue, and nervous exhaustion.[iii]  It was not until after the War in Vietnam that researchers began to explore the effects of combat on veterans’ mental health.[iv]  The American Psychiatric Association only formally recognized PTSD as a mental health pathology in 1980 when it was included in the Diagnostic and Statistical Manual of Mental Disorders.[v]

Armed with a greater understanding of theses invisible wounds, we are now aware that our combat veterans face substantial psychological challenges as they return home and attempt to transition back into their families and communities.  According to the National Center for PTSD, approximately 770,000 OEF/OIF Veterans are currently suffering from PTSD.[vi]   These veterans often experience flashbacks, hyper-vigilance, exaggerated startle response, difficulty concentrating, loss of sleep, irritability, depression, and bouts of uncontrollable rage.[vii]  Without treatment, those suffering from these conditions treat their symptoms by avoiding stimuli associated with the trauma, withdrawing from social settings, practicing emotional avoidance and isolation, and self-medicating with drugs and alcohol.[viii]

Perpetuated by misunderstanding and an ingrained military culture of denial, many veterans don’t recognize their illness or don’t seek treatment for fear of being seen as fragile or weak.[ix]  As these invisible injuries continue to go untreated, they lead to more serious problems.  Emotional withdrawal and anti-social behavior lead to interpersonal problems, friction with family and friends, depression, self-blame, and guilt.[x]  But the challenges for those suffering from mental health injuries do not stop there.

Eventually, veterans begin to face problems of unemployment, homelessness, and criminality.[xi]  The number of OEF/OIF Veterans living on the streets, at risk of losing their homes, living in temporary housing, or receiving federal vouchers for rent has more than doubled since 2010.[xii]  Studies are also showing a link between combat related mental illness and substance abuse.[xiii]  As these invisible wounds continue to go untreated, suffers fall into a cycle of addiction, associated criminality, arrest, prosecution, conviction, incarceration, release, relapse, criminality and re-arrest.[xiv]  Unsurprisingly, approximately 346,500 veterans are currently incarcerated in our jails and prisons.[xv]

Fortunately, a new judicial model, the Veterans’ Court, promises to put an end to this vicious cycle.  An innovative spin on a familiar concept, veterans’ courts are modeled after the popular drug treatment court approach.  The basic structure is simple.  Justice involved veterans, who have a treatable mental health or substance abuse condition related to or resulting from their combat service, are diverted out of the traditional criminal justice system into a special veterans’ court docket.[xvi]  Instead of going to jail, a veteran agrees to plead guilty to a suspended sentence and begins a program of judicially supervised treatment.

This non-adversarial approach relies upon two fundamental principles: treatment and accountability.[xvii]  Veterans in the program participate in regular court appearances, random drug testing, a sanction and incentive structure, intensive and coordinated rehabilitation and education, and supervision by law enforcement.[xviii]  If the veteran recidivates, their sentence is imposed and they are incarcerated.  However, if they successfully complete their treatment program, they are released from their sentence and can rejoin society.[xix]

A unique aspect of the veterans’ court model is that it can function on little additional funding.  Because justice involved veterans are already eligible for services through the VA Veterans Health Administration, no additional funding is required for mental health and substance abuse treatment services.[xx]  Additionally, partnerships with community service organizations and veterans outreach groups provide further resources.  In addition to VA treatment services, veterans’ courts have been successful in bringing together resources for academic and vocational skills improvement, residential/housing assistance, outpatient and transition support, and job placement and job retention services.[xxi]  Volunteer commitments from court staff and case managers can bring the remaining cost to almost negligible amounts.[xxii]

The veterans’ treatment court model is also designed specifically to serve military clientele.  Many veterans’ courts have implemented mentorship programs to pair current program enrollees with veterans who have survived their own struggles with mental health injuries.[xxiii]  Finding that veterans were more likely to respond favorably to another veteran than to others who did not have similar experiences, the mentorship component is proving to dramatically increase the effectiveness of the veterans’ court model.[xxiv]  The hierarchical structure of the veterans’ court approach is also producing favorable results.  As veterans enter the program, many treat the court as a chain of command with the judge as a quasi-commanding officer.[xxv]  Familiar and comfortable with this paradigm, veterans are often seen standing before the judge at ‘parade rest’, entirely of their own accord.[xxvi]

Perhaps most importantly, the veterans’ court model works.  A survey of veterans’ courts from across the country shows a successful program completion rate of 69%.[xxvii]  While the veterans’ court approach has not been around long enough to generate statistically significant samples, similar diversion and treatment models have been effective at reducing recidivism rates from 70% without any program to between 16% and 27% for successful graduates.[xxviii]  In addition to producing results for veterans, this model is also reaping benefits throughout the community as well.  The clustering of veterans within the program allows for more efficient disbursement of VA treatment resources.[xxix]  While incarceration costs an average of $30,000-$32,000 per inmate/per year, a successful veterans’ court completion costs only $2700, simultaneously alleviating overcrowded prisons and the burden on the taxpayer.[xxx]

As this model continues to provide incredible results for veterans and their communities, we move closer to achieving a realistic and sustainable judicial approaching to treating the invisible wounds of war.  Veterans’ Treatment Courts are now operating in 168 jurisdictions across the country with resounding success.[xxxi]  By focusing on treatment of the underlying condition, this model is breaking the cycle of recidivism, reducing a substantial burden on our criminal justice system, making our communities safer, and giving our veterans the opportunity to become productive members of society once again.

 


[i]       Army OneSource, “Veterans Treatment Court: Best Practices”, Webinar, 2013.

[ii]       Id.

[iii]      “PTSD: Not a New Ailment On ‘Wartorn’ Battlefield”, NPR, 2010.

[iv]      “Helping Those Who Serve : Veterans Treatment Courts Foster Rehabilitation and Reduce Recidivism for Offending Combat Veterans”, Jillian M. Cavanaugh, New England Law Review, 2011.

[v]       Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders: DSM-III, at 236-38 (3d ed. 1980).

[vi]      Army OneSource, supra.

[vii]     “Warzone Related Stress Reactions: What Veterans Need to Know”, National Center for PTSD, Julia M. Whealin, Ph.D.

[viii]     Id.

[ix]      Army OneSource, supra.

[x]       Id.

[xi]      Cavanaugh, supra at 469.

[xii]     Id.

[xiii]     “An Achievable Vision: Report of the Department of Defense Task Force on Mental Health”, pg. 60, June 2007.

[xiv]     Buffalo Veterans Treatment Court website, www.buffaloveteranscourt.org,2013.

[xv]     Army OneSource, supra.

[xvi]     Cavanaugh, supra. at 475.

[xvii]    Id. at 471.

[xviii]   “Defining Drug Courts: The Key Components”, U.S. Department of Justice, 1997.

[xix]     Id.

[xx]     “An Inventory of VA Involvement in Veterans Courts, Dockets and Tracks”, Jim McGuire, PhD, VA Veterans Justice Programs, February 7, 2013.

[xxi]     Buffalo Veterans Treatment Court website, www.buffaloveteranscourt.org,2013.

[xxii]    Cavanaugh, supra. at 477.

[xxiii]   Id. at 476.

[xxiv]   “Veterans Treatment Courts Developing Throughout the Nation”, Hon. Robert T. Russell, 2009.

[xxv]    Army OneSource, supra.

[xxvi]   Id.

[xxvii]   McGuire, supra.

[xxviii] Cavanaugh, supra. at 472.

[xxix]   Army OneSource, supra.

[xxx]    Id. at 478.

[xxxi]   Cavanaugh, supra. at 472.

The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia. 

 

The DREAM Act–Allowed to Serve?

By Eric Cheung, Summer 2013 CLASV Student Advisor

Wouldn’t you agree that our Armed Forces should accept any individual who is well-educated, has no criminal past, and most importantly, is ready and willing to serve our country?  In fact, this is not the case for undocumented immigrants.  The United States Armed Forces will not allow an individual who is not a permanent resident of the United States to serve in the Armed Forces.  However, one bill- Development, Relief, and Education for Alien Minors (“DREAM Act”)[1] –could change the lives of thousands of undocumented immigrants.

The effect of the DREAM Act would be to give currently-undocumented immigrants who meet certain criteria a chance to serve in the United States military.  If the United States was built on a foundation of freedom and opportunity, shouldn’t these currently undocumented immigrants have a voice?   As drafted, the DREAM Act would have provided undocumented immigrants temporary residency if they met certain requirements.  Generally, the requirements were that the undocumented immigrant arrived in the United States before 16 years of age, lived continuously in the US for 5 years, graduated from an American high school or obtained their general education development (GED), and be of good moral character.  The individuals targeted to be affected by this legislation would have had to prove those requirements and not have any criminal background.  If they met those requirements, an undocumented immigrant could receive temporary residence and join the Armed Forces.  The DREAM Act was blocked, however, and there are countless individuals who meet all of these requirements but are not allowed to serve.  Even worse, there are individuals who participate in the Junior Reserve Officers’ Training Corps (JROTC) programs in high school and excel in class but are effectively blocked from joining the Armed Forces.

The DREAM Act would allow excellent candidates who could be graduating at the top of their class to do the one thing they want the most – serve their country.  This would allow more people to join the Armed Forces who not only want to, do so but are also highly qualified.  An estimation done by the Migration Policy Institute suggested that 31,000 recent immigrants would choose to enlist if the DREAM Act were passed.[2]   The DREAM Act has been growing in popularity, such that even President Obama has given support to it.  Additionally, some states have passed their own form of the DREAM Act.  The following states have legislation which supports tuition prices and financial aid for state universities: Texas, California, Illinois, Utah, Nebraska, Kansas, New Mexico, New York, Washington, Wisconsin, Massachusetts, and Maryland.[3]  To support the DREAM act, you can write your local representatives and ask them to support the bill and our Armed Forces.

 


[1] http://naid.ucla.edu/uploads/4/2/1/9/4219226/no_dreamers_left_behind.pdf

[2] http://www.washingtonpost.com/wp-dyn/content/article/2011/02/08/AR2011020806151_2.html?sid=ST2011020806785

[3] http://www.visanow.com/state-level-dream-acts/

The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia.  

MIA: Locating Military Servicemembers

By Alyssa Digiacinto, GMUSL ’13, CLASV Spring 2013 Student Advisor

Instituting a legal action can be unpleasant.  It can be even more so when you are unable to locate a necessary party. What if that party you are trying to locate is a servicemember?

As you are aware, servicemembers lead very different lives than civilians lead.  Servicemembers often face restrictions regarding the information that can be obtained on any one of them, whether this relates to station location, address, or access to materials, and servicemembers do not necessarily have the freedoms that civilians enjoy.  To further complicate things, many servicemembers may simply be unable to be present at legal proceedings, to timely respond to deadlines (based upon their remoteness, distance, or the sheer nature of their work), or even to receive notice that legal proceedings have been initiated against them.

Unsurprisingly, the privacy protections that are often afforded servicemembers, based upon considerations of fairness, national security and safety, out of respect for the servicemember and his or her family, are often counterbalanced by notions of fairness and justice to the civilians who may find themselves in legal disputes with servicemembers.  Ideally, servicemembers should not be able to escape or evade their legal obligations based upon the nature of their occupation and inaccessible, sometimes unidentifiable, location.  However, the alternative of having servicemembers forfeit their rights in order to facilitate the ease with which legal processes may run is equally unacceptable.  The question then becomes:  What is the proper balance between these competing interests?  More importantly, to what extent should legal proceedings be more flexible in order to account for the contingencies that are likely to arise in legal proceedings that involve servicemembers?

Legislation may be part of the answer.  The Servicemembers Civil Relief Act (SCRA) “was passed by Congress to enable those serving in the military to devote their entire energy to the defense needs of the nation and to provide for the temporary suspension of judicial and administrative proceedings and transactions that might adversely affect the civil rights of servicemembers during their military service.”[1]  Among the many invaluable protections afforded servicemembers through the SCRA, there are potential safeguards that may allow the servicemember an opportunity to stay proceedings or overturn default judgments.  It is likely the case that public policy recognized the somewhat fragile line between demanding efficient and speedy legal processes when servicemembers are involved, and allowing for a degree of elasticity in the process and timeframe so that servicemembers are not unduly burdened or disadvantaged.

It remains to be seen how these issues will be fully addressed, however, the expanding list of resources and guidance relating to this area provides a helpful starting point in addressing the issue of the defendant who’s whereabouts, whether voluntarily or involuntarily, remains unknown.

Helpful Resources (locating servicemembers):[2]

  • Contact the local armed forces recruiter.
  • Base locators at installations where servicemembers were last stationed.  Contact the installation’s information operator to provide further information for an inquiry.
  • Contact Armed Forces legal assistance offices at http://legalassistance.law.af.mil/content/locator.php.
  • Use worldwide military locators (including Army, Navy, Marine Corps, and Air Force):
    • To see a list of worldwide military locators, see https://kb.defense.gov/ and then select “Locating Service Members or Getting a Mailing Address.”
    • From there, you will see a listing of contact information for the major military locators.

 

 

 


[1] Mark E. Sullivan, The Military Divorce Handbook:  A Practical Guide to Representing Military Personnel and Their Families 55-56 (2d ed. 2011).

[2] Id. at 1-6.

 

The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia.  

Are Disability Benefits Received in Lieu of Retirement Pay Divisible Marital Property?

 By Jessica O’Connell GMUSL ’13, CLASV Spring 2013 Student Advisor

Military divorce cases involve a complex convergence of state and federal laws.  States vary in their interpretation and application of the federal laws governing veterans’ disability benefits and their use in divorce proceedings.  Last October, the U.S. Supreme Court declined to consider this issue, which states are sharply divided over: whether federal law bars state divorce courts from considering a veteran’s disability benefits marital property that can be divided between divorcing parties.[1]  This post outlines what you need to know as a military servicemember, veteran, or spouse before obtaining a divorce.

Under federal law, the Uniformed Former Spouses’ Protection Act (“USFSP”) authorizes state courts to divide a servicemember’s disposable retired pay in a divorce.[2]  “Disposable retirement pay” is defined as “the total monthly retired pay to which a member is entitled,” less any authorized deductions; among those authorized amounts deducted from a servicemember’s retired pay are disability benefits.[3]  The USFSP does not require any particular division of the servicemember’s military retirement, but rather authorizes states to apply their own laws regarding division of military retirement in divorce cases.[4]

Until the implementation of concurrent receipt of disability and retirement pay, when a retired servicemember (20 years or more)[5] elected to receive tax-free disability pay, he or she had to give up a similar amount of retirement pay.[6]  Although disability pay cannot be divided as part of a divorce, when a servicemember gave up retirement pay in exchange for disability pay, this reduced the amount of retirement pay a divorcing spouse could receive.[7]  For those who are receiving retirement pay, but are not eligible for concurrent receipt, disagreement often arises in cases when post-divorce the disability waiver is elected, and the former non-military spouse faces an unanticipated reduction in the amount of military retirement he or she expected to receive.

The dispute regarding whether disability pay may be considered in a divorce raises issues under 38 U.S.C. § 5301(a) which deals with veterans’ disability benefits and makes them immune from “taxation, claims of creditors, attachment, levy and seizure.”  This Section fails to address whether disability benefits are marital or personal property and whether or not they should be included as part of a veteran’s income for support purposes.  However, the Supreme Court in Rose v. Rose made it clear that the anti-attachment clause of Title 38 does not apply to court orders which require a veteran to support his or her family.[8]  The Rose Court further found that the legislative history of veterans’ disability benefits demonstrated an intent to compensate the veteran “and his family.”[9]

Most states, including Virginia, have adopted the approach that disability pay can be used towards alimony,[10] and base this reasoning on Supreme Courts’ decision in Rose v. Rose which held that the legislative history of the veterans’ disability benefit scheme demonstrates an intent to compensate the veteran “and his family.”[11]  On the other hand, a minority of states have held that veterans’ disability benefits are not divisible property and therefore are not entitled to be used in calculating support.[12]  While states are divided on whether disability benefits may be considered in awarding familial support, the USFPA makes it clear that disability payments under Title 38 of the U.S. Code are not subject to property division upon divorce.[13]

The Supreme Court has spoken to this issue in Mansell v. Mansell, a case involving a state court’s decree which divided a military retiree’s disability benefits as part of the property settlement, and not as spousal or child support.[14]  In Mansell, the Court held that federal law prohibits state courts from dividing or partitioning disability benefits as community or marital property upon divorce, and also prohibits treating waiver of military retired pay (in order to obtain VA disability benefits) as marital or community property.[15]

While the Supreme Court and Congress agreed that VA disability benefits are not subject to property division at divorce, there is no federal law, and the Supreme Court has never held, that VA benefits may not be considered as a factor in dividing other assets, namely spousal support,[16] and a number of state courts have held that such consideration is not forbidden under Mansell.[17]  Further, a majority of state courts, including Virginia, have held on similar grounds that federal law does not prevent a state court from enforcing a contractual division (such as a property settlement of disability benefits).[18]


[1] Barclay v. Barclay, 133 S. Ct. 176, 184 L. Ed. 2d 235 (2012), cert. denied.

[2] See 10 U.S.C. § 1408.

[3] 10 U.S.C. § 1408(a)(4).

[4] 10 U.S.C. § 1408.

[5] Those servicemembers retired with less than 20 years are ineligible for concurrent receipt and must waive a portion of their retirement when electing to receive tax-free disability pay.  See http://www.military.com/ContentFiles/NEW%20_Retirement_HR_1588.htm.

[6] Understanding the Division of Military Pensions in Divorce, Divorcenet.com, http://www.divorcenet.com/states/new_york/military_divorce_and_pensions (last visited April 3, 2013) (sometimes, it is dollar-for-dollar).

[7] Id.

[8] 481 U.S. 619, 634 (1987).  The Rose case involved nonpayment of child support, however the Supreme Court views both child support and spousal support together as familial support.

[9] Id.

[10] Tom Philpott, Is Counting VA Disability in Divorce Proceedings Legal?, Military.com, (May 18, 2012) http://www.military.com/features/0,15240,245321,00.html.

[11] Rose, supra note 7 at 634.

[12] See Hagen v. Hagen, 282 S.W.3d 899, 903 (Tex. 2009) (holding veterans’ benefits which are not in lieu of retirement benefits are not subject to alimony payment calculations); Youngbluth v. Youngbluth, 6 A.3d 677, 680 (Vt. 2010) (holding “at least when the original property division order states an exact percentage and contains no indemnity provision – a former spouse cannot use an enforcement proceeding to receive an increased percentage to offset the military servicemember’s subsequent application and receipt of disability benefits); see also Davis v. Davis, 777 S.W.2d 230, 232 (Ky. 1989) (holding that courts in Kentucky are prohibited from treating a retiree’s disability payments as marital property).

[13] 10 U.S.C. § 1408.

[14] 490 U.S. 581 (1989).

[15] Id. at 594-95.

[16] Several jurisdictions have held that federal law does not bar considering veterans’ disability pay as a source of income in awarding spousal maintenance, even where disability benefits may be used to make such payments.  See, e.g., Clausen v. Clausen, 831 P.2d 1257, 1263 n.9 (Alaska 1992); see also, In re Marriage of Kraft, 832 P.2d 871 (Wash. 1992); Womack v. Womack, 818 S.W.2d 958 (Ark. 1991); In re Marriage of Nevil, 809 P.2d 1122 (Colo. Ct. App. 1991); Riley v. Riley, 571 A.2d 1261 (Md. Ct. Spec. App. 1990); Lambert v. Lambert, 395 S.E.2d 207 (Va. Ct. App. 1990); Weberg v. Weberg, 463 N.W.2d 382 (Wis. Ct. App. 1990).

[17] Bottigi v. Wall, 765 N.E.2d 819 (Mass. App. Ct. 2002); In re Strong, 8 P.3d 763 (Mont. 2000); Bishop v. Bishop, 440 S.E.2d 591 (N.C. App. 1994); Vitko v. Vitko, 524 N.W.2d 102 (N.D. 1994); In re Murphy, 862 P.2d 1143 (Mont. 1993).

[18] White v. White, 568 S.E.2d 283, 285 (N.C. App. 2002) (Mansell “does not prohibit military spouses from contracting away their disability benefits”); see also, McLellan v. McLellan, 533 S.E.2d 635 (Va. 2000); Price v. Price, 480 S.E.2d 92 (Ct. App 1996).

The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia.  

Preparing for the Unique Challenges of a Military Divorce

By:  John Austin Timberlake, CLASV Spring 2013 Student Advisor

The prospect of filing for divorce and process itself can be difficult in any marriage, and there are many challenges that couples must face and issues that neither thought of going into it.  Military divorces have the potential to add further complications due to the unique circumstances of military life and the special regulations surrounding it.

It is important to recognize that there are differences between filing for divorce in a civilian marriage and in one in which one spouse is an active duty, reserve, or retired servicemember.  While they are generally alike and involve substantially the same process, there are some different rules that govern such things as where you can file, child and spousal support, child custody, and pension/benefit divisions.

With this in mind, there are some things that are beneficial to know and be ready for going into a military divorce.  The first and foremost among these is that you should be prepared for a long process.  In addition to mandatory separation periods, discussed further below, filing for divorce in a military marriage can be delayed by deployments and other military-related requirements.  If a spouse is still on active duty, any decrees must conform to the requirements of the SCRA.  What follows are a few pieces of advice to prepare any servicemember or military spouse for some of the issues they can expect when filing for divorce…

Know where you can and wish to file for divorce:

Part and parcel of military life can be constant changes in location.  As such, it is common for military couples to have been married in one state, live in another, and own property in yet another, be it from a previous duty station or perhaps where they intended to eventually settle.  The consequence of this is that there are often multiple states where a military spouse can file for divorce.  So long as one spouse can establish residency, there is jurisdiction to file in that state.

When making the decision where to file, it is important to take into consideration the laws of each state and how they might affect you.  Different states have different rules regarding such things as division of benefits.  Puerto Rico, for example, does not require the division of a servicemember’s benefits with his spouse upon divorce.  Failing to investigate the divorce laws of each state can have adverse consequences on one party or the other when it comes to things like division of property, child/spousal support, and child custody.

Know the mandatory separation laws in the state where you intend to file:

Every state now has some form of no-fault divorce, but most states also have a mandatory period of separation before filing for no-fault divorce.  The rules regarding this separation period differ from state to state.  As such, it is important to determine exactly when physical separation commenced, as well as what counts towards the separation period.  In Virginia, for example, the period where a spouse is on military deployment can count towards the separation period so long as there is bona fide intent by at least one of the spouses for the separation to be permanent.  There are many important things to know depending on which state you are filing in, such as the length of time separated required before filing for divorce, whether a temporary reconciliation and/or briefly resuming cohabitation resets the clock, and what impact the existence of children has on the mandatory separation period.

If a spouse is active duty military, it is important to have an understanding of their intentions regarding their future in the military:

As stated earlier, if you are a military spouse, it is important to know whether your spouse will be active duty upon the time of filing, as that can affect when certain hearings could be held or decrees made.  However, that is not the only decision by your spouse regarding their military future than impacts divorce settlements and awards.

Whether your spouse intends to complete the 20-year service time requisite for military retirement impacts separation bonuses, which need to be contemplated in any divorce settlement.  Additionally, if your spouse intends to transfer to reserve status, you must look at how that will affect his/her pay and points towards retirement.

Be prepared to contemplate division of military pensions and benefits:

A common misconception regards spouse’s rights to a servicemember’s benefits after divorce.  Military spouses are not automatically entitled to any SBP (Survivor Benefits Plan) as a beneficiary upon divorce.  As such, any provisions for division of benefits must be addressed in a marital settlement agreement.

The computation of retired pay is an issue that is highly likely to become an issue in a military divorce.  Unlike civilian divorces, where state law governs, military divorces must also follow the Uniformed Services Former Spouse’s Protection Act (USFSPA).  Unfortunately, the USFSPA does not provide a formula to determine how much a spouse should receive of his/her spouse’s military pension.  As stated earlier, different states have different rules governing the division of military pensions in divorce.  However, the USFSPA stipulates that the state where the military member resides always holds the power to divide the military pension.

References:

Rebekah Sanderlin, Military Divorce: Why Where You File Matters, http://www.military.com/spouse/relationships/military-divorce/military-divorce-where-you-file-matters.html

Marsha L. Thole, Military and Divorce, Divorce Source, http://www.divorcesource.com/ds/military/military-and-divorce-564.shtml

Divorce In Military Families – How It’s Different & What You Need To Know, Stateside Legal, http://statesidelegal.org/divorce-military-families-how-it-s-different-what-you-need-know

 

The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia.  

Taking the Stigma Away: Mental Health Treatment and its Implications for Obtaining Security Clearances

By:  Rebecca Cohen, CLASV Spring 2013 Student Advisor

As the war in Afghanistan continues into its twelve year, and forces from the Iraq War begin to draw down, a new focus has been put on the challenges that servicemembers now confront when they return home.  A major obstacle they must face relates to their mental health and emotional well-being.  Although there has recently been increased media attention devoted to the subject, a large stigma stills exists in the military community against acknowledging and seeking professional help for mental health issues, particularly for Post Traumatic Stress Disorder (PTSD).

Many are hesitant to publicly admit that they are suffering from PTSD, yet statistics show that the disorder is very common among veterans.  A report from the Department of Veteran Affairs showed that over 250,000 veterans of Operation Enduring Freedom, Operation Iraqi Freedom, and Operation New Dawn from October 1, 2001 through June 30, 2012 sought treatment for PTSD from VA centers.[1]  When one takes into consideration that many veterans suffering from PTSD have not sought treatment and are therefore unaccounted for, the number becomes staggering.  In fact, an estimated 11% to 20 % of Iraq and Afghanistan veterans suffer from PTSD.[2]

One of the major reasons veterans and servicemembers do not seek professional help for PTSD is because they worry that receiving treatment will negatively impact their career.  Often, they fear that getting the help will hinder their ability to obtain a security clearance.  In a process that is already drawn out and frequently tedious, it is understandable why one would wish to avoid the logistical and personal ramifications that may come from formally acknowledging the diagnosis.

However, the Defense Department has taken significant steps to prevent this from happening.  It is a misconception that one’s security clearance will be jeopardized because of mental health treatment.  According to data from 2009, approximately 99.98 percent of U.S. Army clearance applicants who reported psychological concerns on their Standard Form 86 received or maintained their security clearance.[3]

Furthermore, as part of the efforts to de-stigmatize mental health treatment, in 2008, Defense Secretary Robert Gates changed the disclosure requirements under Question 21 of the Standard Form 86.  Under this question, which asks about consultations with mental health professionals, one may answer “no” if it was “related to adjustments from service in military combat environments.”

Although more needs to be done to fully remove the stigma against receiving mental health treatment, it is important to know that such treatment will not interfere in someone’s chances to receive a security clearance.  PTSD is a legitimate and serious issue that interferes with a veteran and his or her family’s daily life.  Treatment of the syndrome should not and does not have be ignored for the sake of professional advancement.

There are many online resources that give information, support, and assistance to servicemembers and veterans who suffer from combat stress.  The following websites are just a few of the many:

http://www.dami.army.pentagon.mil/site/PerSec/Q21.aspx

http://www.afterdeployment.org/

http://dcoe.health.mil/Families.aspx

http://www.realwarriors.net/

 


[1] “Report on VA Facility Specific Operation Enduring Freedom (OEF), Operation Iraqi Freedom (OIF), and Operation new Dawn (OND) Veterans Coded with Potential PTSD –Revised December 2012, Office of Public Heath, Veterans Health Administration, Department of Veterans Affairs

[2] National Center for PTSD, http://www.ptsd.va.gov/public/pages/how-common-is-ptsd.asp

[3] http://www.army.mil/article/24053/financial-problems-or-ptsd-need-not-affect-security-clearance/

 

The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia.  

Veteran Suicides

By:  Linda Santiago, CLASV Spring 2013 Student Advisor

Currently, one veteran commits suicide every 80 minutes.  Some estimates state that 150,000 Vietnam Veterans have committed suicide.  This is not a new problem, but rather an enduring one.  What can be done to address this epidemic?

Authors from a recent Philly op-ed cite to statistics showing that 22 veterans take their lives every day – 70 percent over 50 years old.[1]  The actual number or rate of veteran suicides, however, is not known because no nationwide surveillance system for suicide among all veterans exists.[2]  Nonetheless, we can probably agree that any number of veteran suicides is too high.

The Philly op-ed authors explain that four factors contribute to veterans’ emotional devastation– first, war is vile, replete with death, violence, and maiming; second, veterans returning home from war feel isolated from their families and society who cannot relate to their war experiences; third, veterans are mislabeled as “mentally ill” and society assumes veterans can only be helped by drugs and therapists; and last, veterans’ suffering and isolation are worsened by taking a cocktail of prescribed drugs to treat their “mental illness.”  The authors argue that one way to help veterans is to stop mislabeling them as mentally ill and rather, integrate them back into society through community-related activities (e.g., mentoring, volunteering, sports, political advocacy, etc.).

President Barack Obama offers alternative solutions as well.  Last August he signed an Executive Order – “Improving Access to Mental Health Services for Veterans, Service Members, and Military Families.”[3]  To prevent veteran suicide, the President directed the Department of Veterans Affairs to increase the capacity of its crisis hotline by 50 percent; ensure that any veteran identifying himself/herself as being in crisis connects with a mental health professional or trained mental health worker within 24 hours or less; hire new mental health professionals; implement a national suicide prevention campaign focused on connecting veterans and service members to mental health services; and review existing mental health and substance abuse prevention programs to identify those programs which are the most effective.

The palliative actions set forth in the Executive Order, however, fail to address the underlying factors raised by the Philly op-ed authors, which lead to high numbers of veteran suicides.  Identification of disorders (e.g., Posttraumatic Stress Disorder; Traumatic Brain Injury; Clinical Depression; Alcohol or Drug Addiction; Bipolar Disorder; Schizophrenia, etc.) that are associated with an elevated suicide risk and correct diagnosis are crucial to identifying the correct treatment for prevention of veteran suicides.[4]

While a clinical approach is needed, it must coincide with stepped up education of mental health professionals and the raising of public awareness to this dire situation.  War has a very traumatic impact on human consciousness and the last thing a veteran needs is to be incorrectly labeled as mentally ill.  The American populace needs to become more involved so as to remove any social stigma associated with the symptoms, emotions, and challenges a veteran experiences.  Veterans need to feel safe and be reassured that what they are going through is normal and fixable.  After all, it is our own Government’s doing in placing veterans in harm’s way.  Our Government is indebted to these servicemen and women to make them feel whole again.   Much can be done at the local, state, and Federal levels to ensure that these veterans have housing, economic security, employment opportunities, and a support network to remind them that we are in this together and that they are not alone.

 

 

 


[1] Paula J. Caplan and David Sutherland, Unseen Wounds, Philly Inquirer, Feb. 11, 2013, http://articles.philly.com/2013-02-11/news/37022089_1_department-of-veterans-affairs-million-veterans-war.

[2] Erin Bagalman, Suicide Prevention Efforts of the Veterans Health Administration, Congressional Research Service, Jan. 10, 2013, https://www.fas.org/sgp/crs/misc/R42340.pdf.

[4] Shaili Jain, MD, Preventing Veteran Suicide, PLOS Journals, Sept. 27, 2012, http://blogs.plos.org/mindthebrain/2012/09/27/preventing-veteran-suicide/.

 

The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia.  

Veteran Hiring Incentives On the Rise

By Krista Goelz, CLASV Student Spring 2013 Advisor

In 2012, on average, 9.9% of veterans were unemployed, which is down from an all time high in 2011 of 12.1%. However, it is still much higher than the national unemployment average and equals approximately 205,000 veterans of the wars in Iraq and Afghanistan who are currently without work.[1] But there is good news: recently passed tax incentives are compelling companies to hire more veterans than ever before. The VOW to Hire Heroes Act of 2011 provides tax incentives for employers to hire and train veterans who are unemployed or have service-connected disabilities.[2]

In February, Wal-Mart pledged to hire 100,000 recently discharged veterans in the next five years.[3] Wal-Mart has stated that they will hire any veteran, who was honorably discharged, within twelve months of leaving active duty service. To find more information on Wal-Mart’s program, please visit: http://walmartcareerswithamission.com.

However, Wal-Mart is not the only employer who has been actively trying to recruit veterans to its workforce.   This month, Disney announced plans to hire another 1,000 veterans over the next two years, after hiring 1,300 this past year.[4]

Additionally, HirePurpose, an organization and staffing agency that matches veterans with civilian career opportunities, has listed the top five companies currently hiring veterans. In order, they are: (1) Booz Allen Hamilton (http://www.boozallen.com/consulting/better-our-world/supporting-veterans); (2) Science Applications International Corporation (SAIC) (http://jobs.saic.com/job/Mclean-Operation-MVP-(Military-Veteran-Program)-Job-VA-22101/1727544/) ; (3) Northrop Grumman (http://www.northropgrumman.com/Careers/MilitaryVeterans/Pages/default.aspx) ; (4) USAA (https://www.usaa.apply2jobs.com/ProfExt/military_recruiting.html) ; and (5)  L-3 Communications (http://www.l-3com.com/careers/transitioning-military.html).[5] Please visit their websites for more information on each company’s hiring initiatives.

Another beneficial website for veterans seeking employment is http://www.hireheroesusa.org. HireHeroes is a non-profit dedicated to finding employment opportunities for veterans, at no cost to them. They not only assist with matching veterans with an employer, they also offer resume reviews and revisions, teach interviewing skills, and help the veteran identify any VA benefits to which they may be entitled.

For veterans seeking federal employment, http://www.fedshirevets.gov is a website run by the U.S. Office of Personnel Management, meant to enforce President Barack Obama’s veterans hiring initiative. The website gives useful information on finding federal employment and how to take advantage of veteran’s preference. All federal job openings are posted on https://www.usajobs.gov. It is important to note that veterans are eligible for certain federal hiring preferences. The federal government assigns points to the most qualified candidates for a position. If you are a veteran, you may be eligible for an additional 5-10 points on your federal employment application.

You are eligible for a 5 point preference if you meet any of the following conditions: (1) served 180 or more consecutive days on active duty, any part of which occurred during the period beginning September 11, 2001 and ending on a future date prescribed by Presidential proclamation or law as the last date of Operation Iraqi Freedom; or (2) served on active duty between August 2, 1990 and January 2, 1992; or (3) served on active duty 180 or more consecutive days, any part of which occurred after January 31, 1955 and before October 15, 1976; or (4) you served on active duty in a war, campaign or expedition for which a campaign badge has been authorized or between April 28, 1952 and July 1, 1955.

You are 10-point preference eligible if you served at any time, and you: (1) have a service connected disability; or (2) received a Purple Heart.[6]

Finally, for employers, hiring veterans is an all around smart business move. Not only due to the recent tax breaks given to businesses that hire veterans, but also because of the unique skills veterans bring to their workforce. Veterans have a proven track record of loyalty, they are team players, they respond to directions well, and have increased retention rates and greater performance levels than the civilian workforce.[7]

 

 

 


[1] USA Today, Veteran Jobless Rate Falls but Remains High, http://www.usatoday.com/story/news/nation/2013/01/06/vets-jobless-rate-drops/1812667/ (January 6, 2013).

 

[2] United State Dep’t of Veterans Affairs, VOW to Hire Heroes Act of 2011, http://benefits.va.gov/vow/foremployers.htm (last accessed February 18, 2013).

 

[3] USA Today, Wal-Mart Pledges to Hire 100,000 Veterans, http://www.usatoday.com/story/news/nation/2013/01/15/wal-mart-hire-100000-veterans/1835397/ (January 15, 2013).

[5] HirePurpose, Top 5 Companies Hiring Veterans, http://hirepurpo.se/blog/top-5-companies-hiring-veterans/ (February 14, 2013).

[6] FedsHireVets.gov, Veterans Preference, http://www.fedshirevets.gov/job/vetpref/index.aspx (last accessed February 19, 2013).

[7] PR Web, Why Hiring Veterans is a Smart Business Move, http://www.equities.com/news/headline-story?dt=2013-01-20&val=945859&cat=business (January 20, 2013).

 

The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia.