BY DEBI KETNER (Soundings On-line)

Had you asked me "way back when" how I felt about being a Navy wife, I couldn't have told you. In those days, I didn't know how I felt mainly because I didn't give my role as a new Navy wife much thought. As far as I was concerned, it was my husband who was in the Navy, not me. He was the one who wore the uniform and put in long working hours, went to sea and ultimately endured those countless duty nights.

I was essentially only along for the ride - moving on my own across country to meet the ship before homecoming, renting an apartment by myself for us to share, setting up utilities and determining the location of the commissary, pharmacy and post office. Later, I busied myself chasing after a cluster of kids as a home day care provider and keeping house and working a part-time job during the holiday season at Sears on the side.

I did everything I possibly could to fill time while waiting for the sailor in residence to come back home. That, and trying the best I could to tolerate the million-and-one adjustments the Navy incessantly dropped on our doorstep, was my occupation.

As the years passed, there was no doubt in my mind how I felt as a Navy wife. I felt challenged, frustrated and frazzled during much of that time, depending on where in the course of our lives we happened to be as a family in relation to the Navy's needs and demands. We literally ate, slept and drank the Navy nonstop in those days, whether we wanted to or not.

Once I learned to fashion our daily existence around the sometimes topsy-turvy world of the Navy (a tough lesson for me), life in that flower-trimmed apartment complex near the base we called "home" became a lot easier. And quieter. We didn't argue as much as we used to once I realized the needs of the Navy simply had to come first in our lives.

I think we spouses are in the military, too, whether we want to be or not. If only because we are so profoundly affected by our spouse's commitment to the military. We don't have the order and consistency to our lives that most civilian wives are afforded, due to the nature of our husbands' career aspirations. Equally, most of them don't have to learn to thrive on change and routine separation the way that we do.

Because it is a lifestyle unique to the mission of the Armed Forces, we are constantly leaping the hurdles of adjustment, acceptance and for quite a few of us, serious emotional hardship as we try to cope with the many issues inherent to military life. It is indeed a neverending task that we all irrevocably share in common. But do we have a right to take a substantial share - up to 50 percent in some cases - of our husbands' military retirement pensions in divorce, even though the Uniformed Services Former Spouse Protection Act (USFSPA) allowing arbitrary division of retirement pay to spouses in divorce proceedings says we can?

The USFSPA, as it currently stands, allows ex-spouses to draw a significant share of military retirement pensions for having been married to members of the military. Retirement shares which, according to this act - legislated as law in 1982 - enables exes to reap thousands, tens of thousands, even hundreds of thousands of dollars in some cases from military retirement over the years.

Even after remarriage.

These are exes who, while married, never put their lives at risk on the battlefield. They never endured shipboard life in the Med for six months at a time. They never spent time as a POW. They were never subjected to sudden recall, drawing a monthly retainer wage in the guise of a "pension" for a continued military obligation designed to ensure sufficient manpower in the event of worldwide conflicts or outright declarations of war.

I could have been granted a percentage of my ex-husband's Navy retirement in our divorce. I never felt entitled to take any part of the pension he had earned. Legally, I was entitled to my fair share under the existing mandates of the USFSPA. Morally, I didn't feel I deserved a single dime from this man's hard-earned Navy pension.

Thousands of retired military men and women started banding together in early 2002 as the ULSG, an acronym standing for the U(niformed Services Former Spouses' Protection Act) Litigation Support Group, set its wheels in motion to legally overturn this Act on behalf of all military retirees - past, present and those still in uniform heading toward retirement.

Their Web site, http://usfspa-lawsuit.info/index.htm states: "Amongst ULSG's purposes is raising public consciousness and knowledge of the Act and its operations, to direct efforts to reform or repeal the Act by coordinating and financing litigation that challenges various aspects of the Act, including its constitutionality."

Funds to further this effort are generated solely by members who support ULSG's efforts to get this law deemed unconstitional - even if that means going all the way to the Supreme Court.

I firmly believe it doesn't matter whether the men you and I were once married to were good husbands or bad husbands. The bottom line is these men were outstanding sailors and soldiers who put in long, hard hours, risking their lives in many cases, making unswerving sacrifices in order to meet their own call to duty for this country to the best of their ability.

They deserve to keep every last cent of what they earned in retirement.

If you feel as I do that the USFSPA is in need of immediate reform, join me in supporting the USFSPA Litigation Support Group as it strives to get this act struck down.

Get involved. Start asking serious questions that deserve serious answers. Take the time to help change a bad law for the good of so many.

BY DEBI KETNER (Soundings On-line)

Weaving a path through the crush of the pre-holiday shopping crowd last Saturday afternoon, Cyndi approached me as my husband and I strolled through Military Circle Mall. It was obvious she had something important to say.

She didn't saunter in my direction the way a close acquaintance would, even though I know Cyndi quite well. But she didn't rush forward in furious haste, ready to snarl, "I have a bone to pick with you, sister," either.

Still, it was apparent from the serious look in Cyndi's eye, her squared shoulders and the purposeful way she strode toward me that she had a bone to pick, nonetheless.

"Your column last week about the USFSPA (Uniformed Services Former Spouses Protection Act)," she said, after we exchanged warm "hellos."

"I'm sorry, I didn't like it. I thought; well, to be honest, that you had failed wives like me. It was too one-sided, I guess," she shrugged. "I didn't steal half of my ex-husband's Navy retirement the way you made it sound in your column. It was awarded to me in our divorce. The commissioner thought I was entitled to it under the law or I never would have received it. I wish you would have taken a more balanced position and defended some of us wives in that column, Debi. It was, well, way too shallow for me."

"Way too shallow." These words, as I heard them, really stung.

Immediately, I reminded myself, as I have countless times in the past, that part of a columnist's job is having the courage to sit in the driver's seat and present without equivocation differing points of view to the public.

Another part - possibly the most crucial part - is having enough guts to listen to the criticisms of readers, and genuinely take their opinions to heart.

For instance, Cyndi's criticisms of my Nov. 9 column, "USFSPA Still Weighs on Many Hearts and Minds." Thanking Cyndi for being honest with me that afternoon, I suggested she assist me with a follow-up column focused entirely on her feelings as an ex-wife who is opposed to the efforts of military retirees trying to get the Uniformed Services Former Spouses Protection Act struck down as unconstitutional, a federal law which, for more than the past 20 years, has allowed state divorce courts to divide military retirement pay as community property. A law that provides for military spouses like Cyndi to legally share financially in the retirements of their ex-husbands - up to 50 percent.

I wanted to know precisely what her perceptions of the USFSPA were as a result of the 21 years she spent as the wife of an active-duty sailor who retired in 1999 as a chief petty officer and today receives half of his retirement check plus $800 in child support - tax free.

"I can understand where these guys, the retirees trying to overturn the law, are coming from," she said when we sat over coffee together two days later. "They feel cheated. But they need to understand that we military spouses aren't trying to financially rape them in our divorces. We are only getting what the law tells us we are entitled to when we go to court."

While Cyndi acknowledges there are a number of exspouses like me who choose not to profit from the USFSPA in our divorces from military members headed for retirement, she believes we are blatantly denying ourselves compensation for the hardships that are so inherent to military life.

"Didn't you manage everything while your sailor was at sea?" she asked. "Didn't you spend the majority of all those years alone trying to raise your kids, dealing with the endless duty nights and long working hours, the transfers and temporary duty assignments that sometimes made life hell for your family and your own career became practically impossible to keep going in the meantime, especially if you had to up and move the family because of his orders to a new command, sometimes moving completely on your own?"

Yes, of course, I managed everything at one time or another during deployments, ship schedule changes and all the rest of it. But did my own career founder as a result? Did I ever feel that the Navy owed me compensation in divorce for having once said "I do" to a man in Navy blue, or when the needs of the Navy unexpectedly inconvenienced me and our family?

Sorry, not once in all those years. My belief was then as it is now: We spouses command our own lives and make them what we want them to be, for better or worse - regardless of where we are pitching a tent to call "home."

Cyndi also believes that the reason so many active-duty military members aren't aware of the USFSPAat their commands is because the military actually supports the USFSPA.

"Think about it, why else would these commands not provide information to its members? They support spouses getting their fair share during divorce, "she said. "They know that the family keeps someone in uniform going and often ends up handling everything for that person. These commands always show themselves as 'pro-family.'Why wouldn't they also be 'pro-spouse' in the case of a divorce?"

It has always seemed to me the reason commands don't offer up much in the way of information about the USFSPA is because they know it's going to hurt retention. Who's going to stay and put in 20-plus years in uniform if they know they'll be splitting everything they've worked so hard for in the event of a divorce?

I asked Cyndi how she feels about the USFSPALitigation Support Group (ULSG LLC), which consists of thousands of retired military members and those still on active duty or in the Reserves fighting to get the USFSPAdeclared unconstitutional, even if it means going all the way to the Supreme Court.

"They are determined and I do worry about it," she said. "If they succeed in getting the law struck down, what will ex-spouses like myself do? It will definitely put us in a bind. We'll have to go out and earn our own retirements - a scary thought at our ages."

Enough said.

By KEITH BUNISH

I recently had an opportunity to review an article related to the division of military retirement benefits in connection with divorce case. The author took issue with the traditional methods of awarding military retired pay to former spouses. It seems that the trial court in the case ordered that the former spouse was entitled to a portion of the service member's disposable retired pay (DRP). Since military retirement benefits are payable to both a military retiree and a former spouse (pursuant to a qualifying court order under Section 1408 of Title 10 of the U. S. Code) only after the retirement of the service member, the court ordered that the benefits were to be divided based on 50% of the retirement benefits at the time of retirement multiplied by a marital fraction, the numerator of which was to be the number of months the parties were married during which the service member was in the military and the denominator of which was to be the number of months the service member was in the military at the date of retirement. At first glance there appears to be nothing amiss about this formula or method of dividing military benefits. In fact, this is the traditional manner in which military retirement benefits are divided throughout the states.

The case involved a master chief, who enlisted in the U. S. Navy at the tender age of 18 and married at 20 when he was a seaman (pay grade E-3). He was divorced some 10 years later when he was at pay grade E-6. He retired as an E-9 with 25 years of service. When the chief retired, his active duty base pay was $3,293.40 per month and his retired pay was $2,058.38 per month ($3,293.40 X 2.5% multiplier X 25 years). His former spouse's benefits equaled $411.68 per month ($2,058.38 X 10 yr./25 yr. X 50%). However, had the court awarded the former spouse retirement benefits based on the "accrued benefit" at the date of divorce, the former spouse's benefit would have been $224.37. Why was that? The chief's active duty base pay at the date of divorce was $1,794.90. Correspondingly, his "accrued" retired pay would have been $448.73 ($1,794.90 X 2.5% X 10 yr.), 50% of which would be $224.39. As it turns out the former spouse received, at retirement, over 90% of the retirement benefit that had accrued during the marriage. How did this take place? Quite simply, because the award by the court was based on DRP at retirement, after continued years of service and promotions, not at the date of divorce.

Military retirement benefits are in the nature of a defined benefit plan, i.e., an annuity paid over the life of the participant. However, military retirement benefits are uniquely different from qualified plans sponsored by private employers. Under qualified plans there is a formula so that retirement benefits can be determined at any time. In addition, there is a normal retirement age associated with qualified defined benefit plans. Retirement benefits commenced prior to the plan's normal retirement age can be adjusted using the plan's actuarial factors. Not so with military retirement benefits. The monthly benefit can only be determined at retirement because that is the only time when the pay grade and years of service will be known.

Family courts, familiar with dividing qualified plans, often do not know or understand the unique differences between qualified plans and military retirement systems. For that matter, most family law attorneys do not recognize these differences either, or the inequity they may create. The courts, as the article pointed out, see military retirement benefits as the "square peg" in the "round hole" of property division. The court's solution is to base the division on the benefits to be received at retirement adjusted by a marital fraction.

There is a legitimate reason for basing the division of military retirement benefits at the time of retirement. Military retirement benefits are subject to adjustment for inflation by the addition of cost of living allowances (COLAs), a very important and valuable component of military retired pay. However, a former spouse's entitlement to COLAs is allowable only if the former spouse's entitlement to the service member's retired pay is stated or can be stated as a percentage of the retirement benefits at retirement. If the former spouse's entitlement is stated as a fixed dollar amount, which results when benefits are calculated as of an interim date, the entitlement to COLAs is lost.

The inequity of the division of military retired pay in the traditional manner employed by courts was not envisioned by the Uniformed Services Former Spouses' Protection Act (USFSPA). The principal purpose of the USFSPA was to divide military retired pay as a marital asset as ordered by the state courts (with some limitations) and to provide for direct payment by the paying agents for the Uniformed Services to the former spouses. The USFSPA preceded the Retirement Equity Act of 1984 (REA), which is codified in the Internal Revenue Code as Section 414(p). REA addressed only qualified plans under Section 401 and some 403(b) plans. It would have been helpful if some of the provisions of REA had made their way into the USFSPA, such as allowing distribution of a former spouse's assigned benefit at the service member's "earliest retirement date" and providing for interim calculations of benefits. These attributes would serve to lessen the confusion and resulting inequities in dividing military retirement benefits. It is not likely that there will be any material changes of this nature to the USFSPA in the near future. Historically, it appears that both the courts and family law attorneys have missed the point.

There is a way to both "freeze" the benefits of a former spouse at the date of divorce and state them as a percentage of benefits at the date of retirement. In order to accomplish this, factors for continued years of service and promotions must be included in the formula for division. How is this accomplished? Consider the following: The intent of the court's award is to provide a benefit to a former spouse equal to 50% of the service member's retired pay at the date of divorce. However, most state laws provide that former spouses cannot share in any post-divorce increases in salary earned by the participant. The Court's intent can be accomplished using the following formula: Number of months service Member and former spouse were married during which the Active duty base pay for service member was in the U. S. service member at the Military at the date of divorce X date of divorce X 50% X DRP Number of months the service Active duty base pay for member was in the U. S. Military member at date of retirement at the date of retirement Example: The service member is an O-3, with 15 years of service at the date of divorce. He had been in the military 3 years prior to his date of marriage. He divorced after serving 15 years. His active duty base pay on the date of his divorce was $3,654.00. He continued in the military until he had served 30 years at which time he was an O-6 and his active duty base pay was $6,694.00. His "accrued retired pay" as of the date of divorce was $1,370.00 (see the table), 50% of which would be $548.00, the former spouse's entitlement at the service member date of retirement. Employing the typical formula utilized by family courts, the former spouse's benefit at retirement would be $1,004.00 or 73% of the "accrued retired pay at the date of divorce. However, by employing the formula outlined above, the former spouse's entitlement would be $548.00, the same as the "accrued retired pay" calculated above. This results because of the inclusion of the pay grade fraction. This fraction operates to freeze the former spouse's entitlement at the benefit accrued as of the date of divorce based on the pay grade at the date of divorce. The traditional formulas do not incorporate this factor. Now the former spouse's benefit can be stated as a percentage and is eligible for COLAs. This formula provides for eligibility for COLAs which are added after the date of retirement only. The formula can be modified slightly to provide the former spouse with COLAs which occur while the service member is still on active duty, which is permissible in some jurisdictions.

It appears that this method has always been available for consideration as a means of dividing military retired pay. However, it also appears that courts and family law attorneys may have simply overlooked the effectiveness and fairness of utilizing it. Divorce is adversarial by nature. Fairness is certainly in the eye of the beholder. To the family law attorneys who happen upon this article, use all of the skills available to you, but do not blame the system for any perceived inequity. Fairness is available. You just have to look for it. To the judges who happen upon this article, just because you divided military benefits one way in the past, does not mean you have to continue to do it the same way in the future. The author of the aforementioned article was correct in his perception that the division by that court was not fair. It wasn't. By the way, a similar formula can be used to divide federal retirement system benefits, but that's another topic. Problem solved. Next…

By a Florida ARA member

She will receive half of my retired pay based on my pay grade (E5) at the time of our divorce, for the 14 years we were married while I was qualifying for military retire(ment). Why did she agree to this? Simple, she knew I would "walk", at 19 (years service), if she didn't.

By DON HOLLAND

I have been involved in this battle with you for four hears now and I could well be a "Poster Child" for USFSPA Reform because I am having a total of $1,850 a month garnished from my V.A. Disability Compensation and Navy Retired Pay.

I am 100% totally and permanently disabled -- service connected. My web site title is "Outraged Veteran" and I have certainly earned that reputation with everyone in Congress because of my continuous barrage of venomous rhetoric to them.

During the past four years, I have communicated with many of you who are deeply committed to reform of USFSPA. There is a small cadre of truly dedicated individuals who fight this battle every day. I won't mention names because we all know who you are and I would be sure to miss a few. Most of you are members of ARA, WISE, and/or AAUL. I want you all to know we sincerely appreciate your efforts, you are an inspiration to all of us. PLEASE KEEP UP THE FIGHT!

Having said that, I am still MAD AS HELL, but the anger I have is being directed at Congress, DOD, and the armed services for not supporting us has made very little difference. I am now MAD AS HELL at our own Shipmates! The other 90,000 or so who are affected by USFSPA and who won't do a damned thing except sit back and complain that ARA hasn't solved "their" problem for them. We have about 6,000 signatures (as of 8/25/01, there are 6,500+ (Ed.)) on our petition and I know many of them have not joined us even though they have every reason to.

Having fought this battle on the front lines with many of you for so long, I have gained some insight into the situation in Washington. I have made numerous trips to D.C. and talked to many Congressional Staff personnel. We have very little support in Congress. I know DOD does not support us. Their report to Congress on USFSPA will not be favorable to our position and we can't expect any support from the individual services. So where does that leave us? WE ARE UP THE PROVERBIAL CREEK WITHOUT A PADDLE! IN THE NAUTICAL VERNACULAR, WE ARE IN EXTREMIS AND THAT MEANS WE MUST ALTER COURSE AND/OR SPEED IN ORDER TO AVOID DISASTER.

IF WE DON'T GET SOME ACTION IN THIS CONGRESS, I PREDICT IT WILL BE OUR LAST CHANCE TO EVER GET USFSPA REFORM. SO WHAT CAN WE DO? THE SINGLE MOST IMPORTANT THING WE CAN DO IS RECRUIT MORE MEMBERS. WE DON'T EVEN HAVE TO HAVE ONE PERCENT OF THE TOTAL PERSONNEL AFFECTED BY USFSPA IN OUR RANKS! IF WE CAN'T DO ANY BETTER THAN THIS, WE MIGHT AS WELL THROW IN THE TOWEL! I APPEAL TO EVERY MEMBER OF ARA TO RECRUIT ONE NEW MEMBER THIS MONTH. STRENGTH IS IN NUMBERS, AND IF WE CAN DOUBLE OUT MEMBERSHIP WE WILL INCREASE OUR STRENGTH TENFOLD!

By DENNIS EGGE

Tony S. a young E5 being discharged TDRL, because he contracted MS from a required flu shot, after 15 years of active duty. Believe me, that didn't make me feel too good about getting my flu shot, the next day but I did. As it turned out, they gave me flu, pneumonia and tetanus, all at the same time, and it kicked my butt a little but I'm back in battery, now.

Tony was referred to me by someone in my chain of command, regarding SBP but as it turned out, since he was in the process of an ugly long distance divorce, in addition to being mustered out and being sick, he wasn't certain if he should sign up for it. I agreed, he shouldn't and if he was forced into it, his former spouse should pay for it out of her USFSPA gold (we can imagine how that will go down with the divorce court judge).

The real sad part of Tony's story, is the fact that his soon to be former spouse, was an ombudsman, until she conned him into a legal separation, before their active duty marriage vested, and left, with the kids.

I encouraged Tony to get things straight with the VA: He needs a VA ID card and to ensure the VA will have access to his medical records, before he ships out and they are transferred to the navy's medical record black hole. I also urged him to purchase a copy of our Divorce and the Military II as a reference, and to consider joining the DAV, especially, if the local service officer did right by him.

You can see, right away, the urgent need to counsel service members, regarding the impact USFSPA will have on their post active duty lives, unless they make some tough decisions, before their marital relationships vest, like Tony didn't. I urged him hope for the best and plan for the worst, concerning his divorce, considering he is already rated 30% disabled and subject to periodic medical review.

He said I was a God-send and we exchanged email messages but I suspect his meds. were playing a role in his up-beat attitude. I'm unhappy we didn't meet three years ago.

By PHONACELLE SHAPEL

Remember how much your divorce cost you? Remember those attorneys who charged you $100 or more per hour for their valuable time? Remember those same attorneys who couldn't do anything for you when it came to your ex-spouse getting 40 or 50 percent of your military retired pay -- but they still expected to get paid? Now, do you honestly think those who are the officers of the ARA are being paid $100 per hour or more for all the hours they put in on our behalf? Do you ever stop to wonder just how much money out of their own pockets they have put into this effort over the years? "Well, how much would it be worth to you to have Congress change the USFSPA -- $500 per month? $600 per month? $1000 per month, or more?

Weren't you more than just a little but upset when the court divided your retired pay with your ex-spouse? You all know exactly how much your ex-spouse receives each month. I trust you know that she or he will continue to receive it for the rest of your life UNLESS you help the ARA get some Congressional changes to the law. Aren't you still upset enough to fight for equity by helping the ARA work for us? "Have you ever stopped to realize that if your ex-spouse received just $500 per month out of your retired pay that, over a period of 20 years, that adds up to $120,000 out of your pocket? "So how much will it be worth to you if you help the ARA succeed? Remember, the ARA is the only organization whose PRIMARY stated focus is on reform of the USFSPA -- and at this time, there are not any other viable options except through Congressional action.

"Do you invest in the stock market? Do you have an IRA or a KEOGH? Do you put your money in banks? What type of return on your money do you hope for? Well, for a small ongoing financial investment in the ARA you might reap a much larger return on your money than from all of your other investments combined. Think about that and write that donation check to the ARA today and again next month and the month after that.

"Remember, if you always think the other person will donate, and that other person thinks you're the one who is going to donate, then we won't have any ARA -- and then, for sure, you'll be paying your ex-spouse for the rest of your life. Invest in YOUR financial future by helping the ARA fight for all of us!!"

(Editor's Note: We've been wanting to say something like that for some time but, knowing our constituency, felt it might be considered too self-serving. On sober reflection, however, ARA's managers are serving YOU, not themselves. The omnipresent needs are M&M's (Members and Money). Thanks for the reminder, Phonacelle!!)

The Fort Bliss JAG office cautioned one of our survivors "to mind our own business", in response to a request to brief troops there regarding The Uniformed Services Former Spouses Protection Act (USFSPA) (10 U.S.C. 1408 et seq.). Well, when the US Army chooses to ignore their responsibility to protest those it orders in harms way, this IS our business. A barrage of telephone calls directed to the Fort Bliss JAG office (915-568-6040) advising that its attitude is shameful, is in order.

By GEOFF KEELER

Our President as Commander in Chief can order many things to be done, but he can't sign into law legislation which doesn't reach him. So let's face it: if we want USFSPA reform there is much to do by our ARA membership, to get it through Congress.

A lot of hard work has been done behind the scenes to get USFSPA reform bills introduced in the House of Representatives. These include H.R. 2200 in the 102nd Congress, H.R. 2537 in the 105th, H.R. 72 in the 106th and H.R. 1983 in the 107th. In every case, a decisive negative factor has been the lack of sufficient expressions of interest by USFSPA victims.

On the other hand, letters to Congress were the principal reason for the legislative action which, in 1990, solved the problem of retroactive applications of the USFSPA. And let's not forget the funds it takes for the ARA to continue to press for success in the matter of USFSPA justice. A previous contributor to VOX POPULI eloquently suggested that the potential rate of return to those affected by the USFSPA is huge. I'm sure we all could use hundreds, or even thousands, of extra dollars per month in our military retirement checks, not to mention a renewed sense of faith in our government when we are treated with respect and enjoy equal justice under law. That's why improving the odds by every letter written and every extra contribution to the ARA is something we can't let slip by. So we should do some serious thinking about our individual levels of effort and ARA support at this critical time.

In addition, let's all try to recruit new members -- and, remember, it's not just divorced, retired service members who have a stake in the USFSPA. Other potential sources of support are active duty folks with career intentions. Given that the national divorce rate is in excess of 50%, a lot of these individuals will, eventually, be plundered by the USFSPA when they retire. So ask around, find interested men and women and brief them on the USFSPA (which the DoD won't) and ask for their participation and support.

Don't wait for "George" in the ARA or the "Georges" elsewhere to make USFSPA reform happen. WE are the "Georges" and the buck needs to stop here.

By Larry Allen (The Veteran Voice)

An October 7 article appearing in the San Diego based Navy Compass written by Naval Legal Service Office Southwest’s Leonard Reingold entitled, “Laying the ‘10-Year Rule’ Myth to Rest“makes one wonder why there are “myths” associated with the 10-year rule to begin with. Should an organization that prides itself on good communication up and down the chain of command have “myths” associated with its Personnel and Readiness issues? The 10-year rule mentioned is associated with the Uniformed Services Former Spouse Protection Act (USFSPA) 10 USC 1408. Most active duty service members today believe that the USFSPA law doesn’t apply to military marriages that lacked 10 years of concurrent marriage and military service. The 10-year rule simply provides direct payments to former spouses from DFAS only, any military marriages with less than 10 years will be required by court order to pay the former spouse directly for life. So why is the 10-year rule considered a “myth”? Could it be because DOD has never provided any useful unbiased information on the antiquated, unnecessary USFSPA law so most service members form misconceptions of their own and are blind-sided when it’s too late to do anything about it?

My next reaction was to ask, “Whose side is DOD and JAG on?” When it comes to military retirement/retainer pay and divorce there is no fence sitting, you can’t appease both sides. Leonard wrote, “the mythical ten year rule which allegedly prevents a non-military spouse from receiving any share of the military spouses military retirement in a divorce or legal separation if the marriage lasted less than 10 years.” For many service members this lack of information actually protects their pay from being treated as community property, which by the way was the ruling of the USSC and the congressional goal of keeping the military retirement system an incentive to recruitment and retention. So why is DOD and JAG sympathetic to military spouses intent upon ensuring Defense appropriated funds are misused for non-defense purposes? As a DOD employee supportive of the men and women in uniform, Leonard should have phrased that statement from the service member’s perspective stating, “Ignorance of the 10-year rule prevents a large number of career service members from losing a portion of their military retirement pay for life.” Obviously JAG requires additional training on USFSPA impact, the USSC McCarty decision and their primary responsibilities to the men and women in uniform.

The article goes on to state, “The non-military spouse is entitled to receive a share of the military spouse’s military retirement no matter how long or short the marriage is, as long as the marriage existed sometime during military service.” Here Leonard couldn’t be farther from the truth. Military spouses are never entitled to military retirement pay. From DFAS’s web site: “Military retired pay is an entitlement based on the service member's rank and number of years of creditable service at the time of retirement. It is paid on a monthly basis and as such is not a fund which can be valued or divided as of some point in time, either before or after the member's retirement. Thus, it is not comparable to a company's private retirement plan, which can be identified as a specific amount and can be divided as of a particular date.” This article makes one wonder if JAG has ever bothered to read the very web site it sends service members to for information on USFSPA. What did JAG do before the Internet? Even the 3-year-late DOD Report to Congress on USFSPA states that “service JAGs might benefit from additional USFSPA training.” Congress enacted the military retirement pay system designed to accomplish two major goals: to provide for the retired service member, and to meet the personnel management needs of the active duty military. The community property division of retired pay allowed under the USFSPA interferes with both of these objectives. So why does DOD and JAG secretly support USFSPA without informing our sailors and marines?

The article goes on to state, “This myth appears to be mistakenly perpetuated by individuals misinterpreting that federal law commonly known as the “USFSPA.” Individuals? The lack of formal USFSPA briefs indicates DOD prefers to keep their own people in the dark but what about their attorneys and judges? The biased DOD Report to Congress on USFSPA, written by pro-USFSPA lawyers, states, “many problems regarding USFSPA arise when private practitioners attempt to treat military retired pay division in the same manner they would those of a private company’s pension plan.” Could it be because military retirement pay cannot stand up to any definition of property? Could it be that only members of the Armed Forces have their monthly wages earned after the divorce is final divided with a former spouse for life? Could it be DOD prefers to allow state judges to determine the amount a military retiree should receive instead of Congress?

The article goes on to state, “In one section of the USFSPA, it states that the Defense Finance and Accounting Service (DFAS) will not divide the military retirement of a service member between the military member and their spouse, unless the marriage is at least ten years long. However, all 50 states have laws that allow their state courts to divide military retirement between the two spouses in a divorce or legal separation, regardless of the length of the marriage. The USFSPA specifically authorizes state courts to use their state’s law on the issues of whether and how much to divide the military retirement. Thus, even if the marriage is less than ten years, state courts can still determine an appropriate percentage of military retirement benefits accruing to the non-military spouse, and will order the military spouse to pay that amount to the non-military spouse. Different states may come to different results depending upon the methods they use to divide the military retirement.” That statement is factually incorrect. There are no state laws that authorize the division of military retirement pay. Why would states need a federal law to authorize states to use their own laws? All 50 states use the federal USFSPA law option of treating military retirement pay as community property or not. Guess which decision state judges chose 99% of the time? Written as an option, in reality USFSPA is a mandate. It’s the USFSPA that determines whether to divide military retirement pay or not and it’s the USFSPA that determines how much. States never had the authority to divide military retirement pay before USFSPA and won’t if repealed. Yes, states do interpret the federal USFSPA differently with different results. Does the equal treatment clause of the US Constitution ring a bell for JAG? The USSC has repeatedly recognized that “the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” Hisquierdo v. Hisquierdo, USSC 1979. “State family and family-property law must do "major damage" to "clear and substantial" federal interests before the Supremacy Clause will demand that state law be overridden. United States v. Yazell (1966). Mr. Reingold, please explain to us service members how a small group of officer wives in the state of Texas left without garnishment/alimony laws until 1995 can do “major damage” to “clear and substantial” federal interest.

Finally the article states, “DFAS’ “ten-year rule” means that the retirement money owed to the member’s spouse will not be paid directly from the retirement check unless the marriage lasted at least 10 years during the member’s military service. However, the member is still obligated to comply with the state court order, and must provide the amount of support identified in the court order.” Leonard neglected to mention that service members continue to be obligated to recall and if recalled they no longer draw retirement pay due to drawing active duty pay. Therefore, former spouses return to court and many states will order the service member to pay an equal amount out of their active duty pay. There were no provisions in USFSPA to protect recalled service members therefore zero divided by any number equals zero doesn’t compute for DOD. Even though the former marriage may qualify under the “10-year rule” DFAS will not pay the former spouse directly because DFAS doesn’t recognize the service member as being on the retired list. Why is this so difficult for DOD and JAG to understand? Leonard also neglected to mention that many state courts will either ignore or circumvent the part of the USFSPA law, 10 USC 1408(c) (1) that prohibits disability compensation from division with a former spouse. Disability compensation is also protected from division by Title 38 USC 5301. DOD should lay the 10-year rule “myth” and all other myths to rest and start providing knowledge through mandatory fair and balanced unbiased briefs on the USFSPA law. Then let the sailors and marines decide.

"A popular Government without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors, must arm themselves with the power knowledge gives." -James Madison