Practice Notes: Hate the Sin, Not the Sinner’s Family

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Practice Notes

Hate the Sin, Not the Sinner’s Family

Benefits Available to Victim Family Members of Retirement-Eligible Soldiers

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By Major Carling M. Dunham

You’re retired—goodbye tension, hello pension!1

Some crimes stay hidden for decades and then surface near the end of a Soldier’s career.2 Crimes committed at the height of a Soldier’s professional development juxtapose sharply with the level of personal ethics expected at that level of leadership.3 In many cases, good order and discipline demands accountability and punishment for these Soldiers and their crimes. Frequently, families are affected by the fallout for the Soldier’s crimes. What then becomes of the Soldier’s spouse and dependent children, some of whom have foregone their own personal careers and communities for the siren call of “the needs of the Army”?4

Fortunately, the Uniformed Services Former Spouses’ Protection Act (USFSPA) addresses the situation where a retirement-eligible Soldier has been court-martialed for abuse of his spouse or children.5 This statute provides that a qualifying victim spouse or dependent child is entitled to a portion of what would have been the Soldier’s retirement benefits had the Soldier not been court-martialed.6 This article identifies the benefits of a military retirement and the unique stressors for military families; it also serves as an introduction to the USFSPA provision for victims of abuse of retirement-eligible Soldiers.7 With a current emphasis on providing legal support to victims of domestic violence,8 knowledge of the provision’s existence and eligibility requirements is critical for military justice practitioners to advise their commanders; for defense counsel to advise their Soldier-clients; and for legal assistance attorneys to advise their family member clients.

Protection for victims of abuse under the USFSPA avoids the oft-cited conundrum of “punishing the family” for the misconduct of the Soldier—hating the sin, but not the sinner’s family.9 The situation is not uncommon: A high-ranking Soldier—either enlisted or officer—commits a crime which justifies trial by court-martial. For these serious offenses, a punitive discharge is an authorized punishment.10 If a Service member receives a punitive discharge, he is no longer eligible to retire from the military.11 A punitive discharge, then, cuts off the Soldier’s eligibility to receive retired pay and other retirement benefits.12 The termination of eligibility occurs at the military judge’s entry of judgment following the court-martial.13 The USFSPA seeks to put victim family members in the position they would have been had the abuse not occurred and had Soldier been able to retire.14

Military Retirement: A Unique Link Back to the Military for Both Soldiers and Family Members

The military’s retirement plan is one of the few retirement entitlements of its kind in both duration and amount, and “is one of the most important and arguably the most prized benefit of long-term military service.”15 In addition to receiving retirement pay, military retirees have access to the on-post commissary and exchange where they can buy groceries and other commercial items for a reduced cost.16 Military retirees also have access to TRICARE insurance for an annual fee that is typically much lower than the premiums for civilian insurance plans.17 Military retirees’ families also remain eligible for access to military bases, exchanges, commissaries, and insurance plans.

In many ways, life after military retirement retains more characteristics of the previous work life than any civilian job and subsequent retirement. This link between Soldier and retirement is deliberate: “‘Retirement,’ in the context of the military, is something of a misnomer—retired pay, unlike a typical pension, is not simply compensation for past services, but also ‘reduced compensation for reduced current services.’”18 This invisible link between retirement and the potential for recalled service also affects military families.19 Military spouses, then, remain tied to the military in a way that civilian spouses do not.

Protection for victims of abuse under the USFSPA avoids the oft-cited conundrum of “punishing the family”

Stressors of Military Life

Due to the transient nature of military life, military spouses are in uniquely vulnerable positions—both financially and socially. “Indeed, military spouses may be the quintessential ‘trailing spouse,’ their situation made even more challenging because their families encounter location assignments, rather than location choices, and the result may not be conducive to employment.”20 Despite military spouses statistically being more educated than other civilians of working age, they are “far less likely to participate in the labor market than the general working age population, [fifty-seven] percent compared to [seventy-six] percent in 2016.”21 Some of this discrepancy is likely explained by the intangible aspect of potential employer hesitancy to hire military spouses who have to move frequently and, occasionally, on very short notice.22

In the most recent Blue Star Families annual survey, employment is the most common concern for military spouses, even topping the concern for their Soldier’s time away from family.23 In addition to the strain of frequent geographic moves, deployments, and providing childcare, military spouses who are unemployed most commonly cite the demands of the Soldier’s job as a barrier to seeking employment.24 Of those military spouses who are employed, seventy-seven percent “experience some degree of underemployment.”25 Underemployed military spouses earn approximately twenty-seven percent less income than their civilian peers.26 Over a twenty-year military career, this disparity can result in approximately $190,000 in lost income.27 This amount does not account for loss of income for those spouses who are unemployed.28 This unemployment and underemployment results in military families struggling to make ends meet at twice the rate of civilian families.29

Adding to financial insecurity, military spouses may struggle to develop roots in a community. Almost seventy percent of military families live off the installation.30 Forty percent of military families “do not feel a sense of belonging to their local civilian community.”31 A sense of connection to community develops over time, but frequent military moves often disrupt that process at each duty location.32 Conversely, military spouses’ identities may be wrapped up in their spouse’s service. For example, one Navy pilot’s wife recalls attending spouses’ meetings where she was “forced to wear a shirt with ‘Mrs.’ and [her] husband’s call sign on it.”33 Both extremes—isolation and dependence—can be common consequences of military spouse life.

Financial insecurity coupled with tenuous community ties can create an environment ripe for abuse.34 Military service is one of the top barriers to leaving an abusive relationship.35 Domestic violence in the military is underreported due to myriad concerns about the spouse’s career, feelings of isolation, and financial dependence on the abuser.36 Adding to the problem is that the occurrence of violent crimes is increasing, with the trauma of service in a wartime Army at least partially to blame.37

Legal assistance attorneys and military justice practitioners must be aware of the consequences associated with a military spouse reporting a domestic offense.38 Domestic violence and sexual violence committed by a Soldier can result in trial by court-martial. The authorized punishment for these crimes includes a punitive discharge.39 When a retirement-eligible Soldier is court-martialed and receives a punitive discharge, the family members doubly suffer—first from the abuse itself and then from the loss of retirement benefits after decades of following their spouse’s military service.

A specific provision within the USFSPA attempts to remedy this inequity. Generally, this provision seeks to put the victims of abuse in the same place they would have been had the abuse and subsequent punitive consequences not occurred “and the member had retired under normal circumstances.”40

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Eligibility and Payment under the “Victims of Abuse” Provision of USFSPA

To be eligible, a spouse must have been married to the Soldier for ten years or more, during which time the Soldier performed at least ten years of creditable service.41 The Soldier must be retirement-eligible.42 The spouse must also have been the victim of the abuse or the parent of the Soldier’s dependent child who was the victim of abuse.43 A dependent child is eligible for the retirement benefits if the other parent died as a result of the Soldier’s abuse.44

The USFSPA governs payment to spouses and dependent children who were victims of abuse by the Soldier.45 There are three authorized types of payments to spouses or children from what would have been the Soldier’s retirement pay: (1) a court order to pay the spouse a fixed amount from the Soldier’s disposable retirement pay; (2) a court order to pay the spouse a percentage of the Soldier’s disposable retirement pay; and (3) a court order to pay child support to the dependent child from the Soldier’s disposable retirement pay.46 Enforceable civilian court orders include “final decrees of divorce, dissolution, annulment, and legal separation, and court-ordered property settlements incident to such decrees.”47 Any court order must include the correct language and division of pay to be actionable by the Defense Finance and Accounting Service (DFAS).48

To receive payment, spouses must obtain a certification regarding the amount of retirement pay and then they must remain eligible.49 First, either the issuing court or the eligible spouse may request certification from the Secretary of the Army (or designee) of the amount of monthly retired pay the Soldier would have been entitled to had the Soldier’s eligibility for retirement pay not been terminated as a result of misconduct.50 This calculation will ignore any reductions in grade or forfeitures of pay adjudged at the court-martial.51 The certified amount will be deemed to be the disposable retired pay of the Soldier.52 The total amount of the disposable retired pay of a Soldier payable under all court orders may not exceed fifty percent of the disposable retired pay.53 Second, the spouse must remain eligible for payment. Payment under the court order will terminate if the Soldier dies, if the spouse dies, if the spouse remarries, by the terms of the court order itself, or if the court-martial sentence that terminated eligibility is set aside or mitigated to no longer include a punitive discharge.54

In addition to a portion of retirement payment, the spouse and dependent children are eligible to receive medical and dental care, exchange and commissary privileges, and any other benefits afforded to dependents of military retirees.55 This includes the right to the Survivor Benefit Plan.56 Even though eligibility under the USFSPA is terminated by the Soldier’s death, with concurrent eligibility under the Survivor Benefit Plan, the spouse is still put in the place they would have been absent the Soldier’s misconduct. Other benefits include the right to use Space-Available transportation and to use military discounts where offered.57

Conclusion

Both military justice practitioners and legal assistance attorneys must familiarize themselves with the USFSPA, particularly when the Soldier is retirement-eligible. The protections available to victims of abuse should be taken into consideration by a military justice practitioner when advising the commander or client on possible courses of action. Understanding that the USFPSA provides a safety net for victims of abuse of retirement-eligible Soldiers, the commander need not shy away from a court-martial of the Soldier when the underlying misconduct may warrant one. A defense counsel should be able to advise their Soldier-client on potential protections available to the Soldier’s family members. The legal assistance attorney should competently advise abuse victims on the available protections under the USFSPA and the steps needed to establish eligibility. The Army’s leadership stated that “[p]eople are our greatest strength, our most valuable asset, and our most important weapons system.”58 Knowledge and application of the USFSPA is a way for us to implement our leadership’s philosophy of taking care of people. TAL

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MAJ Dunham is an Associate Professor in the Administrative and Civil Law Department at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.

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Notes

1. 101 Retirement Quotes for Every Type of Retiree, Gifts, https://www.gifts.com/blog/retirement-quotes (last visited Sept. 15, 2020).

2. See Dan Lamothe, A Soldier Rose to Become a General. His Daughter Says He Abused Her for Years, Wash. Post (Dec. 16, 2018, 10:11 PM), https://www.washingtonpost.com/world/national-security/a-soldier-rose-to-become-a-general-his-daughter-says-he-abused-her-for-years/2018/12/16/965a976a-fd61-11e8-83c0-b06139e540e5_story.html (discussing how Major General Grazioplene’s alleged abuse of his daughter came to light decades after it occurred).

3. See Timothy Williams, General Charged with Sexual Misconduct, N.Y. Times (Sept. 27, 2012), https://www.nytimes.com/2012/09/28/us/decorated-general-charged-with-violations-of-military-law.html; Alan Blinder & Richard A. Oppel Jr., How a High-Profile Military Sexual Assault Case Foundered, N.Y. Times, (Mar. 12, 2014), https://www.nytimes.com/2014/03/13/us/how-a-military-sexual-assault-case-foundered.html (discussing how Brigadier General Sinclair’s alleged crimes started when he was already a colonel).

4. U.S. Dep’t of Army, Reg. 601-280, Army Retention Program para. C-1(b) (1 Apr. 2016).

5. 10 U.S.C. § 1408(h)(4); U.S. Dep’t of Def., 7000.14-R, DoD Financial Management Regulation vol. 7B, ch. 59 (Jan. 2019) [hereinafter DoD FMR]. This provision also applies to Soldiers who are involuntary separated from active duty due to a civilian criminal conviction. DoD FMR sec. 590304. See U.S. Dep’t of Army, Reg. 600-8-24, Officer Transfers and Discharges para. 2-14 (8 Feb. 2020) [hereinafter AR 600-8-24]; U.S. Dep’t of Army, Reg. 635-200, Active Duty Enlisted Separations para. 14-5 (19 Dec. 2016) [hereinafter AR 635-200]. For simplicity, this article will only refer to those Soldiers who were separated from the service by a court-martial.

6. 10 U.S.C. § 1408(h).

7. This article does not address benefits available to victims of abuse when the Solider is not retirement-eligible. For information on transitional compensation, see DoD FMR, supra note 5, ch. 60.

8. See Policy Memorandum 20-03, Headquarters, Office of the Judge Advocate Gen., U.S. Army, subject: Domestic Violence Victim Representation Program (19 June 2020) [hereinafter DV Policy Memo].

9. The saying of “hate the sin, love the sinner” is widely attributed to a line in one of Saint Augustine’s letters: “[W]ith due love for the persons and hatred of the sin.” 1 Nicene and Post-Nicene Fathers (Philip Schaff ed., Hendrickson Pub. 1996) (1887).

10. Manual for Courts-Martial, United States, app. 12 (2019) [hereinafter MCM].

11. See Loeh v. United States, 73 Fed. Cl. 327, 329 (Fed. Cl. 2006) (“Although the statutes and rules governing military retirements are not the models of clarity, a careful review of the applicable statutes reveals that a military officer punitively discharged from the Navy loses his eligibility for retirement.”). See AR 600-8-24, supra note 5, para. 6-12(c)(2) (a Regular Army, Army Reserve, or National Guard “commissioned officer with [twenty] years [of Active Federal Service], of which [ten] years is active commissioned service, may upon request and the approval of [the Secretary of the Army] be retired); AR 635-200, supra note 5, para 12-4(a) (“A Soldier who has completed [twenty] but less than [thirty] years of [Active Federal Service] may be retired at his or her request.”). By contrast, if a board recommends separation, a Soldier who has completed twenty years or more of qualifying active service has the opportunity to apply for retirement. See AR 635-200, supra note 5, para. 2-6(b). However, applying for retirement under these conditions does not guarantee approval of the retirement. Id.

12. McCarty v. McCarty, 453 U.S. 210, 211 (1981); 10 U.S.C. § 12740 (a person who is convicted under the Uniform Code of Military Justice and who is “separated pursuant to a sentence of a court-martial with a dishonorable discharge, a bad conduct discharge, or (in the case of an officer) a dismissal is not eligible for retired pay.”); DoD FMR, supra note 5, sec. 590303; Retired Pay, Mil. Comp., https://militarypay.defense.gov/Pay/Retirement.aspx (last visited Sept. 15, 2020) (describes types of retirement pay and how each is calculated). See, e.g., United States v. Becker, 46 M.J. 141, 144 (C.A.A.F. 1997) (“[T]he value of retired pay should be recognized as the single most important consideration in determining whether to adjudge a punitive discharge.”); United States v. Boyd, 55 M.J. 217, 221 (C.A.A.F. 2001) (after this case, the Court of Appeals for the Armed Forces required all military judges “to instruct on the impact of a punitive discharge on retirement benefits.”).

13. DoD FMR, supra note 5, sec. 590303. See UCMJ art. 60c (2016).

14. DoD FMR, supra note 5, sec. 590101.

15. Paul C. Taylor & Laura J. Taylor, Evaluating the Financial Cost of an Involuntary Military Separation, 14 J. Legal Econ. 1, 1 (2007).

16. Id. at 11-12.

17. Id. at 12; Retirees’ Use of Civilian Coverage, TRICARE (Oct. 2007), https://tricare.mil/survey/hcsurvey/issue-briefs/issuebriefQ1FY08.pdf; Health Coverage Options for Military Retirees, Nat’l Def. Rsch. Inst. & RAND Health (2007), https://www.rand.org/pubs/research_briefs/RB9236/index1.html.

18. Loeh v. United States, 53 Fed. Cl. 2, 5 (Fed. Cl. 2002) (quoting McCarty v. McCarty, 453 U.S. 210, 221-22 (1981)).

19. See United States v. Hennis, 75 M.J. 796, 802, 844 (A. Ct. Crim. App. 2016), aff’d United States v. Hennis, 79 M.J. 370 (C.A.A.F. 2020) (appellant was a young, single Soldier at the time he committed the murders of Kathryn Eastburn and two of her young daughters. However, when the Army recalled appellant to prosecute him twenty years later, he had a family. During the sentencing case, the defense admitted multiple photos of the appellant and his family members, some of which included appellant opening presents with his children in front of a Christmas tree. Appellant was sentenced to death.).

20. Council of Econ. Advisors, Military Spouses in the Labor Market 1 (May 2018), https://www.whitehouse.gov/wp-content/uploads/2018/05/Military-Spouses-in-the-Labor-Market.pdf.

21. Id. at 2. Ninety percent of military spouses are women, who, in addition to the other demands of military life and employment, face the “motherhood penalty.” Julie Bogen, The Dismal Career Opportunities for Military Spouses, Atlantic (Apr. 17, 2019, 4:06 PM), https://www.theatlantic.com/family/archive/2019/03/majority-military-spouses-are-underemployed/585586/.

22. Bogen, supra note 21.

23. Dep’t of Applied Rsch., Blue Star Families & Inst. for Veterans & Mil. Fams., Syracuse Univ., 2019 Military Family Lifestyle Survey 6, https://bluestarfam.org/wp-content/uploads/2020/03/BSF-2019-Survey-Comprehensive-Report-Digital-rev200305.pdf (last visited Sept. 15, 2020) [hereinafter 2019 Survey].

24. Id. at 8.

25. Id.

26. Council of Econ. Advisors, supra note 20, at 3.

27. Id.

28. Id.

29. Bogen, supra note 21.

30. 2019 Survey, supra note 23, at 7.

31. Id. at 9.

32. Id. at 29.

33. Elissa Strauss, “It’s All Me,” Slate (July 18, 2016, 3:07 PM), https://slate.com/human-interest/2016/07/the-lonely-and-high-pressure-life-of-a-military-wife.html.

34. See Sarah M. Buel, Fifty Obstacles to Leaving, a.k.a., Why Abuse Victims Stay, Colo. Law., Oct. 1999, at 19, 20.

35. Id. at 24.

36. Domestic Violence in the Military, Domestic Shelters (Oct. 1, 2014), https://www.domesticshelters.org/articles/escaping-violence/domestic-violence-in-the-military.

37. Mary Slosson, Violent Sex Crimes by U.S. Army Soldiers Rise: Report, Reuters (Jan. 19 2020, 7:25 PM), https://www.reuters.com/article/us-army-health-report/violent-sex-crimes-by-u-s-army-soldiers-rise-report-idUSTRE80J01C20120120.

38. See DV Policy Memo, supra note 8.

39. MCM, supra note 10, app. 12.

40.10 U.S.C. § 1408(h); DoD FMR, supra note 5, sec. 590101.

41. DoD FMR, supra note 5, sec. 590301(A). As opposed to the so-called 20/20/20 spouse (Soldier has served 20 years; the Soldier and spouse have been married 20 years; and there have been 20 years of overlapping service and marriage), a spouse under this chapter need only be 20/10/10 (Solider has served 20 years; the Soldier and spouse have been married 10 years; and there have been 10 years of overlapping service and marriage). Id.

42. Id.

43. Id. sec. 590301(A)(1)–(2).

44. Id. sec. 590301(B).

45. 10 U.S.C. § ١٤٠٨(h).

46. DoD FMR, supra note 5, sec. 590302.

47. Def. Fin. & Acct. Serv., https://www.dfas.mil/Garnishment/usfspa/legal/ (Mar. 19, 2019).

48. See DoD FMR, supra note 5, ch. 29, fig. 29-2 (July 2019) (listing example language for court orders). A court order containing faulty language is the top reason for rejected claims by DFAS. How to Divide Military Retired Pay, Military (July 9, 2015), https://www.military.com/paycheck-chronicles/2015/07/09/how-to-divide-military-retired-pay.

49.DoD FMR, supra note 5, §§ 590501-590502.

50. 10 U.S.C. § 1408(h)(4); DoD FMR, supra note 5, sec. 590501(A).

51. DoD FMR, supra note 5, sec. 590501(B).

52. Id. sec. 590501(C).

53. 10 U.S.C. § 1408(e)(1); DoD FMR, supra note 5, sec. 590501(C). The court order can also specify that whenever retirement pay is increased—for example, as a cost of living adjustment—the amount payable by the court order would be accordingly increased. See 10 U.S.C. § 1408(h)(4). See also DoD FMR, supra note 5, sec. 590501(D).

54. DoD FMR, supra note 5, sec. 590502. Two notes about the eligibility involving dependent children: First, payments made to an eligible spouse due to being the parent of a dependent child who was the victim of abuse will not cease solely because the child is no longer considered a dependent child. “Payment requires only that the child was dependent at the time of the abuse, and not necessarily at the time of payment.” Id. sec. 590501(G). Second, if a court order provides for payment of child support from the Soldier’s disposable retired pay, then payment of the amount must be made to the dependent child and payments begin on the service of the court order. Id. sec. 590302. Neither the statute nor the FMR address termination of eligibility when eligibility is based on the parent being deceased as a result of the abuse. It is the author’s belief that the same rules would apply—death of dependent child, death of Soldier, or terms of court order itself. However, the issue is not addressed and, therefore, is outside the scope of this article.

55. Id. sec. 590503.

56.Id. See 10 U.S.C. § 1448. In general, “[m]ilitary retirement pay stops upon the death of the retiree! The Survivor Benefit Plan (SBP) allows a retiree to ensure, after death, a continuous lifetime annuity for their dependents.” Survivor Benefit Plan Overview, Mil. Comp., https://militarypay.defense.gov/Benefits/Survivor-Benefit-Program/Overview/ (last visited Nov. 10, 2020). The SBP is most akin to a life insurance policy, as the Soldier pays premiums and it “protects survivors against a loss of financial security upon the death of a retired member.” Id.

57. See Kate Horrell, 7 Things Every Spouse Should Know About Retirement Benefits, MilSpouseFest, https://milspousefest.com/military-spouse-retirement-benefits/ (last visited Sept. 15, 2020). Space-Available, commonly referred to as “Space-A,” travel is traveling on military, rather than civilian, flights for little to no cost. See Plan Your Trip With Space-A Travel, Mil. OneSource (Apr. 16, 2020, 7:31 PM), https://www.militaryonesource.mil/recreation-travel-shopping/travel/travel-planning/plan-your-trip-with-space-a-travel. For more information on specific eligibility requirements, see U.S. Dep’t of Def., Dir. 4515.13, Air Transportation Eligibility (22 Jan. 2016) (C5, 23 Oct. 2020).

58. Sergeant Major of the Army Michael A. Grinston et al., Action Plan to Prioritize People and Teams, U.S. Army (13 Oct. 2020), https://www.army.mil/article/239837/action_plan_to_prioritize_people_and_teams.