DoD Ruling Favors Former Spouses Over Veterans

By Tom Schultz, Colonel, USAF/ANGUS, (Ret.)

E-mail:  Soldadodeverdad@hotmail.com

If you're a retired veteran affected by the Uniformed Services Former Spouse Protection Act (USFSPA) you'll find this of interest.

If you're a veteran who served in the Reserves or National Guard but later retired (or plans to retire) with 20 years of active service and is affected by USFSPA, you'll find this of vital interest.

Thanks to a ruling by the Department of Defense Office of Hearings and Appeals (DOHA), the Defense Finance and Accounting Service (DFAS) now has the right to collect a portion of retirement income from National Guard and Reserve veterans who qualify for retirement with 20 years of active service even if the former spouse was not married to the member for 10 of the years needed to obtain the entitlement.

To the casual observer -- even those familiar with USFSPA -- news of this judgment may cause some head scratching.   After all, most lawyers will tell you that the controversial "10-10 rule" calls only for the former spouse to be married to the military member for 10 years during which the member performed 10 years of creditable service. 

This however, is not the whole story.  Since passage of USFSPA 25 years ago there has always been a third element to the 10-10 rule that's gone largely unnoticed.   The language of the law does not stop with the words "creditable service" but continues saying, "creditable service used in determining the member's eligibility for retired pay."

If a former spouse is married to a active duty member for 10 years of a 20 year-career, this phrase has no effect on the outcome.  Likewise, if same the career was strictly one of reserve or National Guard service, the ex remains eligible to for DFAS to collect a portion of retirement income from the member at age 60. 

Even if the decade of marriage overlaps a combination of active and reserve service ending in eligibility for reserve retirement, the ending won't change as all active service applies towards eligibility to collect retired pay upon a member reaching his or her 60th birthday.

In the fourth instance however, when combined reserve and active service qualifies a member for an active service retirement with immediate benefits, the hard truth is that only 20 years of total active federal military service (aka TAFMS) is used to determine eligibility for retired pay.  Inactive service may be counted later to help compute the percentage of retired pay, but not the member's eligibility to receive it.

The DFAS interpretation of USFSPA ignores the statute language, saying that the law requires only "that the parties be married for a period of ten years during which the member performs ten years of creditable service."  DFAS adds that the statute makes no "legal distinction between the type of service performed (active duty or reserve) and/or the length of time during which the parties were married to one another."

This narrow reading of USFSPA was upheld by DOHA, despite hundreds of pages of federal law and administrative decisions the contrary.  DOHA even referred to legislative history to show that it was Congress' intent that Guard and Reserve veterans should be treated in this manner. This, despite the fact that Congress also said that a former spouse "should have no greater interest in the retired or retainer pay of a member than the member has." 

In the end however, DOHA noted that DFAS is the component responsible for implementing the statute.  As such, its explanations were "to be sustained" by DOHA adjudicators. 

This ruling is already affecting untold thousands of retired Guard and Reserve veterans whose marriages did not overlap by 10 years the 20 they needed to become eligible for active service retirement.  It will also potentially impact more then 76,000 fulltime members currently serving in Active Guard and Reserve status, not to mention the nearly 630,000 Guard and Reserve veterans who -- since the events of 9/11 -- have been called up for repeated tours of active service (some for up to two years) for operations such as Iraqi and Enduring Freedom.  

The effects on Guard and Reserve soldiers, sailors, airmen and marines however, reach back even further.  Prior to September 11, 2001, average annual use for traditional Guard and Reserve personnel in the 1980s was roughly a million duty days.  By the end of the 1990s, that number had increased to about 13 million duty days per year.  DoD officials and Congress have long recognized that America's reserve forces are operational on a daily basis -- no longer the strategic reserves envisioned back in the days of the Cold War.  

The ruling will be challenged in federal court -- by me -- as I am the retiree who has alone taken this issue through the administrative process. I would like to know however; just how many readers are already affected -- or expect they soon will be -- by this ruling. 

I believe the numbers are greater then anyone suspects.   And with the legal costs that will inevitably mount, I may need help.  If you're interested, my e-mail address is listed above.

For now however, what is needed is information -- and action.  If you don't already plan to -- write to your elected representatives and ask them if this was what Congress truly intended.  Write your military retiree, Reserve and National Guard officer and enlisted associations to ask what they are doing about it.  I'm sure they would like to know just how many of us there are out there chafing under this ruling.

In closing, when appealing to DOHA for reconsideration of their decision, I submitted a two-inch thick binder full of documentation rebutting their choice to support DFAS.  On the cover, were words from Lewis Caroll's work, "Through the Looking Glass" printed as a watermark on the page:

`I don't know what you mean by "glory,"' Alice said.

Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'

`But "glory" doesn't mean "a nice knock-down argument,"' Alice objected.

`When I use a word,' Humpty Dumpty said in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'

This ruling is still another example of Humpty Dumpty government; where agencies responsible for implementing our nation's laws are allowed to twist them in ways that defy what should be a common understanding.   Those responsible for defining the laws when they are challenged administratively are instead deferring.  And deference is growing into indifference. 

Retirement pay is more than an entitlement; it's a legal right belonging solely to the member who earns it.  As tired as I know all of us have become with this law, we must continue -- as veterans and patriots always have -- to push back at the system, or be crushed under it.  USFSPA has always been a contentious law but now, what Congress intended to be protection act has become a protection racket. 

Please act…and act now.

(Note: Read the ruling at: http://www.dod.mil/dodgc/doha/claims/military/08020701.pdf)