From: North, Jim
Sent: Thursday, October 20, 2005 11:59 AM
To: Ofc. A. Sanborn
Subject: RE: Disabled Veterans Issue
Dear Senator Sanborn,
Thanks for the input.
I have already contacted both Senator Levin and Stabenow and Congresswomen Miller. All their responses refer me back to the unjust law.
I even personally talked to Senator Carl Levin's brother, Congressman Sandy Levin, at a VFW Town Hall meeting in Roseville, MI during June 2004 concerning the unjust awarding of Veterans Disability Pay to a third party.
But I didn't think Congressman Sandy Levin would help me after he introduced Senator Switalski and mentioned at his opening remarks of the Town Hall meeting that he was over at Senator Switalski's house playing basketball with the Senator's son right before he came over to the meeting.
Senator Switalski's brother is Judge Switalski who violated his Oath of office by not adhering to Article 6, 2nd Cl of the U.S. Constitution which states that Judges must adhere to Federal Laws that they are bound by, by ordering an enforcement of Judge Miller's unjust ruling. Congressman Sandy Levin was suppose to get back with me, but never did.
Congresswomen Miller's husband, Judge Miller, directly violated his Oath of office by not adhering to Article 6, 2nd Cl of the U.S. Constitution which states that Judges must adhere to Federal Laws that they are bound by, when he awarded half my disability pay as a property settlement to my former spouse. Judge Miller, a one time Commander of the Selfridge Air National Guard Base, Harrison Township, MI and Vietnam Veteran who is also a member of my VFW post in Mt. Clemens, MI. appears to be anti-veteran?
All five attorneys I hired after both Judge Miller and Switalski's illegal ruling all refused to help me in the pursuit of justice. Even though I paid these attorneys a total of $10,000, they were of no help and even attempted to persuade me to go along with the unjust rulings.
The below links are some of the letters I have written to my elected officials in Washington D.C.
Write Your Elected Representatives! http://www.veteranvoice.com/ubb/Forum5/HTML/000019.html
Committee for Equality
and Justice for the Military Wife?
Additionally, I and my wife personally traveled to Washington D.C. this past June 2004 and meet up with Congressman Filner of California, Congressman Filner made arraignments for a group of us veterans to go to Steve Buyer's, Chairman of the VA, office and speak with his Communications Director, Jeffrey Phillips.
I have since been corresponding with Jeffrey Phillips since June 2005 concerning the unjust USFSPA and lack of VA funding for our veterans. You will find pictures of my visit in Washington D.C., Capitol Hill, at this link:
As you can see, I have brought the unjust USFSPA and unlawful awarding of disability pay to the attention of my elected representatives at the federal level, and more.
But still, no Congressional review in sight at the present moment?
Meanwhile, I have been awaiting a decision from Judge Switalski since March 2005 for the following motion:
MOTION TO AMEND THE CONSENT JUDGMENT
AMEND THE CONSENT JUDGMENT
1. Plaintiff filed for Divorce on January 5, 2001.
2. The Defendant and Plaintiff entered a consent judgment of divorce with their counsel on November 30, 2001.
3. By either fraud on the part of both parties counsel (failing to inform both Plaintiff and Defendant that awarding Defendant's retirement/retainer pay to Plaintiff would deny Defendant's due process of law for Defendant's property) or by mutual mistake of fact (neither party knew that awarding the Defendant's retired/retainer pay to Plaintiff would be in violation of Defendant's Constitutional Rights of the United States of America under the Fifth and Fourteenth Amendments, in the form of deprivation of property without due process of law and Supreme Court ruling McCarty v. McCarty, 453 U.S. 210 (1981)., the parties agreed to assign a portion of Defendant's retired/retainer pay to Plaintiff in the form of monthly payments for life.
4. As determined by this Court on November 30, 2004, the consent judgment of divorce improperly awarded Plaintiff a portion of the Defendant's disability benefits.
5. Following a period of total pre-emption, State treatment of military retainer/retire pay is accomplished through the window of authority granted in the Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. § 1408 ("the Act") from Congress to the States. The Act denies Defendant of his constitutional rights.
6. Donald H. Rumsfeld is the Secretary of Defense for the United States of America. The Department of Defense administers and oversees the Act pursuant to authority granted by statute; the Defense Finance and Accounting Service ("DFAS") is an instrumentality of the United States Department of Defense that provides essential accounting and administrative services to enforce and implement the Act's provisions.
7. As determined on two separate occasions by DOD, Defense Finance and Accounting Service ("DFAS") attached letter, the consent judgment of divorce improperly awarded Plaintiff a portion of Defendant's military retired/retainer pay by improperly awarding ex-spouse 50% of Defendant's Military Retainer Pay. Specifically, the language dividing retired pay is faulty and does not follow Federal Regulations. In order for an award to be enforceable, it must be expressed either as a fixed dollar amount or as a percentage of disposable retired pay in accordance with Uniformed Services Former Spouse Protection Act USFSPA (Title 10, Section 1408), Dividing Military Retired Pay.
8. The state court consent judgment of divorce order and DD Form 2293 being submitted on two separate occasions by Defendant's former spouse through her attorney and accepted by DFAS which, on their face, inform the government of intent, conspiracy or an actual act to violate the limitations of 10 USC 1408 and prohibitions of 38 USC 5301, the latter of which is a criminal act punishable by prison and fines. The USFSPA, at 10 USC 1408(c)(1), statutorily limits payments to former spouses to no more than 50% of "disposable retirement pay". This statute, at 10 USC 1408(A)(4), clearly defines "disposable retirement pay" as that amount left over after mandatory deductions for the retiree's Federal income tax withholding and other amounts such that waived statutorily due to the receipt of veterans disability payments. No Federal law authorizes any state court, attorney or former spouse to circumvent this limitation through any legal means so a former spouse can recoup any funds lost when the military retiree waives retirement pay to receive veterans' disability pay. Defendant's former spouse, and her attorney who prepared the divorce order, have openly evaded the statutory payment limitations of 10 USC 1408 by having the state court divorce decree containing authorization to commit or attempt to commit violations of law because Defendant waived his military retirement pay to receive veterans' disability payments. Not only does this action by Defendant's former spouse and her attorney, by their submission of payment demand applications (DD Form 2293) and court orders to DFAS, violate the limits of 10 USC 1408(A), they also signal an intent to use some scheme to violate the non-assignment of veterans disability payments clause appearing at 38 USC 5301. The seriousness of this issue is amplified when one considers the U.S. Sentencing Commission assigns a criminal sentence level of 2B1.1 to a 38 USC 5301 violation. When requesting a direct payment from DFAS, Defendant's former spouse through her attorney submitted the divorce order and a signed DD Form 2293, "Application for Former Spouse Payments from Retired Pay" http://www.dfas.mil/money/garnish/ scroll down to Application for Former Spouse Payments from Retired Pay. The DD Form 2293 clearly states the following:
- "I hereby acknowledge that any payment to me must be paid from disposable retired pay as defined by the statute and implementing regulations." (Block 3, last sentence, DD Form 2293)
- "Making a false statement or claim against the United States Government is punishable. The penalty for making a false claim or false statement is a maximum fine of $10,000 or maximum imprisonment of 5 years or both (18 USC 287 and 1001)." (INSTRUCTIONS FOR COMPLETION OF DD FORM 2293 Block, last sentence titled Important Note, DD Form 2293)
Defendant objected to the assignment of his military disability benefits pursuant to the judgment of divorce and this Court ruled in his favor by striking that portion of the judgment of divorce.
9. On 22 December 2003, Defendant was ordered by this court to pay Plaintiff $402.50 per month until a QDRO was established.
10. On 30 December 2003 (see attached), this courts Friend of the Court, by either fraud or mistake, attempted to disregard the Act by making a false claim against the United States Government and made up their own calculations by garnishing the Defendant's military retainer/retire pay, to collect a fabricated arrears from a monetary amount which had not been established by the USFSPA. The USFSPA (c) (6) does not provide for the collection of arrearages of retired pay as property or alimony and will only provide garnishments for Alimony and child support arrearages, none that I have.
11. On 15 March 2004, this court entered a QDRO which, rather than granting a fifty percent share of retirement, ordered a formula division of 50% times a fraction, the numerator of which is 179 months of marriage during the Defendant's credible military service, divided by the Defendant's total number of months of creditable military service, a percentage which equates to 35.6573% of military retired pay, according to the Defense Finance and Accounting Service.
12. Two entirely different orders thus exit: the initial final decree of divorce granting a full "50% of the Defendant retainer/retire pay and VA pay from the military." and, the QDRO ordering effectively 35.6573% of the Defendant's military retainer/retire pay. The QDRO does not clearly cancel the original decree, and the terms of division differ, thus seemingly the two orders conflict.
13. On 5 April 2004, this court ordered Defendant to pay $225.00 per month from the date of the judgment of divorce which is his VA disability pay for as long as he is receiving them and to catch up the back payments and continue regular payment, back payments should be caught up within 60 days.
14. On 3 June 2004, this court's Friend of the Court makes numerical report of amounts alleged to be Veterans' Administration benefits received by both Plaintiff and Defendant, but makes no recommendation regarding resolution of the disability benefits issue. And, the Report and Recommendation inaccurately characterizes income and confuses Veterans' benefits with military retirement.
15. If this Court refuses to amend the consent judgment of divorce, Defendant will be unfairly harmed by being denied substantive due process protections under the Fifth and Fourteenth Amendments to the United States Constitution, in the form of deprivation of property without due process of law.
16. The Act did not exempt the Defendant, who joined the United States Armed Forces "All Volunteer Force" in 1978, before the Act was passed.
17. Upon entering a contract in the "All Volunteer Force" the Defendant was promised retired/retainer pay after successfully completing 20 or more years of active duty with the understanding that he could be recalled to active duty after retirement.
18. During the course of Defendant's 21 years of honorable active duty to qualify for retirement/retainer pay, Defendant participated in hazardous duties, combat operations, and has obtained a service connected disability. Defendant continues to fall under the Uniform Code of Military Justice and is subject to recall to active duty in the time of war or national emergency declared by the President of the United States.
19. Defendant had already completed 8 years of active duty service before he married Plaintiff. Defendant was only married to Plaintiff for 13 years of his active duty service. Plaintiff filed for divorce after Defendant completed 21 years of active duty service.
20. Plaintiff did not meet any of the qualifications to receive military retainer/retire pay, as did the Defendant, yet she has been qualified by this court to receive military retainer/retire pay from the Department of Defense, for life.
21. Before the Act was passed in 1981, divorce courts were prohibited from treating veterans' military retainer/retirement pay as marital property subject to division between divorced parties. McCarty v. McCarty, 453 U.S. 210 (1981).
22. One purpose of the Act, as ostensibly articulated by its congressional sponsors, was to legislatively overrule McCarty v. McCarty, 453 U.S. 210 (1981). However, the Constitution's guarantees of due process under the Fifth and Fourteenth Amendments prohibit the Act from applying retroactively to service members who entered the military before the Act was passed. This court should not ignore Defendant's constitutional rights, pursuit for justice and his entitled American way of life.
23. Consequently, due to the text and application of the Act, the Act impermissibly and unconstitutionally retroactively altered the Defendant's contractual and service expectations. Defendant must continue to fulfill his statutory requirements and duties for life in order to continue to be eligible for and receive military retire/retained pay. This amounts to a violation of the Defendant's substantive due process protections under the Fifth and Fourteenth Amendments to the United States Constitution, in the form of deprivation of property without due process of law.
24. By virtue of various provisions of the Act, Defendant is afforded inadequate procedural protections insofar as he may be deprived of his property (in the form of retainer/retirement pay) without proper jurisdiction being exercised over him by this court, without proper notice and opportunity to be heard by this court, and without due diligence as to the Propriety or authenticity of state court divorce decrees or property settlements.
25. These deficiencies constitute a deprivation of Defendant's property without the due process of law afforded by the Fifth and Fourteenth Amendments to the United States Constitution.
26. Insofar as the Act was legislated by Congress pursuant to its powers to govern and regulate the land and naval forces and to allow for the full faith and credit of state court judgments and decrees, such legislation must operate uniformly within the United States, and must not give rise to disparate treatment of this Defendant by its provisions dependent on the vagaries of state law.
27. As specifically demonstrated by numerous motions filed against this Defendant from the opposing party, the Act produces non-uniform results when implemented in state law for many material provisions, including, inter alia, excessive disbursements to former spouse of Defendant's disposable retention/retirement pay, improper treatment and allocation of Defendant's disability benefits, incorrect determinations of Defendant's time and status as having vested retention/retirement pay. Defendant is thus requesting dismissal of the awarding of his military retired/retainer pay to his former spouse due to the Act's deprivation of Defendant's property without the due process of law afforded by the Fifth and Fourteenth Amendments to the United States Constitution, pursuant to the Supremacy Clause of Article VI of the federal Constitution.
28. The Act, enacts unfavorable and discriminatory treatment of the retention/retired pay of Defendant, as distinct from other groups of former federal government employees; that the Plaintiff is entitled to a higher degree of income and property protection as would be accorded in relation to the former spouse of other classes of federal government employees; and that the Plaintiff receives more favorable treatment in the collection of retired pay than the Defendant himself because the Plaintiff is not subject to the same conditions and obligations as the Defendant is required to observe (including availability for recall to service and comportment with the Uniform Code of Military Justice (UCMJ)) if the Defendant is to continue to collect retirement pay.
29. The statutory classification irrationally and arbitrary, is not presently related to a legitimate state or governmental interest, and thus the Act constitutes a denial of Defendant's entitlement to equal protection of the laws, afforded by the Fifth and Fourteenth Amendments to the United States Constitution, and afforded to Defendant by the Constitutional provisions concerning the regulation and governance of land and naval forces.
30. This Court has the authority to amend the consent judgment of divorce pursuant to MCR 2.612(c)(1)(d)&(f).
WHEREFORE, Defendant respectfully request that this Honorable Court grant his motion for reconsideration, and to amend this court's consent judgment by dismissing, striking or removing the awarding of his military retired/retainer pay to Plaintiff, in any manner. And, based on this court's 30 November 2004 Opinion and Order, request that this Honorable Court grant an Order to amend the consent judgment to dismiss the awarding of his military VA disability pay to Plaintiff, in any manner.
If the court approves and dismisses the awarding of Defendant's military retainer/retire pay and VA pay to Plaintiff, in any form, and alimony is not awarded to Plaintiff, as a goodwill gesture, Defendant will agree to continue to pay Plaintiff a portion of his retainer/retire pay, once payments are stopped by DFAS, in the form of an allotment from his retainer/retire pay of $437.00 a month, to be reduced 20% per child as they come off child support. In addition, Defendant will agree not to recoup lost funds from his military retainer/retire pay or VA pay.
James T. North
Harrison Township, MI 48045
Dated: February 14, 2005
MSgt James T.
U.S. Marines, Retained
Fleet Marine Corps Reserve
Category II, Deployable
From: Ofc. A. Sanborn [mailto:SenASanborn@senate.michigan.gov]
Sent: Thursday, October 20, 2005 9:59 AM
To: North, Jim
Subject: RE: Disabled Veterans Issue
Dear MSgt North:
Thank you for following up with my office and providing information about specific cases in which Veteran's Disability Benefits have been improperly treated in divorce proceedings.
Having reviewed the documents that you have provided to my office, it is clear that this issue is affecting individuals throughout the country. While the separation of powers prevents the Legislature from forcing the courts to rule in a specific way, there may yet be some recourse to this situation. In your e-mail you mentioned that a Congressional review of this matter may be in order and as this is an issue concerning the application of federal law in states throughout the nation. I believe that at the very least, this should be brought to the attention of your elected representatives at the federal level. As I represent you in the State Legislature, this is beyond my purview, but if you have not already done so, you may want to share your thoughts and information with Congresswoman Candice Miller. Like me, she appreciates hearing from her constituents on all issues that are of concern to them. You can visit the House of Representatives' website at http://www.house.gov/writerep/ to leave her an e-mail. The federal government, like that of the state, relies on a system of separated powers. While this may limit the allowable action, it remains important that this unfortunate situation be brought to the attention of your elected representatives at the federal level.
Once again, thank you for following up with my office in regard to this subject. If I can be of any further service on state issues, please do not hesitate to call upon me.
Jim" <Jim.North@cambridge-na.com> 10/14/05 12:34 PM >>>
Dear Mr. Sanborn,
I was just thinking about your email again... At least you didn't blow me away with dribble.
What you say is true about the separation of powers and that there are unjust rulings. The problem that we veterans have is that the courts will lay a debt upon the military member that is so great that he/she will not have the resources to fight a decision above the state court level.
If you want a case cited, well there are many that I am aware of. The most notorious is where it is actually stated in the divorce decree that the member will pay 32.7% of his VA Disability pay out of pocket to his former spouse and because it is tax exempt to him, it will also be tax exempt to her. This is not hearsay because I have seen a copy of that decree. Then there is the State of Florida, which is anti-military when it comes to a divorce. What they will do is award periodic alimony to the ex in case her portion goes down due to a VA Disability increase. So no matter what happens the member is still paying disability pay to the former spouse, only they call it alimony.
There are literally hundreds maybe thousands of cases where this is being done all over the country. What Congress should do is order the Department of Justice to investigate what has been happening. If it ever came to light how the lawyers are twisting the law and pocketing big dollars and how judges are legislating from the bench and many are probably getting a kickback, and then disbar the lawyers and remove the judges from the bench, then maybe we would see justice served, but not before.
MSgt James T. North
U.S. Marines, Retained
Fleet Marine Corps Reserve
Category II, Deployable
From: Ofc. A. Sanborn [mailto:SenASanborn@senate.michigan.gov]
Sent: Friday, October 14, 2005 11:00 AM
To: North, Jim
Subject: Disabled Veterans Issue
Dear MSgt. North:
Thank you for contacting our office and sharing your concerns about the possibility of disabled veterans losing part of their benefits to divorce.
I appreciate the
information that you have provided to my office about this important issue.
Federal statute does appear to speak quite clearly on the subject of how veteran's
disability benefits should be treated by the courts during proceedings for a
dissolution of marriage and I would hope that the courts would rule accordingly.
Our system of
government rests firmly on the notion of the separation of powers, and as such the Legislature does not have the power or the right to force the courts to rule one way or another, even if it is clear that the court has erred in its judgment. Our judiciary is made up of more than a single court for a very important reason, which is that not all judgments will be correct at first, which is why we have Courts of Appeal at both the state and federal level.
Although the Legislature cannot force the judiciary to rule in a specific way, my colleagues and I remain an important resource for individuals who may have questions regarding this or other issues. While your e-mail did not highlight any specific cases of improper court rulings, I would advise you or any other individuals who have been affected by this type of ruling to contact their Legislator to inform them of what has happened and to have any questions you might have, answered.
Once again, thank you for the recent e-mail regarding veteran's disability benefits. If I can be of any further service on this or any other matter, please do not hesitate to contact my office.