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Help Protect our Disabled Veterans from Unlawful Attachment of Benefits

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The Honorable Eric K. Shinseki
Secretary of Veterans Affairs
810 Vermont Avenue NW
Washington, DC, 20420

The Honorable Mark Greenberg
Deputy Assistant Secretary for Policy
Administration for Children and Families
U.S. Department of Health and Human Services
901 D St. SW
Washington, DC, 20447

Dear Secretary Shinseki and Deputy Assistant Secretary Greenberg:
I am writing in regards to a failure within our Executive Branch directly involving the ACF and USDVA. The last time this failure occurred the Veterans Administration was eliminated. As the founding reason the USDVA was created I am sure you are familiar with this subject. The subject is the use of VA Compensation or any payments under Title 38 being used for support awards in our state courts.
A simple well worded policy provided by both your agencies and released through the ACF to all states would put an end to this problem. A routine function your agencies do would perform the most invaluable service for our veterans and support for their families.
In 1987 the Supreme Court of the United States ruled on the case Rose v. Rose. The failure to perform apportionments by the previous Veterans Administration was identified. The court ruled the existing language of 38 USC § 211 did not provide sole authority, did not include state courts and only included eligability questions.
"The decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise.."
This failure brought disgrace to Congress and to the Executive Branch. Congress had just declared federal authority over the establishment and enforcement of child support through the enactment of the Child Support Enforment Act and creation of the ACF.
From the disgrace and failures of the Veterans Administration for not performing apportionments, Congress responded with extreme magnitude in comparison to previous cases. After Hisquierdo v. Hisquierdo and McCarty v. McCarty only a brief addition to the USC was needed. For veterans and their families Congress responded with the Department of Veteran Affairs Act of 1988 and a complete rewrite of title 38.
Congress addressed the issue of exclusive and sole authority over payments. The language of the new § 511 is inclusive of all courts not just federal. It precludes the states from making any decisions which affect these benefits not just the eligability process. It obligates the USDVA to assert this authority and perform their duties. It obligates the USDVA to act when this authority is disregarded or challenged.
“The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. Subject to subsection (b), the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.”
The US Congress also responded to the dissenting and self proclaimed “distained” opinion of Justice O’Conner. In her opinion of the previously § 3101, the law should not have been written so iron clad to provide the level of protection determined. The response of Congress was to not make one change to the wording when renumbered to § 5301. This wording has gone unchanged for over 20 years. In not so subtle words Congress voiced their distain for the opinion as well.
Today this problem has returned. State courts are again ignoring the federal authority and using Title 38 payments in the calculation of support awards. This issue is rooted in the creation of both the ACF and USDVA. Because policy has not been provided to the states our veterans and their dependents are suffering. The reports on veteran suicide by mulitple state Departments of Health and Human Services describe the rates as epidemic. Divorce and break down of the family is the constant variable in all of these cases.
Providing a policy excluding Title 38 funds from ANY use other than the USDVA process of Apportionment is gravely needed. Providing policy through the ACF to their state agencies is one of the most routine functions of the ACF. In turn this policy is immediately received and provided infomationally to all branches of the state government. This ensures the quickest compliance with the least amount of discord. In closing, I leave you with the quote from George Santayana.
"Those who cannot remember the past are condemned to repeat it."


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