Additional References and Legal Facts


Additional references and legal facts which will enlighten the reader as to why military retired/retainer pay is not nor has it ever been a community property asset.

1. October 6, 1945 (H.R. 3951) Public Law 190. Armed Forces Voluntary Recruitment Act of 1945. Purpose of Law -- To stimulate volunteer enlistments in the Regular Military and Naval Establishments of the United States. Sec 4. of this law states,  Whenever any enlisted man of the regulator Army shall have completed not less than twenty or more than twenty- nine years of active services, he may upon his own request , be transferred and retired shall receive, except with respect to periods of active duty he may be required to performed, until his death, annual pay. There is like status for officer personnel.

Note: This law clearly states that the military member is in a reserve status. That the military member will remain so until death. Thus the reason for retainer pay---Not Pension. It should also be noted that no such laws exist for the spouse.

Question; If a military retired member is recalled to active duty, will the court awarded property asset, that was awarded to the former spouse be stop? Or will the military member be required to pay the former spouse from the active duty pay? If the payment is stopped, will the military member be held in contempt of court?

2.The I.R.S. Code 26 C.F.R. S 31. 3401 (a)-1(b) (1) (ii) states that military retired pay is a Current Wage.

Question: How then can a state court classify military retired/retainer pay as a deferred income? Current wages are not a property asset, therefore courts seem to have changed the classification of military retired/retainer pay in order for the pay to appear as a property asset.

Note: State Courts do not require Former Spouses to pay taxes each month on the retired/retainer pay that they receive as a community property asset. Therefore the military member is being forced to pay federal taxes on income he never receives. The IRS has noted this problem and they have forced the Military Finance centers to send the former spouses a tax statement. That took 20 years to get this accomplished? What about the past 20 years, or is that just another freebie for the former spouse?

3. The United States Supreme Court decision-- McCarty vs McCarty 1981. There is a conflict between the terms of the federal military retirement statues and the community property right asserted by the appellee. The military retirement system confers no entitlement to retirement pay upon the retired members spouse, and does not embody even a limited community property concept.

Note: Some State Courts, with out Federal authority , were in fact taking military retired/retainer pay as a property years before the enactment of the Former Spouse Protection Act (P.L.97-252) in 1982. Thus the reason for the United States Supreme Court ruling on McCarty. Congress wrote Public Law 97-252 to over ruled the United States Supreme Court. Question: Did the Former Spouse Protection Act change any of the federal laws and/or military regulations which govern the military members required obligation in ordered to receive military retired/retainer pay? The answer to this question is no! The Former Spouse Act has allowed state courts to transfer military funds that are authorized and appropriated for National Defense purposes to social, non- defense purposes for which there is no established earned or contractual basis with the United States Government. I believe one could call this Fraud ! No other occupation in the United States is required by Federal Law , except the military, to have retainer wages classified as a property asset to a former spouse for life, why?

4. United States vs Tyler, 105 U.S. 244 (1882). The Tyler court characterized such pay as Compensation..which continued at a reduced rate.

So where did the words deferred income and pension come from? I can only assume that it was and assumption made my some state attorney. The wording pension can not be found in federal law, which govern military retired pay.

5. Reference 26 USC 31.3402, Retired military personnel are considered employees or members of the service they retired from . 26 U.S.C 31.3401 (a)-1 (b) (1) (ii) provides that retired Pay constitutes wages and as such is therefore subject to withholding and reporting as are other wages. While 26 U.S.C. 3405 (a) (2) governs pensions and annuities. Retired military pay is neither a pension or an annuity under current I.R.S. regulations.

Question: Military members are the only class of U.S. citizens which are required State Courts to pay retainer wages, as a property asset, to a former spouse for life , why ? It should also be noted that many of the former spouse have remarried.

Note: The property asset award doesn1t stop upon the remarriage of the former spouse, as due other remarriages, why?

6. The Department of the Air Force Accounting and Finance Center, on May 19, 1986 notified a military retired Air Force Officer that he owned the Federal Government $3,161.63. The letter stated that he was subject to the Dual Compensation Law , codified in title 5, United States Code (U.S.C.) section 5532. This retired military officer was required by federal law to pay back $3,161.63 of his military retired pay for teaching math to Navajo Indians. The job was considered federal employment, since his contract was with the Bureau of Indian Affairs, Dept. of the Interior.

Question: Would a former spouse who receives military retired/retainer pay as a community property asset be required to return funds for teaching Navajo Indians math? This is just another example of discrimination. Reference Lt. Col. Oliver North who lost his Military retired/retainer pay for being convicted of a crime . It took and act of Congress to restore his retired pay. If congress had not acted, then are we to assume that Col. North wife would have also lost her property rights to his pay?

7. Air Force Times Dated Sept 1, 1986.  Retired Pay Halted during Saudi work.  Maj. Stephen H. Hartnett (USMC Ret ), who accepted a job in May , 1985, with a Delaware- Base firm of Frank E. Basil Inc,. had his military retired pay stopped. The U.S. Comptroller General ruled he was under the supervision and control of the Saudi Government. Long standing legal rulings have placed retired military personnel in this category, since they are subject to recall to active duty.

Question: Will a former spouse of a military member lose their property rights to the military retired pay if they were to become employed by a foreign government?

8. Air Force Times dated March 5, 1984, Retiree Renouncing Citizenship. SFC Charles J. O1 Fearna retired from the Army in 1965, after 22 years of military service. He moved to Australia in 1966 and has lived there ever since. In April , 1981, O1 Fearna become a naturalized citizen of Australia, apparently without realizing what input it would have on his military retired pay. The Comp. Gen. held in previous decisions that military retirees lose their right to retired pay when they lose their citizenship. The Comp. Gen. stated  all members on the retired list of the regular Army remain a part of that force and relied upon as a dependable source of manpower. The finance center told O1 Fearna that his retired pay ended when he forfeited his citizenship. They stopped his retired pay immediately and advised him to refund retired pay he received since April, 1988.

Question: Does a former spouse lose their so call property asset rights if they loose American Citizenship? Millions of dollars of military retired/retainer pay is being paid to Foreign National who divorce military members. Many have returned to their Home Countries.

9. Air Force Times July 11, 1983, System is not old age pension, by Caspar Weinberger, Secretary of Defense.  These dedicated professionals routinely work long and irregular hours with no overtime pay. They face exposure to risk, an inability to control living or working conditions, forced family separation, and periodic relocations. At the same time, they are obliged to accept a highly disciplined and controlled life, unlike any other sector of the American population. Military members serve in a system that provides no vesting in the retirement system, and in fact, only 12% of those who enter active service ever reach retirement eligibility. The other 88% receive no retired pay at all.

Question: Does the hardships of military life being on divorce ? If so, then who created this hardship? Has no fault state courts taken these hardships into account when they awarded 50 % of a military members retired/retainer pay as a property asset for life to the former spouse?

Note: The spouse of a military member could leave the military member to all the hardships of military life and collect half the military retired/retainer pay as a property asset for life, regardless if the former spouse were to remarry six times!

10.Sergeants magazine, December 1985, Pennsylvania retiree fights state law.  Military retirees in Pennsylvania are fighting a state law enacted in 1980. When military retirees are laid off from civilian jobs, the law reduces unemployment compensation by the amount of military pension received.

Question: since when did a military retiree receiver a Pension? Will a former spouse have their awarded military retainer pay reduced by the amount of unemployment compensation they receive? Is this a clear case of discrimination being ignore by the politicians ?

11.Costello vs. United States, Constitutional law 278.6 (1),   Military retirement pay is not deferred compensation for past services but , like active duty pay, is pay for continuing military service and as such, can be prospectively altered without offending due process. U.S. C. A. Cont . Amend. 5.2

Question: Does this constitutional ruling still apply to military retired pay? If not, then why not?

12. Lemly vs. United States (1948 )... Retirement pay is a continuation of active pay on a reduced basis. Even though an officer is retired from active duty and is receiving retirement pay, he is still subject to call to active duty as long as his physical condition will permit. He is still an officer in the services of his country even though on the retired list.

Question: Is this still true? If it is, then has not the military occupation become the only occupation which pay a retainer pay as a community property asset ?

13.Washington State law , R.C.W. 26.16.140 states,  When a husband and wife are living separate and apart, any money they make is the separate property of each, that it is not community property.

Question: If military retired pay is in fact earned daily, paid monthly, and is not based on a deferred income, nor is it pay for past services rendered, then how can it be considered a property asset in Washington State?

Question: How could a state Judge take military retired/retainer pay as a property asset prior to the Former Spouse Act, (P.L.97-252)?

14. Washington State law, R. C. W. 6.16.030 written in 1890, states,  Pension money received from the United States Government is exempt from execution, attachment or seizure by or under any legal process whatever.

Question: If military retired pay is being classified as a pension, then under what law are they using to take the pay in Washington State? I can only assume it's case law ! But wait, doesn't legislative law over rule case law ?

15. Under Social Security and Railroad retirement, there is a statutory benefit for divorced spouses who have been married to the employee for at least 10 years. Payment of this benefit does not reduced the retries benefit. Retiree retains full retired pay. Includes remarriage clause, terminating retired pay upon remarriage.

Question: Why was the remarriage clause left out of the Former Spouse Act? Again, the military member seems to have been discriminated against, why?

16. Reference the National Association of Retired Federal Employees (NARFE) contended that a 3.1 percent COLA become a vested entitlement on December 1, 1985, and therefore, its cancellation by the Gramm-Rudman-Hollings ( The Balanced Budget and Emergency Deficit Control Act of 1985 ) on December 12, 1985, made it illegal. A federal three - judge panel ruled that retirees have no property rights to benefits not yet paid. This was , essentially , upheld by the U.S. Supreme Court by its refusal to hear the appeal.

Question: Since military retirees have no property rights to military retired pay, then why does a former spouse gain a property asset right ?

17. The U.S. Supreme Court in the Buchanan v. Alexander, 45 U.S.20 (1846), Ruled that money owed by the United States to the individual service member be longs to the Treasure until it is paid to that individual. Essentially, the Supreme Court held that courts cannot tell a federal disbursing official what to do since it would defeat the purpose for which congress appropriated the money. If the specific reason Congress appropriated funds for the retired military member after 20 years of active duty is not as compensation for continuing military obligations, what, then, is it reason ? What law provides other reasons? The Former Spouse Act provides that a former spouse may receive military retirement pay directly from a military finance center, without sending the money to the military member first.

Question: Doesn't this circumvent this ruling made by the United States Supreme Court ?

In Summary: If Congress intended to characterize military retired pay as property, and then allow the states to take it from the military service member and give it to the member1s former spouse, without just compensation, then congress has violated the due process clauses of the United States Constitution. Some have concluded that Congress, enacted the Former Spouse Act to recognize the contributions and sacrifices of the military spouse. Those contributions and sacrifices have helped create and maintain an effective military force. Therefore, the Former Spouse Act , by allowing military retired pay to be paid the former spouse, benefits the military and constitutes a public use. Then should not the Government pay the former spouse for the services that they rendered?

It's time that the hearings on Public Law 97-252 (Former Spouse Protection Act ) begin. Who in their right mind would spend 20 and or more years in the military, only to have their retired pay reduced by 50%. A new violation of the military members civil and constitutional rights occur each month when the involuntary diversion of funds is enforced by the federal government. Without the required legal intervention our military members will remain in perpetual servitude to a former spouse and their present spouses until they die.

Lewis E. Pugh Jr. CMSgt (Ret) U.S.A.F. 7055 76th St. Ct. East Puyallup Wa 98371

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