In another pro bono veteran’s disability case, we recently filed a brief in the Michigan Court of Appeals seeking a decision on the applicability of federal law to a specific set of disabled veterans. Carpenter v. Carpenter Brief on Appeal
Although federal law in some cases allows state courts to use veterans’ disability pay to pay child support and / or spousal support orders, this does not apply to those (majority of) disabled veterans who incurred severe and debilitating combat-related disabilities during active duty service well before they attained the years in service to be considered eligible for pensions (retirement). The latter “funds” are considered by states to be “remuneration for prior employment” and, thus a “divisible” asset available for child support and spousal support payments upon divorce. However, due to the up-tempo, high-risk combat deployments a majority of veterans have experienced during their service in the last 30 years, and, ironically, due to the positive progress and advances in battlefield medicine, transportation, and both forward- and rear-area medical treatment, servicemembers that are severely wounded in combat are surviving now more than ever before in history. Yet, this progress comes with a price. Many who signed up to serve their country are unable to continue on with their military careers. Many of these veterans also suffer secondary and tertiary physical, mental and emotional injuries, as well. This is the majority group of disabled veterans. To demonstrate the numbers, I include, in this brief, an extensive statistical and adjusted data analysis I personally performed when authoring the Veterans of Foreign Wars amicus curiae brief in the Supreme Court of the United States in the case of Howell v. Howell (which addressed a similar, but distinct, issue of the applicability of federal law to veterans’ disability pay in “property” settlement disputes upon divorce). Using the unparalleled resources at the Cambridge University Law School’s Squire Law Library in the UK, I demonstrate that the vast majority of severely disabled veterans (which are rated at 70-percent disabled or higher) are those that were injured and/or wounded prior to their attainment of retirement time-in-service. They cannot and will not ever receive retirement pay. As federal law only allows disability pay that is received “in lieu of retirement pay” to be counted towards satisfaction of state-court child support and/or spousal support orders, and these particular veterans are not within this category (and never will be), federal law affirmatively and jurisdictionally protects their benefits.
Yet, state courts of primary instance, as is often the case in this complex area of the law and the confusing confluence of state and federal laws that apply, often gloss over this distinction and rule that all veterans’ disability pay is subject to legal process, garnishment, and assignment and a failure of the veteran (who may only have this as a sole source of income) to pay subjects him or her to contempt and imprisonment, including, as a consequence, the suspension and revocation of many of his or her constitutional privileges. The financial predicament in which these veterans find themselves makes it virtually impossible to afford attorneys to defend them in these proceedings, much less recover their personal financial freedom and liberty. This, in addition to the nearly impenetrable bureaucracy required to receive Veterans Administration (VA) provided or approved medical and mental health care, leads to the inexorable and often tragic stories we witness on a daily basis of veterans succumbing to addiction and, sadly, in all too many cases, suicide.
The truth is that because the state-court system allows these lower state trial courts to continue to make these rulings, many veterans will never be able to assert their constitutional entitlement to their benefits in a proper forum, i.e., in the state Courts of Appeals and state Supreme Courts, and ultimately, in the United States Supreme Court, which has ultimate jurisdiction and authority to rule upon these issues. Thousands and thousands of veterans will be subjected to these prejudicial rulings and they will languish in utter financial despair unless and until a higher court recognizes this situation and follows the rule of law to correct it. Years and years will pass before judicial precedent is established and what will that do for all those veterans who are currently and will continue to suffer under these errant state-court rulings?
Due to my extensive study of the issues present in the Howell v. Howell matter, and in my other case currently pending in the Michigan Supreme Court, see the Foster v. Foster Grant Order, I discovered that for nearly forty years (from the 1950’s through several admonishing opinions by the United States Supreme Court) state courts were not following the law in “property” divisions in divorce proceedings (see Wissner v. Wissner, McCarty v. McCarty, Ridgway v. Ridgway, the USFSPA 10 U.S.C. 1408, Mansell v. Mansell, Rose v. Rose, and, finally, Howell v. Howell). State courts simply ignored and continue to ignore federal law and create ways to get around it in this area.
Regarding the latter point, I can also attest that this state law tergiversation is still occurring today, post-Howell, and again, in state trial courts throughout the country that are trying to find ways around the absolute preemption of federal law over state law in this area. I recently appeared pro hac vice in a Tennessee trial court for the sole purpose of convincing the trial court judge to understand exactly what is going on and in an effort to stop, yet again, state court defiance in this particular area!
It is unbelievable to see this in light of how clear the federal law is spelled out in this particular subject. Indeed, Howell followed all of my arguments in the amicus curiae brief I submitted and in a truly rare unanimous opinion, which was only four or five pages long, firmly ruled that this federal law had always preempted state law in this particular area!
Working with attorneys who are also veterans, former Judge Advocate General (JAG) colleagues of mine, and veterans’ organizations throughout the country, I have become involved in several of these cases on a pro-bono or reduced-fee basis. All in addition to my regular appellate and insurance coverage practice.