Military Families at Risk - The Unrecognized Battlefront

Soldiers receive special extra pay to support their families, but the funds are misused when soldiers who receive the pay withhold the proper share from their families and keep the money for their own use. It is a common problem.

Salem-News.com

(NORTHFIELD, Ohio) - Many sacrifices are made by members of our Armed Forces during times of war, of civil unrest, or of national distress, and whenever our great country has the need. And the sacrifices made by these military service members are made equally by the spouses and children of our military families.

Military families are a special breed. They have signed up to sacrifice any hope—in many cases, for life—of an ordinary existence. They often live without the presence of their service member spouse as parent and partner. They often live in fear as their spouses deploy to dangerous areas. They often endure the difficulty of dealing with spouses suffering from Post Traumatic Stress Disorder, and the related difficulties that condition brings.

Despite these difficulties and sacrifices, one thing military spouses count on is that they and their children will be taken care of financially in spite of losses or suffering. The unfortunate fact is, too many of them end up abandoned by their soldier spouse and must then face another battle—largely unseen and often fruitless—to receive the support promised them by law.

Scope of the problem

As the United States continues its mission to defend and protect democracy throughout the world, the need to strengthen, renew and support the ranks of its Armed Forces is constant—and that must include supporting the families that have long stood beside them.

Even the most heroic soldier and his/her spouse may find themselves estranged at some point. Some of these soldiers choose to continue supporting their families, but many do not. The fact is, every day, on military bases and in off-base homes around the country, abandoned military spouses and children struggle to meet their basic financial needs. Though the Army has measures in place to address these types of situations, the relevant regulations are being neither applied nor enforced. The Army isn’t unique; this problem of spousal/family abandonment exists in every branch of the Armed Forces.

Soldiers receive special extra pay to support their families (BAH, FSA, etc.). Unfortunately, in cases of abandonment, the funds are misused when soldiers who receive the pay they’re entitled to withhold the proper share from their families and keep the money for their own use. It is a common problem.

Federal agencies charged with enforcing existing laws don’t have access to enough statistics on this common situation, which means awareness remains very low. Mrs. Kathy Mills, editor of the Divorce section of the website www.4militaryfamilies.com/ for five years, regularly receives hundreds of calls and letters from distraught military spouses reporting that a service member has abandoned the family. Sadly, such radio and online efforts reach only a small proportion of those in need.

This worsening situation may even begin to cost our country future soldiers. Chronic lack of support negatively affects quality of life for not only the spouse but also for dependent children. Given that military families tend to produce ongoing lines of descendants who are more likely to become members of the Armed Forces, this forced reduction in quality of life can easily contribute to a decline in the number of available non-conscripted candidates to serve the United States in future years.

Family support is required by regulation

All branches of the service require that military families receive support. In the case of the Army, military spousal support regulation 608-99 is clear

Chapter 2,

The Legal Obligations of Soldiers, Section I, General, 2–1.

Obligations to geographically separated family members

A soldier is required to provide financial support to family members. This obligation is frequently complicated. When the soldier is geographically separated from the family. In the majority of these situations, the soldier and the Family can manage the financial support without command involvement. These arrangements may include joint Checking accounts or voluntary allotments to the family as appropriate.

The commander must become involved when the parties are unable to agree on a proper method to provide financial support to the family members. This obligation does not arise until a family member or an authorized Representative of the family member complains to the command that the soldier is failing to provide proper support.

2–5. Punitive provisions regarding financial support

A. Soldiers will not violate any of the following:

1. The financial support provision of a court order.
2. The financial support provision of a written financial support agreement in the absence of a court order.
3. The financial support requirements of paragraph 2–6 in the absence of a written financial support agreement or a court order containing a financial support provision.

B. This paragraph is punitive in nature (see para 1–6). Commanders are responsible for the enforcement of this Paragraph (see para 3–10).

C. A soldier cannot fall into arrears without violating this regulation.

Although the collection of arrearages based on violations of subparagraphs a(1) and (2) above may be enforced in court, there is no legal means to collect arrearages based on violations of subparagraph a(3) above.

Nevertheless, in all cases, soldiers should be encouraged, but not ordered, to pay arrearages. Additionally, a soldier who falls into arrears may be punished under the provisions of Article 92 UCMJ for failing to make the support payment required by subparagraph a(1), (2), or (3) above at the time that the support obligation was originally due.

Punishment in such instances is based on failure to provide financial support when due, not for failure to pay arrearages.

2-7.

(5) A soldier’s obligation to pay BAH II–WITH to the family members will begin on the date that the family members vacate the Government quarters. The obligation to make this support payment begins even if the soldier has not cleared Government quarters and is not entitled to draw BAH–WITH.

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(e) The soldier is not receiving BAH–WITH based solely on the financial support of the family members concerned or agrees to terminate such BAH–WITH effective upon the date released from the support obligation.

Soldiers must complete DoD (Department of Defense) Form 5960 in order to receive BAH-WITH/DEP. In that form they are required to state that they will use this money to provide support to their military dependents.

Family Separation Pay (FSP) is only issued to a soldier who is married.

Separation and divorce make a soldier ineligible to receive it. FSP is intended to help the family of a soldier who is not present in the home and cannot be there for routine family assistance such as cutting the lawn and caring for children. Army Regulation 608-99, for example (each branch has its own regulation), Penalties: Personnel subject to the UCMJ who fail to comply with paragraph 2–5 or 2–11 are subject to punishment under the UCMJ as well as to adverse administrative action and other adverse action authorized by applicable sections of the United States Code or Federal regulations. Paragraphs 2–5 and 2–11 are fully effective at all times, and a violation of either paragraph is separately punishable as a violation of a lawful general regulation under Article 92, UCMJ, even in the absence of a prior complaint from a family member or counseling by a commander.

A commander will enforce this regulation against soldiers without regard to other courses of action that may be available to family members in obtaining the relief they are seeking (see para 3–10).

However, the issue arises by leaving it to the commander’s discretion as to whether or not a soldier should be punished.

This one simple provision, as utilized by commanders, makes Reg. 608-99 ineffective. There is no consistency for family support when the sole decision to interpret civil court orders is left up to a commander. The commander is not an attorney, a judge, a social worker, nor should that , be expected.

The relationship between a soldier and the military command structure is a delicate one. Sometimes that delicacy gets in the way of resolving these difficult issues. Since commanders are only as good as the soldiers they command, it’s natural they would not wish to alienate soldiers. Yet the code of every branch of the Armed Forces refers to integrity and ethics as integral to the way of life for its soldiers. Despite this mandate, too many soldiers are not called to account for withholding approved government support.

The law is clear: it is the will of the people that the military spouse and family receive support. Requiring a military commanding officer to essentially "point the finger" at the soldier under his/her command for a matter unrelated the service member’s military duties risks damaging the critical relationship between the two. When families are denied support, it is counterproductive to involve a soldier's commanding officer in what is essentially a matter between a husband, a wife, and the law.

Despite military regulations and other laws that govern, spousal abandonments continue. Proper enforcement requires a more effective system of checks and balances.

The appeals process

A spouse who’s been abandoned can choose from an arsenal of appeals processes—if she or he has the patience, temerity, money, and courage to search hard enough and fight long enough. (See Exhibit A: One spouse’s quest for support – A timeline) and (Exhibit B: A Legal Summary of One Spouses Years of Effort to the Ohio National Guard).

Despite existing options, a myriad of complex laws, policies, and attitudes that interface with the military system can cause insurmountable difficulties for even the most patient and tenacious of abandoned spouses. They often end up being referred from person to person without receiving any resolution. Some spouses have been placed in an adversarial role with family-support law enforcement entities for years. In the sense that the spouse is never represented by military judge advocates who are there to represent the military only. They refer spouses to find civilian attorneys. Unfortunately, most civilian are not familiar with military regulation. At this time, spouses are usually financially handicapped and cannot afford them. Meanwhile, children grow up deprived and scarred by their absent parent’s lack of care for them and hurt by the stresses an abandoned parent must face alone.

While this happens every day to children outside the military, it is generally agreed that the military family is unique. That its members sacrifice equally and serve their country as much as the soldier does—and deserve the support decreed for them by law. Sadly, enforcement of that law remains a problem.

Administration supports military family issues

In May 2009 Speaker of the House Nancy Pelosi hosted a roundtable discussion at the Capitol, highlighting the successes and challenges of military spouses. The National Military Family Association shared spouses’ personal stories with Members of Congress and White House staff. Military spouse members of the National Military Family Association described their struggles with employment, access to mental health providers, the unique nature of National Guard and Reserve deployments, the importance of continued resources for survivors, the isolation felt by families of National Guard Members and the need for increased time at home between deployments. Invited panelists discussed their pride in their country and their commitment to serving beside their service member spouses.

House Armed Services Committee Chairman, Ike Skelton (D-4th/MO), representatives from several states, and other Members of Congress joined Speaker Pelosi in acknowledging the sacrifices made by military spouses and children. They pledged to do more to show their appreciation and to expand the Nation’s support. Yet serious challenges remain.

Obstacles and challenges

Marriage is a difficult proposition under the best of circumstances. In the case of military marriages, the challenges can be even more overwhelming. While estrangement and separation are at least as common among military families as among civilians, one difference is highly significant. A spouse whose military member husband/wife is deployed in the service of the United States cannot, by law, sue to end the marriage—no matter what the circumstances. On the other hand, a soldier who wishes to leave a marriage has two options:

1. He/she can sue for and obtain a divorce, or
2. He/she can simply abandon a spouse and children and continue to benefit from the government monies legally allocated to help support the family.

Despite existing laws, strong public support, and the endorsement of government officials, support for many abandoned military spouses and children is simply not forthcoming when it is petitioned for. Protection without enforcement is no protection at all. A spouse who seeks appropriate support monies faces a series of daunting obstacles to rectify the situation. And one obstacle is paramount: no soldier who receives BAH and FSP monies can be ordered to use them to support the family.

Fighting the battle on multiple fronts – the military system

Withholding BAH and/or FSP funds from a military spouse qualifies as spousal abuse under military law. Yet, proving such abuse proves nearly impossible since no trial can be instituted for spousal abuse without the express permission and approval of each soldier’s commander. It is up to the commander to pre-determine that non-support is occurring and that government-supplied funds are being used for purposes other than those they are designated for. It is here that a hidden system works to override the official system.

Few statistics are kept concerning this issue. There is little backup for an individual spouse’s claim that this problem is not unique to her (or him). Specific challenges arise because:

1. Existing military laws are inadequate: Mandates are in place, but no soldier can be ordered to comply. For example, at the federal military level, military protection orders—by which abandoned spouses can receive redress—are granted in only 7% of cases.
2. Ethics and integrity regarding the military family’s needs are easily put aside as a consequence of the commanding officer’s desire to support the soldier.

Individual petitioners (abandoned spouses) who manage to learn the military system and persist in fighting may gain some relief. But the vast majority does not have the knowledge, time, and resources to do so. And relief for one determined spouse does not translate into help for the hundreds of others who have only the system to trust—and clearly the system doesn’t work. Additionally, the costs involved—including legal fees—are significant at a time when families are least able to afford such expenses.

The reality is that the military system “looks the other way” when it comes to military spousal abandonment.

Civil law protections

Civil laws exist to protect spouses from various types of abuse, including financial abandonment. At the state level, spouses who have the time, money and resources may appeal to the Civil Court. Another factor comes into play—the revised Soldier Sailors Civil Relief Act which can be used as a sword or a shield against or for military families. The Civil Relief Act provides automatic 90-day civil court stays that soldiers can use to prevent judicial orders/hearings from being issued against them. This situation leaves the military spouse unable to obtain civil court orders that could provide her financial support from the soldier and an ability for the commander to fully enforce 608-99 with the soldier.

See Exhibit A for a sample timeline based on one spouse’s quest for support enforcement through the civil and military systems. If you would like more information, we are pleased to provide you with copies of additional documentation on the particulars of any aspect of the appeals process. Contact Mrs. Kathy Mills at Kathy@kathleenmills.com.

How You Can Help

The failure of the military system means adding costs to health care, unemployment and welfare in America today when abandoned spouses must petition other agencies for relief. Clearly, enforcing military support laws is a difficult proposition. Yet there is a simple way to stop the drain and reward the loyalty these families show when they willingly accept the challenges of military life. Their dedication provides an immeasurable incentive and reward for soldiers serving around the world.

As a taxpayer, you have sanctioned the position that military families deserve support. As a father/mother/son/daughter, you know the critical importance of security in a family. As a legislator, you have promised to uphold the law.

And now you can make all the difference in the world to these families by addressing this difficult situation in a simple way.

A simple solution

In order to preserve the original intentions of spousal support law, model a new law upon the existing one that protects former spouses during divorces. The new law would be entitled “The Uniformed Services Spouse Protection Act (USSPA).” It would provide a simple system of checks and balances. It would smooth the process and end the frustration and suffering of abandoned military spouses and families. It would stop the waste of government time and money spent trying to enforce existing laws.

The law would simply provide that an estranged spouse who has a valid marriage certificate may petition DFAS directly for BAH/FSA income entitlements. From this single action, four major benefits would result:

1. End the agony of decision that military commanders face when asked to intervene to enforce support.
2. Save hours of paperwork by reducing or eliminating the incidence of BAH fraud.
3. Ensure that funds already approved by taxpayers are being used for their intended purpose. Ensure that BAH-WITH and FSP already approved by taxpayers are being used for their intended purposes (i.e., the support of military dependents)
4. Eliminate the temptation for soldiers to profit from abandoning their spouses.

The good you will do

Passing this new law is good for America. It will save the thousands and thousands of dollars other government agencies must provide when family military pay is diverted from its rightful purposes. It will save the government the hours and hours now spent to manage the appeals of deserving spouses who are forced to chase after their legal entitlements.

And perhaps even more importantly, the new law will enhance the image of our country both at home and abroad. It will demonstrate that we, as a people, believe in backing our military forces in every way. And that includes standing behind our military families, recognizing the great sacrifices they make and ensuring they are not abandoned in their time of need.