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An Army officer's complaint during a Pentagon "town hall" meeting might breathe new life into an issue Congress has ignored for years: a 1982 law that allows state divorce courts to divide military retirement as marital property jointly earned.
The particular "injustice" cited by the officer, whose comments caught Defense Secretary Donald Rumsfeld off guard, is a court order directing that she pay her ex-husband a share of her retirement when she reaches 20 years of service in 2006, whether or not she retires.
It will have the effect of forcing her out of service, said the officer, later identified as Lt. Col. Patricia Larrabee.
"I can't afford to write [a] check to my ex-husband every month out of my military pay," she told Rumsfeld during the June 29 forum, televised worldwide to U.S. troops over the Pentagon Channel.
"By the way," Larrabee added, "he makes thousands and thousands of dollars more than I do."
But Gen. Richard Myers, chairman of the Joint Chiefs, had. Appearing with Rumsfeld, Myers stepped forward to advise his boss that the law in question had been written in an earlier era when military spouses were almost always women and "probably did not work" outside the home.
"So it needs to be looked at," Myers said, endorsing Rumsfeld's promise to Larrabee to have Dr. David Chu, under secretary for personnel and readiness, review the issues.
Larrabee reminded Rumsfeld that the divorce rate in the military is higher than for civilian couples and is rising. According to Army data, the spike in divorces is particularly high among officers, attributed largely to the pace of deployments to wars in Iraq and Afghanistan.
More than 3,300 Army officer marriages ended in divorce last year, up 78 percent from a year earlier and triple the number in year 2000. Among Army enlisted soldiers, more than 7100 were divorced last year, an increase of 28 percent over 2003 and 53 percent since 2000.
Critics of the USFSPA say more and more court judges are directing active duty members, as part of their divorce settlements, to begin to make payments based on estimates of their share of future retirement benefits.
Indeed, though it escaped Rumsfeld's notice, the Defense Department in February proposed, as part of its 2006 defense authorization budget request, that the USFSPA be amended to prohibit court-ordered payments based on the "imputation of retired pay," thus forcing members to make retirement payments to ex-spouses before they actually retire.
The House and Senate armed services committees quietly dropped the suggested change from the defense bill, viewing the issue as too contentious.
Larrabee, who could not be reached for further comment, told Rumsfeld she had custody of the couple's two children and that her ex-husband "resigned from the military because it wasn't lucrative enough for him." During their nine-year marriage, she said, "he tripled his income due to the support I provided him while he went to school full time. And by the way, I supported the family with my military paycheck."
"Sir," Larrabee told Rumsfeld, "we are your supporters -– some of your biggest supporters in this country –- and we would like to get support from our leadership as well."
Based on data compiled last year, the Defense Finance and Accounting Service had been receiving about 18,000 court orders a year directing the division of military retired pay as part of a divorce settlement
Larrabee told Rumsfeld her circumstance might "sound a bit shocking to you because now there's a woman having to pay an ex-husband who makes just a lot more than a lot of us in this room." But in fact, she said, it's a gender-neutral issue affecting many service members although "we can't get a congressman or anybody to touch this."
For several years, Rep. Cass Ballenger (R-N.C.) had a bill before Congress, called the Uniformed Services Divorce Equity Act, which would have amended the USFSPA in several ways to better protect divorced military members and retirees when courts divide their annuities as marital property.
The Defense Department finally provided an official position on the bill in April 2004, which coincidently was after Ballenger announced his decision to retire. The DoD opposed his call to limit the number of years that former spouses can receive court-awarded shares of military retirement. It also opposed provisions that would have dictated the size of ex-spouse shares in future divorces and would have set a two-year window for ex-spouses to seek a share of military retirement after divorce or forever lose the right.
But the DoD supported two provisions of that bill. One would prohibit courts from requiring members to share future retired pay before they retired. The second would have ended what retirees call "windfall" compensation to ex-spouses, a share of higher retired pay traced to promotions earned and extra years served since their divorce.
Courts consistently have turned back legal challenges to the USFSPA, usually suggesting that Congress make whatever changes are appropriate.
But Congress fears opening USFSPA to any change would require hearings and fuel a firestorm of lobbying by both divorced members and ex-spouses, many of whom have their own stories of neglect and injustice.
Since Ballenger retired, no lawmaker has taken up the cause and committee chairman ignore the complaints. A push from the JCS chairman could change the dynamic but it's also true Myers will retire in September.