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September 30, 2010

ABA President Zack Applauds Passage of Civil Legal Protections for Servicemembers

All Americans deserve access to justice in our courts. This is especially important for the military men and women who sacrifice so much for our country. Congress was right to clarify their protections under the Servicemembers Civil Relief Act.

It is unacceptable that someone fighting in the Afghan desert should have to worry that his house will be foreclosed upon, or car repossessed. The steps taken under the Veterans’ Insurance and Health Care Improvements Act of 2009 will ensure service members and the Justice Department will have new options to pursue those who wronged them.

The _ has a long and proud history of fighting for the legal rights of military servicemembers, and we celebrate this achievement.

With nearly 400,000 members, the _ is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

Learn More About:  Civil RightsMilitary LawZack, Stephen N.

Comments (9)

  • we hark rawal
    8:55 AM October 6, 2010

    we appreciate ABA,because it is helping to NEPALES bar too,in ROL.

  • Mike Gort
    9:28 AM October 13, 2010

    And kudos to the ABA Military Pro Bono Project.

  • george
    2:46 PM October 26, 2010

    Glad the ABA did a very nice press release.

    Glad to know about the long history of fighting for legal rights of service members.

    Now that that’s out of the way, perhaps the ABA can focus on putting some substantive resources online for lawyers seeking to deploy some of those new legal protections?…

    PS. Linking in one press release to another press release isn’t what I had in mind…

  • Frank USN
    4:58 PM November 8, 2010

    The ABA still has a long way to go in supporting military members fight for equitable treatment in divorce court. ABA should take a long hard look at repeal of the USFSPA. This is the only Federal divorce law that specifically targets military members. No other profession has a law that discriminates against a class of citizens. CIA, FSA and Social security terminate payments to a remarried former spouse. Why not service members? This is just an example of many of the injustices against Americas warriors.

  • Another USFSPA Casualty
    7:55 PM November 9, 2010

    I’m in total agreement with the “Frank USN” comment – by allowing the USFSPA to remain an egregious and unconstitutional law, it also allows the unnecessary over-rewarding of those who support the former spouse against the military retiree. Basically, “put your money where your mouth is” and help take the USFSPA permanently off the books !

  • Catherine L. Payton
    11:10 PM November 9, 2010

    There is also a large group of feminist out there (including myself) who do NOT support USFSPA. We see the absurdness of this “lifetime protection” in the 21st century.

  • FireChuNow
    11:13 PM November 9, 2010

    If Congress had of provided and funded additional “protection” for “penny-less” military officer spouses, (Texas only) like the USSC decision of McCarty v. McCarty, 1981 decision suggested, Congress would have built in much stricter qualifications and limitations similar to the abused spouse clause which terminates DOD payments to former spouses upon remarriage. Since a liberal Congress in an election year determined all retired veterans were “at fault” in a “no-fault” world, the burden of financing these additional protections were placed on the backs of retired vets. With divorced veterans burdened with additional unnecessary “protection”, there are no limitations, no oversight, no due process and no equal treatment of law for retired vets. Military spouses have the same protections afforded any other non-military spouse. USFSPA payments continue for life without any regard to fault, need or wealth. Former spouse who give up their US citizenship continue to receive defense appropriated USFSPA payments overseas. On the other hand a retired veteran that gives up his/her US citizenship is no longer available for recall to active duty therefore they are no longer eligible for their monthly retainer pay. My suggestion would be to terminate USFSPA payments to former spouse after the number of months they have received USFSPA payments, equals the number of months of concurrently marriage and the veteran’s military service. To support a former spouse for life discriminates against retired veterans as most civilians only pay alimony for 5 years. USFSPA payments are not awarded for services rendered it is a transfer payment similar to welfare with no qualifying other than 1 day of concurrent marriage and the veteran’s contractual military service.

  • Major Patrick Swint, MS, PA-C
    11:22 PM January 25, 2011

    As a recently discharged Disabled Veteran,
    I can say that the Service member Civil Relief Act (SCRA) FAILED me as a deployed Military Reservist/business owner.

    I served on military active duty from September 2006 to December 2008.

    I served as a medical officer, specialized in orthopedic surgery. A critical skill set in the war time military. I volunteered to help expedite returning combat veterans with Orthopedic injuries.

    I had a career ending neck injury in June 2007. I was discharged December 31, 2008.

    After my discharge, I was welcomed to a small business loan note, secured as a second lien on my real estate, being called due.

    The lender was a Community Development Corporation (CDC), BCL Lending of Texas. I made an offer to make continuous monthly payments, as I had never been late.
    In fact, I was somewhat deceived. Told I had a ten year loan, the amortization was 10 years, but a 5 year balloon.

    Anyone who has ever delved into commercial finance knows that banks do this all the time, so I signed the note, and moved on in February 2004. I never had thought I was going on military active duty, and had I stayed home, coul;d have easily paid off this $60k note.

    Instead, I left behind a mini boom in real estate (purpose of the loan was real estate services). I had serious rehab/PT and pain issues from a neck fusion that did not relieve ANY pain or permanent motor loss in my left arm

    Perhaps having non profits able to lend SBA money, and out tax dollars in the form of block grants, would have indicated at least lender oversight for Federal or State (Texas) agencies, the OCC, SBA, etc.

    Sadly, there was no State or Federal oversight to push for a deferment. The CDC can lend money, then renege on their terms. Worse, they waited well past a “golden window” for my SCRA protection (60 days), to then sue me over a year and seven months later. It seems like deliberate circumvention of a poorly written law.

    I even had expert John Odom Esq, COL USAF, Ret offer to help. He even stated that there was “nothing he could do”.

    The INTENT of the LAW was to protect me, and I requested it within the 60 days of my discharge. However, the lender waited over a year, then dropped a suit on me.

    I am no attorney, but this sets a terrible case law precedent for other lenders to do the same. Don’t communicate with the borrower, then wait out the statutes of protection of the SCRA, then screw the service member who just gave up two years of life, income, etc top serve our country.

    If you want to know how to screw other veterans, just ask Austin, Texas attorney Clark Richards. He set this play up perfectly to circumvent the SCRA.

    NICE! Play. The area I was in is so “grey”, its pathetic.
    The INTENT of the law was to protect. I was given mis information by JAG, who stated I had no protection, but I did. I contacted DOJ, they did nothing to assist.

    Lesson to any other small business owners, Physicians, Private Practice Allied Health, etc: DO not serve until this gets resolved, if you have any type of small business loan.

    The worst part is that neither Congressman Lamar Smith, or the US Department of Justice would do anything proactive about this.

    Supposedly I was supposed to file a private cause within 60 days of my discharge in January 2009.

    Well anyone on this site knows that the new SCRA law did not get signed into law until October 2010 to allow us military a chance to pursue our own “private cause”. So who would have filed my private cause since every attorney I talked to military or civilian, had no expertise in the 50USC/SCRA??

    50 USC, APP 591 states that I could request a deferment of principal, equal to my active duty served. I had to do this within 60 days of discharge. I did this. My lender did not cash my checks for the next 11 months, so the assumption was they honored my request to defer the principle due, allow me to pay down the payments, and then when the economy improved, sell my property and pay off the loan.

    My active duty was two years and five months. Serving on military active duty almost half of the ENTIRE five year note term.

    I requested this deferment within the window required on this poorly crafted law.
    I never received any answer, and they stopped cashing my checks for 11 months.
    One would assume they honored the SCRA, as it allowed deferments as payments along with deferment of principal.

    “Hindsight” and the “Devil’s Advocate”, both lawyers, would argue that the Community lender never sent an official reply stating they had honored the request for deferment.

    Logic, a somewhat astute business owner argues that receiving no paperwork was not out of the “ordinary” with this poorly run non profit, BCL of Texas.

    This was no surprise, as the Community Lender’s Board President was deceased over three years ago, and never changed the filing with the Secretary of State’s Office. Paperwork was not their strong suit. And Logic also argues that had they intended to call the note due, then why did they wait so long. Had they filed a suit sooner, like most lenders who want their collateral, they file right away!!

    I believe this had to be a deliberate circumvention of the SCRA. Fix the SCRA via legislation, or lets get a good case going in Federal court to set case law precedent, if no one has any cahones to stand up to lenders and fix this.

    Last barbs:
    The Texas State Bar Failed to help, except take a look at my case, and say that I had no defensible grounds on a ballon note that came due 60 days after my discharge, after a two and a half year deployment. I had asked for a referral to a top SCRA attorney, which fell on deaf ears. I never received a reply. Just the “we are not representing you”/CYA response.

    And I understand that the ABA had a hand in drafting this poorly written/”lender biased” SCRA under 50 USC APP 591.
    This legislation that allowed me to be sued, even though I had made 11 months of payments!

    ABA It is nice to pay “lip service” to the military.

    But the reality is the JAG and local attorneys did not even know I had protection under the SCRA! I was told that protection ended once I was discharged.

    I read 50 US Code, APP 591.
    I was not even a “lawyer”, but can read. The law’s intent indicated that It was wrong to be forced to pay off a small business ballon note just 60 days after my medical discharge.

    In retrospect, I would have not volunteered as medical officer, had I known how poorly I was going to be treated after serving in a critical skill set.

    Perhaps the ABA needs to create SCRA legal CLE classes to educate attorneys to help us veterans?

    I am grateful for certain attorneys who offered to help.

    But sadly they could not, because they either did not understand the SCRA (Texas State Bar), or the SCRA was written so poorly.

    According to Attorney John Odom, an expert in this SCRA law, I had to sue my lender in Federal court within 60 days, just to defer the principal. No offense, but I lost over $200,000 in income from my deployment, and then was discharged with half my base pay to survive off of. I could not work in surgery, with no motor strength in my left arm.

    So assuming that I had a $10,000 retainer, and my loan was only $29,000 balance for the balloon, would not it make smarter business sense to apply the $10,000 in legal fees to the loan principle in the first place??

    I use this amount, as that is what the Attorney who sued me, Clark Richard tacked onto my balance for his legal fees. And I did not contest the case. He obtained default judgments.

    When is the next law school opening? I may as well sign up and take my LSATs. This is a great profession!!!
    Get the beat up on disabled veterans, and take away their equity that would have paid for some of their young children’s college!!

    America is screwed, when we do not take care of our veterans, and allow the attorneys to plunder their assets.

    Patrick Swint
    Major, US Air Force, Retired
    http://www.disabledveteranadvocate.com

  • Wm Heino Sr.
    10:11 AM April 29, 2011

    “Clear and substantial” major damage to federal interests.
    =
    There is “clear and substantial” major damage to federal interests when state court judges make lasting decisions that seriously impact and complicate the Veterans Administration goals. Upsetting, by overruling the medical decisions, and the many hours of work that VA medical care professionals have invested in rehabilitation of disabled veterans, all this when a state court arbitrarily is allowed to take away a veterans VA disability compensation in third party alimony awards in violation of…..
    38 USC 5301. Nonassignability and exempt status of benefits, and….
    38 USC 1155 “Authority for schedule for rating disabilities.
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    Now, “.. an argument may be, is that the veteran’s disability rating has not actually been downgraded. No one has actually decreased the VA predetermined rating. In this situation, the judge is merely apportioning it after the fact.”
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    This maybe true, however, based on the fact because the rating and compensation are directly tied to each other. Sure the rating may have not gone down, but to a veteran his disability compensation payments is contingent upon what VA medical professionals determined the disabled veteran should be compensated for, forgetting for the moment, any rating system. To the veteran who loses any portion of his compensation payments, he considers his rating has been downgraded. Because, now his VA rating is meaningless. After all, a veterans health and well being are now in jeopardy. A “ cause and effect” situation. We just have to stop this nonsense that’s happening in state courts.
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    Which brings up the question, how can state court judges in violating, 38 USC 5301, 42 USC 1408, arbitrarily award as alimony, a portion of a veteran’s VA disability rated compensation, and waive away, by reviewing the disability rights of veteran whose disability rating that maybe determined and factored in as critical? Judgment as if all disabilities are exactly the same. State court judges, playing doctor, a practice forbidden by law, border on medical negligence, overstepping those whose authority it belongs, in the practice of medicine, re-evaluation, and rehabilitation of the veteran, and VA medical professionals. In direct violation of 38 USC 1155, “Authority for schedule for rating disabilities.” “…, [I]n no event shall such a readjustment in the rating schedule cause a veteran’s disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran’s disability is shown to have occurred.” Reduced readjustment in a rating schedule, in the taking away money’s used for the recovery and rehabilitation of disabled veterans, and handing it over to a healthy third party. Was it the intent of Congress that judges substitute their judgment for the judgment of VA medical professionals?
    =
    I now wondered, if state court judges are allowed to take away a veteran’s disability compensation without a medical license, or medical knowledge? How does the Board of Veterans Appeals, who are continually faced with determining a veteran’s disability compensation, or other medical claim, adjudicate these medical questions?
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    § 20.101 Rule 101. Jurisdiction of the Board.
    “…Medical determinations, such as determinations of the need for and appropriateness of specific types of medical care and treatment for an individual, are not adjudicative matters and are beyond the Board’s jurisdiction….”
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    Even the Social Security Administration… has medical evidence standards they must follow.
    42 USC 423 “In making any determination the Commissioner of Social Security shall make every reasonable effort to obtain from the individual’s treating physician (or other treating health care provider) all medical evidence, including diagnostic tests, necessary in order to properly make such determination, prior to evaluating medical evidence obtained from any other source on a consultative basis.”
    =
    State court judges in awarding a veterans’ VA disability compensation as ‘income’ in a divorce, show an indifference to veterans’ and their serious medical needs. The deliberate intrusion by state courts into federal issues and laws, ruling arbitrarily by awarding VA disability compensation to a third party is unwarranted. They are required to obtain advisory medical opinion from medical experts, just as required by the Board of Veterans’ Appeals (BVA), and as well, as in all other civil litigation.
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    Judges, rule arbitrarily that they have the right to award VA disability compensation to third parties. The right to play doctor. Because of this, these judges have taken on the responsibilities of a medical doctor, and ruled as a doctor. Contrary to the veteran’s reliance on 38 USC 5301, and because of the disability of the veteran, they have, by their judicial proceedings determined the disabled veteran is incapable of caring for his or her own interests. Due to a veterans’ disability, and their authority as judge in ruling, awarding of VA disability compensation to third parties. The reality is, the state court judge has taken on another responsibility, and became the veterans’ legal guardian, his “ward”. Another disabled veterans’ right, that of being able handle his or her own rehabilitation now has been taken away .
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    The legal recommendation of the VA’s own General Council in medical determinations, and questions, that are beyond the knowledge of those not in the medical field.
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    38 CFR 20.901 Rule 901. Medical opinions and opinions of the General Counsel.
    “(d) Independent medical expert opinions. When, in the judgment of the Board, additional medical opinion is warranted by the medical complexity or controversy involved in an appeal, the Board may obtain an advisory medical opinion from one or more medical experts who are not employees of the Department of Veterans Affairs. Opinions will be secured, as requested by the Chairman of the Board, from recognized medical schools, universities, clinics, or medical institutions with which arrangements for such opinions have been made by the Secretary of Veterans Affairs. An appropriate official of the institution will select the individual expert, or experts, to give an opinion.” (Authority: 38 U.S.C. 7109)
    =
    VA Can’t Base Denial on its Own Medical Judgment Colvin v. Derwinski, 1 Vet. App. 171 (1991) “Colvin stands for a now deeply embedded and fundamental principle of veterans law—the VA may use only independent medical evidence to support its benefits decisions. The VA may not use the medical opinion or judgment of the VA rater or BVA Veterans Law Judge to support a decision”
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    “…before a state law governing domestic relations will be overridden, it “must do ‘major damage’ to `clear and substantial’ federal interests.”
    =
    “Clear and substantial” major damage to federal interests occurs when, in attaching, or “considering” for any offset reason, the VA rated disability compensation benefits of disabled veterans by judges practicing in a field where they have no expertise. The expertise that VA doctors, and VA healthcare professionals are required to have in order to determine the appropriate medical procedures, and the proper disability compensation payment in order to rehabilitate, with a medical degree of certainty, that would ensure a disabled veteran return to a healthy meaningful outlook, and enjoyment of life, and independence in daily living.
    =
    “Clear and substantial” major damage to federal interests occurs. When the work of the primary medical care provided by Veterans Administration medical teams to disabled veterans’ has been compromised by activist state court judges. Readjusting the VA’s predetermined medical disability payment rating schedules, by court order to lower VA payout levels. Attaching these just acquired disability compensation benefit payments as alimony awards, by judges practicing in a field where they have no business practicing. Doctors do not attempt to practice law. The expertise and knowledge of VA doctors, and VA healthcare professionals are required in order to determine the appropriate medical care, and disability payment compensation in order to rehabilitate, with a medical degree of certainty, that would ensure a disabled veteran return to a healthy meaningful outlook, and enjoyment of life, and independence in daily living.
    =
    “In no event shall such a readjustment in the rating schedule cause a veteran’s disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran’s disability is shown to have occurred.”
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    As described, it is overtly clear that disabled veterans “fundamental rights” through state court action, violate the 14th amendment of the U.S. Constitution, and many federal laws to protect the veteran, i.e., 38 USC 5301, 38 USC 1155, 10 USC 1408, 42 USC 659. Finally, 42 USC 1983, “Civil action for deprivation of rights. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State.. subjects, or causes to be subjected, any citizen of the United States… deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, … or other proper proceeding for redress,..”
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    State court judges may have adjudicated the normal “due process” in the distribution of income, however, this is only one part of two (2) separate “due process” issues in divorce proceedings. This is not just a one “due process” fits all situation, as state court judges may want to think. When a veterans disability compensation is court ordered as part of any alimony distribution, before the “consideration” of service connected disability compensation, as part of any alimony award, there is a separate “due process” right, to fair adjudication of a veterans’ claim for disability compensation benefits. This has not been done. Entitlement to benefits is a property interest protected by the Due Process Clause of the Fifth Amendment to the United States Constitution.

    PHILIP E. CUSHMAN, v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, August 12, 2009.

    http://linehanpc.com/vadisabilityclaim/cushmanvshinseki.html

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    It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law. See Atkins v. Parker, 472 U.S. 115, 128 (1985); Mathews v. Eldridge, 424 U.S. 319, 332 (1976)
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    Veteran’s disability benefits are nondiscretionary, statutorily mandated benefits. A veteran is entitled to disability benefits upon a showing that he meets the eligibility requirements set forth in the governing statutes and regulations. We conclude that such entitlement to benefits is a property interest protected by the Due Process Clause of the Fifth Amendment to the United States Constitution.
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    Major damage “clear and substantial” to disabled veterans. There are two ways to stop this.
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    (1) Challenging state court judges as to their misguided belief that their knowledge of law qualifies them to practice in the field of medicine, of which they have no knowledge, by overruling VA disability compensation decisions. Court rulings that lack the requisite expertise to draw conclusions that test the assessment, evaluation ,and reasonableness of the weight given by VA doctors and medical professionals in allocating proper VA disability compensation payment levels.
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    (2) Because of these illegal state court actions, write to Secretary of Veterans Affairs to question those VA policies that are in violation of federal law which ignores compliance to a legal process which serves to protect the interests of the disabled veteran. Sec. 5301.“Nonassign- ability and exempt status of benefits.” Questioning why the VA continues to approve rubber stamping illegal state court ordered judgments, to reapportion, and therefore reduce a disabled veterans VA compensation payments in violation of federal law for alimony purposes, by a state court judge playing doctor? 4 USC 581.305 (c) “…the governmental entity shall inform the party who caused the legal process to be served, or the party’s representative, that the legal process will not be honored.”
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    Most likely this will be turned down by the Secretary. Now, you are on your way to the Federal Court of Appeals for Veterans Claims. Your next step you will file a Notice of Disagreement (NOD) with the Secretary. The VA will deny. You then file with the Board of Veterans Affairs (BVA). As well the BVA will deny your claim. The process now gets to were you want to go, and that is the United States Court of Appeals for Veterans’ Claims.
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