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Veteran files case involving spousal support to US Supreme Court

By Nicole Byerly     May 15, 2012 in Lifestyle
Veterans across the United States are gathering to demand an answer to an all too common question: Can Veterans' benefits provided for personal injury be used in family courts as income to create an order for support?
One Veteran has taken this question to the United States Supreme Court. Peter Barclay, 42, from Albany, Oregon filed his case in the Supreme Courts earlier this month with the assistance of his lawyer, Michael Eisenberg, from Washington D.C. Mr. Barclay is not alone on this issue. Hundreds of Veterans across the United States are provided compensation due to injuries sustained during service. This compensation is provided by the guidelines established in 38 USC 1110, which reads in part:
For disability resulting from personal injury suffered or disease contracted in line of duty … the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter…
This compensation is rendered exempt from any legal or equitable process, but the long-time belief in most court rooms is that this exempt and unassignable status does not apply in family court.
Peter Barclay was stationed at Tinker Air Force Base with the 3rd Combat Communications Group in Midwest, Oklahoma from 1993 – 1995, only a short period in his near ten year military service on the Air Force. During 1995, he was sent to the Oklahoma City bombing site, where he was responsible for removing bodies from the second floor daycare nursery. During his service at the OKC bombing site, part of the building structure fell on him, resulting in crushed vertebra and a compound of several other injuries. In 1998, Mr. Barclay began experiencing flashbacks due to an onset of Post Traumatic Stress Disorder, however he was not diagnosed with PTSD at the time. The flashbacks did, however result in the inability to extend his military service for a longer period.
After the September 11 attacks on the World Trade Center, the flashbacks intensified to a point where Mr. Barclay was diagnosed with severe PTSD. He was officially diagnosed with PTSD in 2003, thus rated 100% disabled due to PTSD and a combination of several physical injuries resulting from the collapsed building at the Oklahoma City Bombing site. Mr. Barclay was also rendered disabled by the Social Security Administration due to his service connected injuries.
Mr. Barclay explains how his injuries began to seem problematic for his marriage. Although he states that his views of the breakdown of his marriage are opinion based, he said that problems began to occur after he was diagnosed with PTDS. Peter was employed prior to his official rating from the DVA in a job making over $150,000 a year, while his ex-spouse was working at home doing web designs and other various knacks where she was making $25 - $100 an hour, according to court documents.
On his ex-wife’s employment, Mr. Barclay stated that she was very passionate about sewing. “I bought her all the stuff she ever needed. I always got her the latest computer gear even before me. We spent $15k on surgers, embroidery and special sewing machines. Right before we split she wanted to be a professional photographer. So we got her all the greatest film and digital gear and even film developing equipment. We were going to turn a room into a dark room for her. She was making $25/hr for web design and able to hold full time hours doing it and selling dresses at $150 to $300 each.”
It would seem that Mr. Barclay’s inability to earn as much money may appear as a problem. He comments, “I don't know if she decided I was worthless because I was no longer the "big strong man of the house" or because I wasn't making all the money or both or because she was getting older and was having mid life crisis issue or a combination of all of that. But looking back with 20/20 now that's when it ended. While it was happening, I was blind. I tried taking her to counseling, giving her everything I could, doing everything she wanted or asked. “
A short period later, in 2007, his ex-wife moved in with her 17-year old boyfriend. She later filed for divorce in 2008, which was finalized after numerous continuances on her part, in 2010. Suffering with any physical or mental conditions is hard enough, but having to deal with the additional stress of protecting your children through a divorce is a difficult process. Mr. Barclay states, “During the divorce I refused to let the kids be exposed to this and even did everything I could to remove them from the case, even to the detriment of myself.”
After the divorce, Peter Barclay was court-ordered to pay $1,000 a month in spousal support out of his Veterans benefits and money from Social Security. The long time belief, however, is that Veteran’s benefits for personal injuries cannot be used in court rooms as income.
Anyone who has ever questioned Veterans Benefits and the role they play in courtrooms is most likely very familiar with the 1987 case of Rose v. Rose and the 1989 case of Mansell v. Mansell. In Rose, the U.S. Supreme court was presented with the question of whether or not a state court could find a Disabled Veteran in contempt for failure to pay child support due to not using his Veterans Benefits to do so. The case was ruled that the state court could charge him because there were no laws that stated the Department of Veterans Affairs was the sole authority over Veterans benefits. This was changed the following year in 1988 where the Veterans Court System was established and rendered to have the sole authority over Veterans benefits. However, numerous courts across the United States fail to bring forth this information, thus they continue to reference the Rose v. Rose case in determining that Veterans benefits for personal injury are “fair game.”
The 1989 case of Mansell v. Mansell is often cited to determine if Veterans benefits received through a waiver of retirement pay can be used to determine spousal support or child support. This case rendered that the pay can not be used, but judge's ignore this because they state the case addresses benefits received as a waiver of retirement pay and does not address whether or not pay for personal injury can be used. The case of Mansell references 10 USC 1408, commonly known as the “Uniformed Services Former Spouses' Protection Act” or (USFSPA). After Mansell, the USFSPA was modified to establish to include a definition of disposable retirement pay, which excludes any Veterans benefits received in lieu or retirement. Courts ignore this change because they continue to divide the entire amount of money received, regardless of its reason.
In 1988, Congress enacted the Veterans Judicial Review Act, which stated that “The Secretary shall decide any 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.” This was further implied through a series of changes over the following years which implemented the Department of Veterans Affairs into the President’s Cabinet, giving sole authority over Veterans Benefits to the Department of Veterans Affairs. This was continually challenged over the next couple of years until the VJRA was reworded to include (38 USC 511) “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.” This change instilled the rule that the DVA was given sole jurisdiction over Veterans Benefits, entitlement of benefits, and any questions or legal obligations set forth with benefits.
These changes are rather significant when it comes to courts use of Veterans Benefits and the inclusion of these benefits for support orders. The DVA offers an Apportionment of benefits, which is an offset of benefits sent to a child or child's legal guardian for care of a child, or a spouse who is no longer living with the Veteran, due to the Veteran being hospitalized. The apportionment, however, is not available for ex-spouses. There have been numerous cases over the years where ex-spouses have been denied apportionments because they are no longer married or because they are living with a boyfriend or girlfriend.
After implying the changes from Congress, it is clear that the benefits provided for personal injury are for the Veteran alone, as it is he/she who suffers and is compensated for the suffering.
Peter Barclay’s case was filed in 2010 in the Linn County Court. He filed an appeal on the order, stating that injury benefits could not be used, but the appeal was rejected. He escalated the case to the Oregon Supreme Court and, again, the case was rejected. Now, he filed the case with the U.S. Supreme Court so there may finally be some clarity to family courts use of Veteran Benefits.
Mr. Barclay, as well as hundreds of Veterans across the country, believe the benefits provided from the Department of Veterans Affairs for personal injury are for the Veteran alone. Veterans suffer unimaginable conditions when they are working in the service. These injuries, both mental and physical, continue for life. Congress compensates a Veteran, not for loss of wages, but for ‘loss of life.’
We are all hoping that Mr. Barclay’s case is accepted by the U.S. Supreme court. Mr. Barclay states, “The simple fact is, to me this comes down to who benefits are intended for.” He reasons that Veterans benefits are not for the support of an ex-spouse, and the Veteran is the only person congress intended benefits provided under 38 USC 1110 for. “As a veteran the only "public assistance" type programs I can get are from the VA. As a disabled veteran I get money for me, then a payment for a spouse and for each child. When you get divorced, the veteran stops getting paid for a spouse,” Mr. Barclay reasons. This should be evidence alone that the benefits are not for the ex-spouse.
This case is not for Peter Barclay alone. It is a case that could potentially help Veterans across the United States. “Part of what this case is about is, participating in our country's system. Following all the legal processes of our judicial system to bring a huge nationally conflicted issue to the highest court of our country and ask for them to give us an answer. If anyone were to look at this case there is one major and powerful reason why the US Supreme Court needs to hear this case. It doesn't matter which side you think is right. The fact is, there are plenty of states that make rulings and believe VA Compensation benefits can be used. Then there are plenty of states that make rulings and believe they can NOT be used. It doesn't matter which set you look at, none of the states that believe the same conclusion can agree on the reasons, why or why not. This is a federal question and we need the federal government to make a final binding ruling for all states to follow. Win or lose, our country NEEDS this answer. “
Peter Barclay is supported by the non-profit Veterans Group, Operation Firing for Effect (OFFE). OFFE has spent many years combating the issue of Veterans Benefits Abuse in family court across the nation. From reaching out to congressmen, the Secretary of the Department of Veterans Affairs, and various news stations across the country, they continue to raise awareness that this just is not right. Peter Barclay is one of over 150 Veterans working with the OFFE to raise awareness on the issue. Barclay states, “OFFE is a great organization. To me I think it's really awesome when any group is willing to get into the middle of controversial issues and demand to get the system set into a fair and equal fashion. Politicians run screaming from controversial issues and because of that, the really big problems never get taking care of. These are people willing to stand up and say; "Hey, this isn't right". Go against people who are so convinced they are doing the right thing because they are too blind to the real issues or too afraid to consider they have been doing something wrong. They have done a great job bringing awareness to the issue that is go on in this area. You really have to commend a group that is willing to get involved in the political system and follow all of the rules and processes of our American system. These are guys who are willing to say, the reason the system is failing us is because we aren't using every single part of it to get things fixed. Be willing to spend the years of time it takes and the determination it takes to push any issue from beginning to end to get things fixed.”
Operation Firing For Effect has rallies planned in Las Vegas on May 15-16, 2012 to raise awareness on the issue with Veterans Benefits Abuse, the rising number of homeless Veterans, and the growing number of Veterans who are divorced due to their injuries. These rallies are supported by Willie Nelson and Jocko from Sha Na Na.
Courts across the United States continue to use Veterans Benefits provided for personal injuries in court as a form of “income” when setting an order for spousal support. Veterans are deprived of the ability to care for their injuries, and often suffer great financial strains as a response. Court judges and lawyers continue to reference Rose v. Rose (1987) and Mansell v. Mansell (1989) even though these cases have since been proven irrelevant by changes in law rendering the Department of Veterans Affairs as having the sole jurisdiction over Veterans injury benefits for the veteran, spouse, and children. The problem with referencing a case while ignoring change in law is a blatant abuse of the legal system and Veterans Rights. Peter Barclay hopes his case can stop the abuse of Veterans from courts once and for all.
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More about Veterans benefits, 38 USC 5301, 38 usc 1110, veterans rights, OFFE