Chairman Stump and Members of the Committee:

The American Legion salutes you for conducting this hearing regarding certain inequities contained in the Uniformed Services Former Spouses Protection Act (USFSPA) and welcomes the opportunity to present testimony with respect to the impact of court-ordered garnishment of the retired pay of members of the Armed Forces to former spouses.

Mr. Chairman, The American Legion supports the intent of HR 2537 which you introduced last year. We note it would amend the USFSPA to require payments to be made from the disposable retired pay of a former member of the armed forces to his or her former spouse in compliance with court ordered alimony to terminate upon that spouse’s remarriage.

It would also require that if a member’s marriage terminates or there is a legal separation prior to retirement, such monthly payments will be based on pay grade and length of service during the period of marriage, rather than the amount of retired pay. Finally HR 2537 would require the member’s current or former spouse to obtain a court order for reapportionment of the member’s disposable retired pay by the later of two years of the date of the final decree of divorce, dissolution, annulment, or legal separation or six months after the enactment of this Act.

At its past National Conventions, The American Legion has unanimously adopted mandates urging Congressional hearings on the USFSPA and support for the principle that there must be equity in judicial determinations involving a former spouse’s right to a portion of a member’s military retired pay. While it is recognized that former spouses have the right to adequate support, The American Legion believes military pay should only be included in judicial determinations of appropriate level of support on a case-by-case basis. We further believe that the law which requires that military retired pay be distributed as property between service members or military retirees and former spouses should be changed as follows:

Currently, former military spouses receive payments for life even when they remarry. Military retired pay should be treated as income, rather than property, and state divorce courts should apportion retired pay as alimony and child support in accordance with state domestic laws and regulations.

The period of time following separation or divorce should be limited to two years within which an ex-spouse can assert aclaim for a portion of military retired pay for alimony or child support.

Currently, military retired pay which is waived in order to receive VA disability compensation under title 38 United States Code may be garnished pursuant to a court order in divorce cases. That section of the USFSPA which makes disability pay unavailable for apportionment should be reaffirmed in separation or divorce proceedings. This would require amending Title 42 United States Code Section 659 to eliminate the inconsistency between that provision of the law and the USFSPA.

Title 38 USC 5301 provides that payments of veterans’ benefits are exempt from taxation or seizure under any legal or equitable process whatsoever. This process notwithstanding, there are circumstances under which the Department of Veterans Affairs (VA) can garnish a veterans’ disability compensation. Similarly, under certain circumstances, VA can apportion some or all of a veteran’s benefits.

As we are aware, disabled veterans may be entitled to service-connected disability compensation under Title 38 USC, Chapter 11. However, Title 38 USC 5304 precludes the concurrent receipt of VA compensation and military disability retired or longevity retirement pay. Title 38 USC 5305 provides that veterans who are in receipt of armed forces retired or retirement pay shall be entitled to waive a portion of all such retirement pay in order to receive VA compensation.

Only in divorce proceedings can courts order VA to garnish a veterans’ compensation for the purpose of alimony or child support payments, if a waiver of retired pay is in effect. Title 42 USC 659 provides authority to subject a retired member’s disability retired or longevity retirement pay to court-ordered garnishment. It must also be noted that the General Counsel for the Department of Veterans Affairs has ruled that that portion of a veterans’ military retirement pay which has been waived in order to receive disability compensation may be garnished.

The original intent of the USFSPA was to recognize the important role military spouses play in the careers of our military servicemen and women. The rigors of military life have changed considerably in recent years. There are more frequent moves as the size of Armed Forces decreases and missions increase or are extended, and there is the real risk, even in peacetime, of being killed in the line of duty. Many members of Congress believed these hardships placed military spouses at a disadvantage because they could not pursue individual careers. For some Congressmen, this was a compelling argument in the USFSPA legislation being passed. Ex-spouses can claim as a lifetime annuity, regardless of the circumstances of the divorce, a percentage of their former spouse’s military retirement pay whether ex-spouses remarry or not.

Why has the military been subject to such draconian laws as contained in the USFSPA? Unlike other professions, the military appears to be an easy target for Congress. While civilian professions suffer similar hardships that military careerists experience -- long hours, frequent moves, etc., -- no other civilian or government profession is exposed to the dangers of mortal combat which the military often faces. Unquestionably, and unfortunately, military divorces are on the increase.

Civilian pensions are often based on member contributions or on annuities which constitute real property that occurred during marriage. During the course of their careers, civilians can quit at any time, but this is not an option for the Armed Forces. Enlisted men and women must serve until their commitment is completed; and officers may request to resign only after their initial commitment has been completed.

Members of the armed services are obliged to accept a highly disciplined and controlled life. Servicemembers are subject to the Uniformed Code of Military Justice (UCMJ) and are also subject to service-connected injuries and ailments which may be so severe and debilitating to last a lifetime, and may lead to military disability retirement, or may impact on employment earnings in a second career. Former spouses are not subject to recall, the UCMJ, or to service-connected injuries or to any restrictions on post-service employment.

With civilian pensions, the courts look at the total circumstances of the marriage and deliver their judgments. But such is not the case with military personnel and the guidelines contained in federal law. State courts have consistently ruled that if a former spouse reopens a divorce case under the USFSPA, they feel mandated to rule in favor of former spouses regardless of the circumstances.

The entire focus of the USFSPA is on the former spouse. It is completely silent on the issue of equity for the military member and his or her second family. The net result of this legislation has been to create an even larger class of "victims" than the former spouses it was intended to protect. This inequity should be remedied. The USFSPA, as currently interpreted and applied by the courts, is decidedly biased against those who have served and earned their military retirement pay and deserve to receive disability compensation for injuries or ailments sustained. While a member’s spouse may endure some of the inconveniences and hardships associated with military life, clearly military spouses do not share in the extraordinary sacrifices that our servicemen and women make every day they proudly wear their uniforms in the defense of this nation.

It is important to note that the inequitable provisions contained in the USFSPA threaten grave harm to the goals of the military retirement system which serves as a major incentive to the long-term maintenance of a competent and professional military force. The military is already subjected to retention problems and certainly does not need to contend with this long-standing threat to both recruiting and retention.

The American Legion believes Congress needs to revisit the issue of the Uniformed Services Former Spouse Protection Act and to adopt legislation which will provides similar equal and fair treatment to the servicemember and his or her second family.

Mr. Chairman, this concludes my statement.