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Something the U.S. Supreme Court will not intervene in, or fight over.
State court violation Separation of Powers DISABLED VETERANS
State court violations of veterans’ VA disability compensation in disregard of State law, as well the Constitution of the United States have been forwarded (6/23/14), to all nine Justices of the United States Supreme Court, who in 2012 denied a petition on this issue by disabled Air Force veteran Peter Barclay. Justices now have stored in their court clerk’s file, my questions of law. Public Law 95-30
“..there is no statutory prohibition against garnishment of military retired pay. ..a veteran’s disability compensation can be garnished in order to pay… ” However, there is prohibition that I find concerning these violations. Namely, “Separation of powers, Due Process, The Commerce Clause, Supremacy Clause,” as well, various veterans’ laws, the property protections of veterans benefits. The point of this mailing? This is now not something the Justices, and as well, the United States Senate and House Committee on Veterans’ Affairs now have not been made aware of. What they do with this information, if anything, will tell you a great deal. The parties have been advised of the following.
In State court cases involving divorce, our disabled veteran’s concerns are over rulings violating both state and federal law. Decades of continuing costly litigation, incurred in pursuing 14th Amendment property rights of veterans VA disability compensation being awarded to third parties in violation of federal law 38 USC 5301, 10 U.S.C. § 1408. This unlawful activity continues in all but a few state courts that do recognize it‘s federal exempt status. Disabled veterans need to know if it’s true that the “… essential purpose of the due process clause is to prevent the government from acting arbitrarily.”
Divorce is, and can be complicated process. However, keeping in mind, that in each case during the court’s initial property distribution rulings of alimony/support, before any conceivable consideration, in determining VA disability compensation as an award of alimony/support, first and foremost, the court’s duty to the veteran, enforcement of the protections secured by the Constitution. “State sovereignty is not a proper basis on which to rest jurisdiction. Instead the focus is on whether the defendant’s due process rights are infringed by the court’s assertion of jurisdiction.” Civil Procedure 4th Ed. West group.
“It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law.” See Atkins v. Parker, 472 U.S. 115, 128 (1985); Mathews v. Eldridge, 424 U.S. 319, 332 (1976)”
Oregon resident, Peter James Barclay, a disabled Air Force veteran, May 2 2012, filed with the United States Supreme Court a Petition for a writ of certiorari.
I. “The Court Should Grant Review to Determine Whether State Courts Are Erring as a Matter of Law By Preempting Federal Law with State Law Federal Law, by Considering VA Disability Pay Divisible Under State Community or Equitable Distribution Laws.”
II. “This Court Should Grant Review to Resolve the States’ Various Interpretations and Applications of Federal Law Governing Veterans’ Disability Benefits and State Communal and Equitable Property Laws in Favor of One Binding Precedent.”
On Oct 1 2012 Petition was DENIED.
This decision fell on all disabled veterans when Peter Barclay was denied his Constitutional rights by Oregon’s State and Supreme court and refusal of the United States Supreme Court to consider his petition. All the while interestingly, permanent alimony reform continues, and has been proposed in Oregon and, as well, legislated in several states, all without one thought of the disabled veteran.
I take that back. Yes, one State did think about the disabled veteran. In 1983, “..the Texas Supreme Court held that …Veterans Administration disability benefits …with the clear intent of Congress that these benefits be solely for the use of the disabled veteran.” And as so, legislated and made part of Texas law. Although alimony reform had been on the legislative agenda, they turned their thoughts once again to the disabled veteran. The Texas legislature in 2013 amended the law. Section 154.062(b), Family Code. Sec. 8.055. AMOUNT OF MAINTENANCE. “(a-1) For purposes of this chapter, gross income:
(5) all other income actually being received, including… United States Department of Veterans Affairs disability benefits ….”
The issue is VA medical disability compensation, the property rights of the disabled veteran, in what VA medical doctors, medical professionals have determined a disabled veterans injuries should be compensated for. If, and when the question is a disabled veteran’s VA disability compensation property rights, it’s time that disabled veterans voices be heard in a matter that has long concerned them. State court judges continue to ignore the disabled veteran, and the law, i.e., 38 USC 5301, 10 USC 1408. “Separation of powers” doctrine is mandated to end this attempt by the state court to manipulate, overlook, and circumvent the law, and manage to stick it to the disabled veteran.
It is said that no person can be deprived of life, liberty, or property, without due process of law. Forgotten long ago are the property rights of the disabled veterans. Why? It is clear the court’s have no legal right to, exercise, determine, or consider in any equitable calculation thereof, to divide federal VA disability benefits, in order to further enforce judgment arbitrarily in disregard of property rights. The “separation of powers” doctrine imposes the assumption that the state court, in attacking the disabled veterans legal right to claim as exempt, his or her VA disability compensation, further requires subject matter jurisdiction, which address the court’s constitutional or statutory power to entertain a particular controversy. State court’s have the sworn duty and responsibility to enforce federal law. The court’s continued attempt to override VA administered rehabilitative medical services determinations, of disability compensation is not within the courts purview, legal right or jurisdiction to invade.
Disabled veteran’s, and the “separation of powers” doctrine, both overlooked, ignored, for years, by most state court judges. Policy making outside their jurisdiction of constitutional boundaries in re-evaluating and considering long held established VA protocols, of a disabled veteran‘s VA disability compensation for purposes other than rehabilitation and health of the veteran. Substituting their judgment for the judgment of VA doctors and medical professionals. Violating the property rights of a disabled veteran’s earned VA disability compensation “..once they are delivered to the veteran..,” the blatant disregard of 38 USC 5301, “and shall not be liable to ..…or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.“ and the 14th Amendment, to further degrade property rights of the disabled veteran, runs afoul of the “separation of powers” doctrine. Injurious, and an abuse of power to allow what is happening, was this the intent of Congress?
A disabled veteran’s plea to the judge, “I have a very severe serious back injury, I do need all of my VA disability compensation.” The judge will, of course reply, “Are you a doctor?” The practice of medicine is a privilege and a calling, and that it combines both art and science. And yet, in these non-life threatening health issues, acting as a provider of health care, state court judges independently take on the serious role of playing doctor, prescribe without medical license or knowledge VA medical compensation issues. A practice forbidden, providing penalties by law, and border on medical negligence in maintaining it’s own state health practice standards.
Despite a ruling by the United State court of appeals, in VETERANS FOR COMMON SENSE, VETERANS UNITED FOR TRUTH, INC., v. ERIC K. SHINSEKI, December 13, 2011, in refusing to exceed their jurisdiction over service-related disability compensation, state courts judges, yes… purposely overlook and violate this canon of law.
A State’s navigable streams are regulated as commerce throughout it’s travel, to protect against pollution, and it’s effect to protect it’s health all along it’s travels. This is no different from a veterans VA disability compensation benefit, navigating it’s way across many states, and just as well recognized as commerce, regulated. State courts failing the constitutional standards for establishing a state priority over the Commerce Clause, Article 1, Section 8, have shown no State interest to protect the health and well being, or the property interests of a disabled veteran.
Realizing laws protecting VA disability compensation as exempt, state courts, therefore are unable, in any legal standing, to secure garnishment of veteran’s VA disability compensation. The court not satisfied, in a final move, will now consider, from any source, an equitable calculation of veteran’s resources, to include…. the very same disability compensation the court has acknowledged as exempt in determining court awarded support. Suggesting the use of a veteran’s disability compensation, or go to jail! As has happened. The mere mention, innuendo, or thought of VA disability compensation to satisfy indemnity obligations as a equitable consideration in any form, thought or calculation of VA disability compensation, suggests interference, in matters identified as exempt, are beyond the State courts jurisdiction, under “separation of powers” doctrine. The court has the responsibility to recognize “property” as a “due process’ right and the states obligation to uphold the State Constitution’s “separation of powers” doctrine.
A state court judge not wanting to violate federal law realizing the exempt status of VA disability compensation, so orders the veteran, that support payments… shall be made from his or her VA disability compensation. In many instances the only monies available, asking (coerced) the veteran to break federal law 38 USC 5301, one that the court will refused to violate. “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 shall not be liable to ..levy or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.”
To illustrate, an ultimatum of disabled veterans’ experiences. As California Vietnam disabled veteran explained to me, “So the court is playing the ‘contempt of court’ game…I am unfortunately too afraid to go to jail for any reason so I resentfully and reluctantly pay the balance.” (Piner v Piner Calif.)
The Supremacy Clause of the Constitution… “The laws of the United States… shall be the supreme law of the land…anything in the constitutions or laws of any State to the contrary notwithstanding. This means of course, that any federal law—even a regulation of a federal agency—trumps any conflicting state law.”
The federal agency’s Veterans Administration Secretary knowing of these concerns remains oblivious to what is their responsibility of care to veterans is, and remains unconcerned as to exactly what their administrative duty is to protect VA disability benefits from those who freely encroach on those constitutional responsibilities that clearly belong to the Veterans Administration. I find no duty of the Secretary to surrender control of VA disability benefits so freely to the States. The issue of disabled veterans right to property is about the law, and not setting a precedent.
As a veterans advocate, and a Korean era veteran, I am neither disabled or in any divorce action. The reality of law from the disabled veteran’s view.
William Heino Sr.
Hi, Please put me on your mailing list, Kind Regards, Mark
Will do, Mark. Thank you!
I retired from the Marine Corps back in 1991 and have been living in Wyoming since that time. I am presently harboring thoughts of moving to a warmer climate like Hawaii. I’d certainly like to hook up with those of you who can provide me with tidbits of information that i would need to know about Vets living in Hawaii, i.e. Where are the better places to consider, VA facilities, property values, community values, etc. I am 62, enjoy the outdoors, love all facets of life. Just looking to consider Hawaii as my final move. Can anyone assist me with this sort of help? thanks…
Would you put me on your mailing list. I retired from the Navy.
You’ve been added. Thanks!
The reason disabled veterans are denied benefits, Oregon.
In order to protect veterans benefits, Oregon Attorney General has initiated a law suit against the Veterans Administration for a violation of federal law. Oregon Attorney General Ellen Rosenblum, sues the Department of Veterans Affairs for failing to follow a federal law under the Randolph-Sheppard Act of 1936, breaking a law which is to provide economic opportunities and job stimulation for people who are blind, according to the lawsuit filed Friday 1/5/2014 in Medford’s U.S. District Court.(Bryan Denson, Oregonianlive.com)
Oregon now protecting VA veterans benefits?
Oregon’s statutes describe both state and federal law protections of a disabled veterans compensation, i.e. 38 USC 5301. The reality is, an Oregon disabled veteran standing before a state judge these enacted legislative protections do not apply. Ask disabled veteran Peter James Barclay.
Oregon’s statutes clearly offer many references, in compliance, observance, and their adherence to both state and federal law and protecting veterans benefits.
18.600 Definitions. As used in ORS 18.600 to 18.850:
(6) “Federal benefit payment” means:
(b) “A benefit payment from the United States Department of Veterans Affairs that is protected under 38 U.S.C. 5301(a);”
34 § 411.837¹ Compliance with state and federal laws required
10 § 409.040¹ Federal law supersedes state law.
26 § 279A.030¹ Federal law prevails in case of conflict
ORS 18.345 Exempt personal property generally. (1) “All property, including franchises, or rights or interest therein, of the judgment debtor, shall be liable to an execution, except as provided in this section and in other statutes granting exemptions from execution. The following property, or rights or interest therein of the judgment debtor, except as provided in ORS 18.305, shall be exempt from execution:
(m) Veterans’ benefits and loans.”
(ORS 18.305 [Property not exempt from execution for purchase price])
ORS 18.845 Notice of exemptions form; instructions for challenge to garnishment.
“State and federal law specify that certain property may not be taken.
(21) Veterans’ benefits and loans.
(22) Medical assistance benefits.”
YOU MAY USE THE CHALLENGE TO GARNISHMENT FORM ONLY FOR THE FOLLOWING PURPOSES:
(1) “To claim such exemptions from garnishment as are permitted by law.”
Oregon’s reference’s to state federal law statutes indicates compliance. Benefits protected under 38 USC 5301. Nonassignability and exempt status of benefits, is the Oregon state and federal protection of the disabled veteran’s VA disability compensation. “(a)(1) shall not be assignable… shall be exempt from taxation, .. creditors, ..attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.”
“The power to regulate, is the power to govern.” The United States Supreme Court has stated that, a state divorce judgment, “Like other law governing the economic aspects of domestic relations, must give way to clearly conflicting federal enactments.” Ridgway v. Ridgway, 454 U.S. 46, 55 (1981).
Yet, Oregon courts, rather than comply with State or federal law (38 USC 5301) in protecting veterans benefits, offer in response, Landis v Landis, Oregon 6/1/2005, “.. benefits are divisible … because there is no conflict.” The United States Supreme Court concurs. Disabled veterans need not apply!
After costly legal expense, it wasn’t disabled Air Force veteran Oregon resident Peter James Barclay, or the thousands of other disabled veterans that received any benefit of these state and federal laws, involved in protecting VA disability compensation from State court ordered spousal support, and then, adding insult, denied his Constitution rights by Oregon’s State Supreme Court. And further, the unforgivable refusal of the United States Supreme Court to consider his May 2, 2012 petition, requesting, “The Court Should Grant Review to Determine Whether State Courts Are Erring as a Matter of Law By Preempting Federal Law with State Law Federal Law, by Considering VA Disability Pay Divisible Under State Community or Equitable Distribution Laws.” (Oct 1 2012) Petition DENIED.
“It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law.” See Atkins v. Parker, 472 U.S. 115, 128 (1985); Mathews v. Eldridge, 424 U.S. 319, 332 (1976)
Because of the Supreme Court of the United States and Oregon’s indefensible and unconscionable treatment of disabled veterans, reflects the unforgivable uncaring of most States, and it’s legislators towards their disabled veterans. Something that is happening now, in your state! Happening… because of Oregon’s rulings, by State courts nationwide reliance on forum shopping and the false notion of ‘stare decisis’ “to stand by things decided.” I suspect these references in Oregon’s state statutes, protecting state and federal veterans disability benefits, will, under pressure by Oregon’s legislators legal community, amend the law, (as they did it in Texas).
As a Korean era veteran, I am neither disabled, or in any divorce action.. The reality of law from a disabled veteran’s view.
VA disability compensation consequences.
The mention of VA disability compensation in a Massachusetts courtroom, led to dire consequences for two disabled veterans.
Hawaii is no different in the court room treatment of it’s disabled veterans.
Where is it written in States rights, is the Veterans Administration, the VA authority, when a state judge can “hold oneself out as qualified,” and arbitrarily overrule the VA, the VA medical doctors and other medical professionals’ that determine a veterans’ medical rating and disability compensation? Massachusetts disabled veteran Matt Schmoker’s future now without the compensation that was by law assured? Tax payer monies mandated by Congress purposely, as veterans service compensation for injuries received, life altering as they are, now being diverted purposely in state court alimony/support awards to healthy third parties in many cases, in a determined and engaging violation of the law. To allow what has been happening, was this the intent of Congress? That state court judges substitute their judgment,… for the judgment of VA doctors and medical professionals? I don’t think so!
Veterans Affairs blind deference to “states rights“ and a VA administration “high jacked” resulting in “Clear and substantial” major damage to federal interests. State court judgments that seriously impact disabled veterans’ rated compensation and complicate Veterans Administration goals, and responsibilities. Upsetting, by overruling VA military medical compensation decisions, which involve many hours of work that VA medical professionals have invested in the medical care, control, follow-up, and rehabilitation of disabled veterans. All this happens with VA complicity, when a state court, arbitrarily is allowed to take away a veterans VA disability compensation in violation of….. 38 USC 5301. Nonassignability and exempt status of benefits.
Vietnam era disabled veteran Matthew Schmoker joined the Marines 1/28/74. After 5 years of military service he was discharged 3/19/79 with a disability rating of 30%. Matt waived military retired disability pay in order to receive VA disability compensation. No survivor benefits elected. Matt Schmoker while serving in the Marine Corps was unmarried.
1980 Matt Schmoker married Lorraine and then were divorced in 1983 after 3 years. Interestingly, VA disability not mentioned in court papers. Matt Schmoker remarried Lorraine March 1988. Divorced Feb.2010.
In 2002 Schmoker’s disability rating was increased to 100%. He waived military retired pay in order to receive VA disability compensation.
Matthew Schmoker argues that the Commonwealth of Masscuhusetts, Probate and Family Court Suffolk Division erred in application of law in ordering alimony payments based on protected federal VA disability benefits. The military classified Matt Schmoker as being medically retired from the military in1979. Permanently disabled medically retired Dec. 1983..
Military medical retirement is intended to compensate for a military career cut short because of disability. VA disability compensation is intended to compensate for disabilities that interfere with civilian employment, and it is separate from medical military retirement pay. By law in order to get VA disability compensation you must waive entitlement to all permanent disability retired pay. Matt Schmoker’s status is non-pay military retired, VA 100% disability pay compensation. The Massachusetts court violated both State and Federal law in awarding court ordered alimony garnishment from his VA disability compensation.
The Massachusetts Court Docket 3/31/09 #08D2013, Schmoker v Schmoker, references in ruling, the Defendants Marine Corps Disability Pension [incorrectly designated authority] and 10 USCA § 1408, Computation of Retired pay (a)(2)(b), Effective Service of Process. Citing, “The arrearage be assigned from the Defendants Marine Corps Disability pension.” But rather than clarify and explain Chapter 71 Section 1408 Computation of Retired pay, “Payment of retired or retainer pay in compliance with court orders,” the court instead wanted to refer to (b) Effective Service of Process, as the reason for the court’s ruling.
However, what the court purposely referenced but failed to communicate or consider is the fundamental rule of law 1048 as it applies to disabled veteran Matt Schmoker. Computation of Retired pay,1408 (a)(2)( C ) explains the purpose of 1408. “…in the case of division of property, specifically provides for the payment of an amount, expressed in dollars or as a percentage of disposable retired pay, from the disposable retired pay of a member to the spouse or former spouse of that member.”
MANSELL, v. MANSELL. No. 87-201.Decided May 30, 1989.
“Congress enacted the Uniformed Services Former Spouses’ Protection Act (Act), 10 U.S.C. § 1408 (1982 ed. and Supp. V), which authorizes state courts to treat as community property “disposable retired or retainer pay,” § 1408(c)(1), specifically defining such pay to exclude, inter alia, any military retirement pay waived in order for the retiree to receive veterans’ disability benefits, § 1408(a)(4)(B). “
“Held: The Act does not grant state courts the power to treat as property divisible upon divorce military retirement pay waived by the retiree in order to receive veterans’ disability benefits. In light of § 1408(a)(4)(B)’s limiting language as to such waived pay, the Act’s plain and precise language establishes that § 1408(c)(1) grants state courts the authority to treat only disposable retired pay, not total retired pay, as community property.”
Matt Schmoker’s federal disability payments is clarified by Mansell v Mansell, “§ 1408(c)(1), specifically defining such pay..” and 10 USC 1408 itself, payments are not classified or considered as disposable pay. He is designated, not as retired or retainer pay status, but is classified solely VA disability compensation rated. And for these many reasons, Matt Schmoker having no disposable pay issue, therefore does not have or owe any fiduciary responsibility. Clearly, 10 USC 1048 does not apply to Matt Schmoker. Never-the-less Massachusetts court Judge Elaine Moriarty found it necessary to violate the law, her judges judicial cannons, and the personal property rights of disabled veteran Matthew Schmoker by awarding his earned VA disability compensation as alimony.
2014 Massachusetts General Laws, TITLE III DOMESTIC RELATIONS CHAPTER 209 HUSBAND AND WIFE. . “The real and personal property of any person shall, upon marriage, remain the separate property of such person, …” The exception being, and contrary to this Massachusetts law, the personal property illegal ruling in Schmoker V. Schmoker, where the Court had disregarded Chapter 209 law, and ruled that VA military disability benefits, as a protected personal property right of this disabled veteran earned before marriage, as meaningless.
In Schmoker v Schmoker, it’s curious, the court’s reliance then refers to citing only one, Massachusetts Supreme Judicial Court decision. Krapf v Krapf 439 Mass. 97. (4/2/03) “..under the parties’ separation agreement, the judge did not err in ordering the Husband to pay plaintiff wife the equivalent of fifty percent of the military retirement pension that the Husband would have received if he had not waived his entitlement to the same by accepting veteran’s disability benefits…” Because of Matt Schmoker’s military disabled benefit status, and lacking any marital separation agreement, any court order to calculate, or consider military disability compensation as to any equivalency is therefore not applicable.
The Krapf ruling reference in Schmoker v. Schmoker is understood as a condition set by the court, that resulted in awarding plaintiff wife monetary relief if not for veteran Krapf accepting veteran’s disability benefits, as allowed by law. This ruling therefore was understood as a condition, that Matthew Schmoker by accepting VA disability compensation over-reached and this resulted in an unfair and impermissible ruling for Matt Schmoker, notwithstanding Federal or Massachusetts law.
The Krapf court suggesting the avoidance of an impermissible contravention of law ruled, “…the judgment in this case does not divide the defendant’s VA disability benefits in contravention of the Mansell decision; the judgment merely enforced the defendant’s contractual obligation to his former wife, which he may satisfy from any of his resources.” The court perhaps realizing “Like other law governing the economic aspects of domestic relations, must give way to clearly conflicting federal enactments.” (Ridgway v. Ridgway, 454 U.S. 46, 55 (1981)), recognition of Federal law 38 USC 5301. And this is Matt Schmoker’s argument. Why then had Schmoker not been dealt that same court ruling in Krapf, “which he may satisfy from other resources“? The why is, Matt Schmoker had no other resources.
Massachusetts Title III Chapter 208 Section 34. “Upon divorce…In addition to or in lieu of a judgment to pay alimony, the court may assign…military retirement benefits if qualified under and to the extent provided by federal law…” Federal law, as previously provided and noted, has qualified military retirement benefits under various conditions as exempt, 10 USC 1408, 38 USC Sec. 5301.
Military retirements is clarified and found qualified under …. Massachusetts General Laws Section 1. “Disabled veteran”, any veteran, as defined in this section, … for which he has been retired from any branch of the armed forces and is receiving or is entitled to receive a retirement allowance, or (2) has a continuing service-incurred disability based on wartime service for which he is receiving or is entitled to receive a statutory award from the veterans administration. “
A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts.
XI.—“Every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.”
Although alimony has ended for many in Massachusetts, due to a sweeping overhaul of alimony law, The Commonwealth of Massachusetts, AN ACT REFORMING ALIMONY IN THE COMMONWEALTH.
(2011) Section 49. (a) “General term alimony shall terminate upon ….” However, and despite both Federal and Massachusetts law, state court judges, and legislators, as shown, do not believe Matt Schmoker or other disabled veterans, are not deserving of the law or same consideration afforded to it‘s citizens. As a result Massachusetts disabled veterans‘ will continue to be abused and victimized by activist judges. How has it come to be, that alimony reform legislation having such broad appeal, proposed and passed into law without one thought or consideration of the disabled veteran wanting, under similar circumstances according to law?
How can there be any meaningful reform at the VA when veterans disability compensation payments, enacted by Federal statute and given control over to state divorce court judges to rule according to the judges bias’… likes or dislikes of the disabled veteran or their issues. VA compensation purposely rated for maintaining the health, well being and rehabilitation of disabled veterans is given away, by overlooking, disregarding, violating the law, perhaps punish, to accomplish the task of awarding alimony.
38 USC 303. “….The Secretary is responsible for the proper execution and administration of all laws administered by the Department and for the control, direction, and management of the Department.”
Will there be any justice in our court system to protect property rights of disabled veterans? State court judges will continue to push the envelope, and as illustrated, they get away with it. What had Matthew Schmoker done to deserve the injustice he received in a Massachusetts court room? Where in all this is the Veterans Administration? Veterans did their duty. They stand alone. Your duty, … help save veteran’s benefits.
As a veterans advocate, a Korean era veteran, I am neither disabled or in any divorce action. The reality of law from the disabled veteran’s view,… it’s criminal.
I would like to be informed of veterans events on Maui. My late husband was a USAF JAG Officer and is buried at Makawao Veterans Cemetery.
Virginia Shaw Scuro
A flawed disabled veterans federal agency directive
For decades, a flawed federal agency directive have cost disabled veterans their benefits.
September 25, 1998.
TO STATE AGENCIES ADMINISTRERING CHILD SUPPORT ENFORCEMENT PLANS UNDER TITLE IV-D OF THE SOCIAL SECURITY ACT AND OTHER INTERESTED INDIVIDUALS.
SUBJECT: Obtaining financial support for children from benefits paid by the Department of Veterans Affairs.
BACKGROUND: Section 459 [42 USC 659] “Consent By The United States to income withholding, garnishment.. for enforcement of child support.. ], of the Social Security Act, as amended provides for the garnishment of certain Federal payments for the enforcement of child support and alimony obligations…”
Directive enforcement based on Example #2. Department of veterans Affairs… Pursuant to 38 USC 5307 [Apportionment], and 38 CFR 3.450(a)(1)(ii), “provide that, if the veteran is not residing with his or her spouse, or if the veteran’s children are not residing with the veteran and the veteran is not reasonably discharging his or her responsibility for the spouse’s or children’s support.”
The Department of Health and Human Services Child Support Enforcement agency reasoned, 38 USC 5307 “apportionment” as an enforcement issue under their directive to State agencies. SUBJECT: “Obtaining financial support for children from benefits paid by the Department of Veterans Affairs.”
38 USC 5307 is a Dept. of Veterans Affairs internal administrative law. Apportionment is “as may be prescribed by the Secretary,” having absolutely nothing what-so-ever of being in a court room, or an issue of garnishment. Administrative law adjudications are not part of enforcement. Under the “apportionment” statute “as maybe prescribed by the Secretary” there is no enforcement, only administration.
As anybody taking the time reading the statute, 38 USC Sec. 5307 Apportionment of Benefits, it concerns a disabled veteran that is institutionalized, hospitalized, incompetent or unable for what-ever reason to make decisions personally. The inability to function, restricted in discharging his or her normal personal business, household, daily responsibilities. Therefore, any pension, compensation, or dependency and indemnity compensation may be apportioned, not by any court, but as “prescribed by the Secretary.”
Since 1998, and most likely, beyond, lawyers, activist state court judges, and plaintiffs refer to this United States Department of Health and Human Services Office of Child Support Enforcement directive for guidance and preparation. A directive based on a purposely false, sloppy, inaccurate information (apportionment), deliberately to mislead disabled veterans and their attorneys, and setting the stage to partnership with every overbearing activist state court judge in the country to administer their justice.
Disabled veteran, Charlie Wayne Rose (1987) was done in by the United States Supreme Court, State of Tennessee, Dept. of Health and Human Services Office of Child Support agency, and Congressional Act 38 CFR 3.450 (a)(1)(ii) “The regulations broadly authorize apportionment if “the veteran is not reasonably discharging his or her responsibility for the . . . children’s support.” Rose, a disabled veteran, triple amputee, blind in one eye, requiring constant care, was jailed, lost his appeal in 38 USC 5301 protections of his VA disability compensation claim. It was this agency, Office of Child Support Enforcement, that provided highly inaccurate, false, and misleading information in a very questionable and inaccurate directive. “Apportionment” was used in the U.S. Supreme Court argument Rose v Rose 37 times. And it worked!
If this directive wasn’t a sloppy careless preparation of regulation law, it was then intentional, in order to mislead. Lost forever is veterans rights in protection of VA disability benefits, to fair and equal justice, by a regulation rewritten to falsely accuse and irresponsibly suggesting, “the veteran is not reasonably discharging his or her responsibility for the spouse’s or children’s support .”
Although “apportionment” has only one special meaning through the Congressional legislative intent in United States Code (38 USC 5307), however, the court in redefining it‘s special specific purpose, in order to force judgment, lacking was the compulsory constitutionally required legislative intent by Congress! Due process requires judicial review.Invoking 38 USC 7292, review by United States Court of Appeals.
Regretfully, it took this issue of a groundless, manufactured directive to reveal another means of the further undoing of veterans benefits by clever creative regulatory writing. This is not about child support, as there are other legal remedies available. It’s about the illegal expropriation of VA benefits and protections of the 14th Amendment.
As a veteran of the Korean conflict era, I am neither disabled nor divorced.
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