October 4, 2009
To: Congressman Bob Filner, Chairman, House Committee on Veterans Affairs
Subject: Request for Public Hearing
Topic: Title 38 USC §5301 Nonassignability and exempt status of benefits
Mr. Chairman,
I hope this letter finds you in good health and high spirits, Congressman. It has been several months since we spoke and I hope all is well with you and your family.
Please consider this letter as a formal request for a public hearing before your Committee on Veterans’ Affairs and members of Congress concerning Title 38 USC §5301.
The reason for this hearing is of great concern to the men and women who serve in uniform in our military services. These military personnel depend on their government leaders to improve and protect the benefits and entitlements they earn. Title 38 USC §5301 situation affects every man and/or woman disabled in the line of duty and can only be described as urgent and critical.
Congressman Filner, the last time we spoke you encouraged the OFFE Team to pursue the USC §5301 issue and develop a plan to address the problem. We have done exactly what you suggested. You also told us that once we had our argument refined and our facts organized that you would help us bring the issue before Congress. I am pleased to report that we are now ready to present the findings of our 6-year study to the Committee on Veterans Affairs.
Since last year Operation Firing For Effect has been in contact with a number of key individuals to include; Mr. Matt Flavin, President Obama’s Veterans’ Affairs Officer, and Colonel Tony Buckles in your DC office, Iowa Congressman Thomas Latham, New York Congressman Eric Massa, Florida Congressman Jeff Miller, and Hawaii Senator Daniel Akaka concerning this issue. And it would be safe to say a very large number of Congressional Staffers know something about the Title 38 USC §5301 issue after the OFFE Team visited the Hill several months ago. The general consensus among everyone we have spoken with is ‘Congress’ is the only entity capable of fixing the USC §5301 problem, as it was Congress who authored Title 38 USC §5301 in the first place.
Bob, we need a date and time locked-in to hear personal testimony before the Committee on Veterans Affairs from no less than 12 honorably discharged disabled veterans, male and female. Several of the veterans who will be testifying are retired with 20 or more years of service and receive retirement pay in addition to disability compensation. The single common factor in all 60 cases in our study is; veteran’s disability compensation was calculated into their divorce settlement as a ‘divisible asset’. The civil courts see no difference between the two, and treat ‘VA disability benefits’ exactly the same as ‘DOD retirement pay’, or as ‘income’, or as ‘property’. State courts have learned how to manipulate this ‘gray area’ of Title 38 USC §5301 Federal Protection, and severely disabled veterans are being court ordered to ‘give’ a significant portion of their earned disability compensation to an able body non-military ex-spouse, or go to jail. In many of these cases the disabled veteran was wounded and disabled in a combat zone and is the recipient of the Purple Heart Medal. Bob, we are counting on you to take the lead in Congress towards making this hearing a reality. We are counting on Congress to help protect veteran’s disability compensation from third party awards under any circumstances whatsoever. When a combat disabled veteran falls on hard times, losing their job, their house, facing bankruptcy, experiencing failing health, and going through a divorce, the feelings of hopelessness and helplessness can be overwhelming. When facing such hardships in life the one thing a disabled veteran should be able to count on is their military benefits, which they earned with their blood, sweat, and tears. It is at these low points in life when these benefits are needed the most, and when they can help the greatest. To allow anyone to arbitrarily or ambiguously take these benefits from them is cruel and unjust. The OFFE study contains documentation which clearly reveal the intent of Congress in the late 1800s was total protection of such Federal service-connected disability benefits, which later developed into USC §3101 /§5301.
I have enclosed a Petition and brief background on the OFFE study for your review.
Awaiting your reply,
Gene D. Simes
VFVC INC./OFFE National Chairman
Petition for Public Hearing
Gene Simes, OFFE National Chairman
INTRODUCTION:
This petition gives notice that Veterans For Veteran Connection Inc. and Operation Firing For Effect, a non-profit service organization petitions the Committee on Veterans Affairs for a public hearing on Title 38 USC §5301 Nonassignability and exempt status of benefits.
The initial intent of the United States Eighty-Fifth Congress in its infamous wisdom was the protection of veterans disability compensation to which “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”. This was the only presumption of the law.
Through the years accommodating for the needs of society diluted the intent of Congress. These changes are reflected in the timeline of the law that without intent of reasonable doubt gives evidence to a shift in its applicability. While USC §3101 clearly demonstrates the original intent of Congress, these other changes were intended to provide for the protection of spouses during a retiree separation from military service, particularly after a divorce to which such retirement payment was considered shared property.
In practicality, the original intent of the Twentieth Congress Session I Chapter 55 no longer exist, neither for retired or disabled veterans, nor its applicability to disabled veterans who did not retire from any branch of service. In addition, the amendments to USC §3101/§5301 failed to differentiate two groups of veterans who share very little other than receiving military retirement, not disability. Each shares one common denominator, that of compensation earned during military service, however a disabled person does not waive any part of the retirement that he has not earned. Congress, while their intentions were altruistic, failed to consider that all disabled veterans are not retired from military service, but would be defined within Title 10, to which is the basis for Rose v Rose decision.
INTENT OF CONGRESS
There is no reasonable evidence to support that Congress intended disability compensation to be for the veteran and dependents, while the language may be interpreted through its benefits to spouses and children. The Department of Veterans Affairs allots a separate payment amount to the spouse and dependents, if married. Such payments are enforced until the veteran divorces to which the spouse’s additional payment is terminated while dependent children continue at the same rate as while married.
If the Supreme Courts felt that disability compensation was intended for the veterans and dependents than maybe the only obligated amount needs to be that amount which the Department of Veterans Affairs consider equitable for dependent care. Any amount beyond this amount would constitute discrimination.
CONSTITIUTIONAL ISSUE
Disability programs like SSI and SSDI do not allow garnishment of child support payment or any payment from their recipients. The troubling issue with these two programs is why a veteran’s disability is treated differently? The Fourteenth Amendment guarantees to Americans ‘the equal protection of the laws’. State and federal lawmakers are prohibited from arbitrarily discriminating against particular groups such as blacks, women, and the disabled. In U.S. law, the constitutional guarantee that no person or group will be denied such protection under the law as is enjoyed by similar persons or groups — i.e., persons similarly situated must be treated similarly.
SUMMARY
At what point did a disabled veterans become less disabled? The laws intended to protect veterans have changed to suit the political agendas of states and have stripped any thread of decency on veterans’ quality of life. In the original Title 38 USC §3101, the 85th Congress asserted its protection of disability compensation against Nonassignability and exempt status of benefits.
Also, there is no basis to assume that a disabled veteran is remunerated for his compensation, moreover considering such payment to be income, if the veteran never retired from military service. A key point to remember is that Title 26 IRS Tax Code does not consider disability compensation to be any form of income, consequently not to be considered as community or shared property.
We ask for your indulgence in presenting evidence to support disabled veterans struggles and hardships. We are prepared to submit case study testimonies of numerous disabled veterans that support their concerns. They realize that the changes enacted by Congress have diminished the protection clause intended by Congress on Title 38 USC §5301 Nonassignability and exempt status of benefits and feel strongly that changes are needed to remedy a serious problem in current interpretations. In conflict with §3101/§5301 is Title 42 Chapter 7 Subchapter D §659, which support our findings. We ask that you consider that this law was diluted to a point that it only represents a sense of false hope for disabled veterans.
There is no legislation that addresses the protection of disabled veterans’ compensation against attachable efforts. For this reason we suggest as a remedy for this situation that new legislation be drafted for the sole purpose of protecting disabled veterans disability awarded by the Department of Veterans Affairs, which is not to be construed as military retiree pension. The past and current federal laws in its protection against Nonassignability are vague and ambiguous.
It is disturbing that over 200,000 homeless veterans are living on the streets across the country at any given day. There is no doubt that some of these are veterans have been forced to give up their disability compensation, while others have been labeled “child support deadbeats” because they cannot afford the outrageous support demands of the state courts. There are a few who have become fugitives who will not succumb to such unlawful demands or those who have been incarcerated defending their constitutional rights, the rights they have fought for. Have we become such a callus Nation that the government discards its veterans and allow them to give up on themselves, by taking their own lives? As a Nation we need to do the right thing. Our Commander-In-Chief commits to doing the right thing for veterans. We need the same support from our Legislators to do the same, as well. We ask for no more than the same protection of the law that others who have not served in the Armed Forces embrace, the right to be heard.
President Obama address to a Veterans Service Organization.
He spoke at length, “of his dedication to ensure that no area of a veteran’s life goes neglected by that veteran’s government.