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New Garnishment Policy through VA

Veteran’s Disability Benefits Under Attack Again!

by Jere Beery Courtesy of Veterans Today

New garnishment policy enacted by the US Department of Treasury. Below is the explanation of the new policy enacted by the US Department of the Treasury. This legislation misses the mark on current federal garnishment protection under USC Title 42 §659.(h)(1)(B)(iii) for disabled veterans in receipt of disability compensation.

This language also contradicts the current language and protection under USC Title 38 §5301, which stipulate that any money traceable to VA disability is not considered property, nor subject to attachment, seizure, garnishment, levy under any legal process whatsoever. When civil courts garnish veterans’ disability under the premise of this new policy, it can be construed as double jeopardy, since federal laws already protect all benefit moneys against any garnishment order. The Department of Treasury would no legislative authority under the current federal statutes to garnish any veterans’ disability compensation, nor can it extend this fraudulent authority to the banks. To do so would constitute a violation of the federal laws that prohibit such legal process.

The U.S. Department of the Treasury recently enacted a new regulation that requires banks to protect federal benefits from being garnished. Before these protections were in place, exempting federal benefit payments from being garnished was hit or miss depending on your showing up in court or proving that the funds in your account were exempt. Here is what you need to know:


The new policy became effective May 1, 2011, and requires banks to review accounts when they receive a garnishment order. If the account contains federal benefits from any of the following sources, then the bank must protect those funds:

  • Social Security,
  • Supplemental Security Income,
  • Veterans Affairs, Railroad Retirement,
  • Railroad Unemployment Insurance
  • Civil Service Retirement System and Benefits from the Office of Personnel Management or
    Federal Employees Retirement System.

Well, at least a portion of them. In order for the federal benefits to qualify for protection, they must be directly deposited into the bank account. Federal benefit deposits made by check do not qualify for protection.

The protected amount would be based only on the federal benefit deposits identified in the previous two months immediately preceding the garnishment order. The bank is required to review the accounts of the person named in the garnishment order within two days after receipt of an order. For example, if during the look-back period the bank identifies two federal benefit deposits of $1,000 each, they are required to protect $2,000 of funds in the account.

The bank is required to review all accounts for the person named in the garnishment order, but is only required to protect funds in the account(s) where the federal benefits are direct deposited. So, if you move money from your checking account (where your VA benefit is direct deposited) into your saving account, the funds in your saving account are not protected from garnishment.

Any funds in the account in excess of the protected amount established during the two-month period preceding the garnishment order are not protected and are eligible for garnishment per the order received by the bank.
If the garnishment is to pay delinquent child support or a federal debt, then the above rules do not apply and all the funds are subject to the court order or IRS levy.

So, if your bank receives a garnishment order for you and your Veterans Affairs benefits are directly deposited, they should be protected. But, any money in the account in excess of two months of VA deposits or any money in other accounts at that bank would be fair game for the credit card company.

This new policy punishes veterans by seizing their disability compensation by attempting to redefine the garnishment protection under USC Title 42 §659 and USC Title 38 §5301. There are no special conditions on such garnishment for it protects any and all disability compensation disbursed by the Department of veterans Affairs. This language under this new law attempts to undermine the original intention of Congress under USC Title 38 §5301. It would not make sense for the federal government to implement laws that contradict other federal laws in such protection, consequently subjecting them to ambiguity in its interpretation.

It is hard to imagine that the other Veterans Service Organizations failed to understand the implications of this new law in its entirety, since, it does presents questions on whether current laws will supersede the existing federal statutes under USC Title 42 §659 and USC Title 38 §5301.

If you are a disabled veteran receiving service-connected disability compensation, you would be well advised to take your money out of the bank and bury it in a can in your backyard.

Contributing to this article;

Simon Alvarado, MSW

Legislative/Research analyst

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Agent Orange Benefits Paid

August 31, 2011
Courtesy of VA.gov

Over $2.2 Billion in Retroactive Agent Orange Benefits Paid to 89,000 Vietnam Veterans and Survivors for Presumptive Conditions

WASHINGTON – Secretary of Veterans Affairs Eric K. Shinseki announced today that more than $2.2 billion in retroactive benefits has already been paid to approximately 89,000 Vietnam Veterans and their survivors who filed claims related to one of three new Agent Orange presumptive conditions.

On August 31, 2010, the Department of Veterans Affairs (VA) amended its regulations to add ischemic heart disease, hairy cell leukemia and other chronic B-cell leukemias, and Parkinson's disease to the list of diseases presumed to be related to exposure to Agent Orange.

“As the President said to the American Legion yesterday, VA is committed to ensuring Veterans and their families receive the care and benefits they have earned,” said Secretary of Veterans Affairs Eric K. Shinseki.  “I encourage all potentially eligible Veterans to apply as soon as possible to preserve the most favorable effective date for payments.”

For new claims, VA may authorize up to one year of retroactive benefits if a Veteran can show that he or she has experienced one of those conditions since the date of the regulatory change.

VA has reviewed, and continues to review, thousands of previously filed claims that may qualify for retroactive benefits under a long-standing court order of the U.S. District Court for the Northern District of California in Nehmer vs. U.S. Veterans Administration.

“VA encourages survivors of Veterans whose death may be due to one of the three diseases to file a claim for dependency and indemnity compensation,” added Under Secretary for Benefits Allison A. Hickey.

Secretary Shinseki’s decision to add these conditions to the list of Agent Orange presumptive conditions was based on a study by the Institute of Medicine, which indicated a positive association between exposure to certain herbicides and the subsequent development of one or more of the three conditions.

Potentially eligible Veterans include those who were exposed based on duty or visitation in Vietnam or on its inland waterways between January 9, 1962, and May 7, 1975; exposed along the demilitarized zone in Korea between April 1, 1968, and August 31, 1971; or exposed due to herbicide tests and storage at military bases within and outside of the United States.

The Agent Orange Claims Processing System website located at https://www.fasttrack.va.gov/AOFastTrack/ may be used to submit claims related to the three new presumptive conditions.

The website makes it easy to electronically file a claim and allows Veterans and their physicians to upload evidence supporting the claim.  It also permits online viewing of claim status.

Beyond the three new presumptive disabilities, Veterans may file online at VA’s My-eBenefits web site at: https://www.ebenefits.va.gov/ebenefits-portal/ebenefits.portal.  They can check the status of their claim with a premium account (confirming their identity), and use a growing number of online services.

Servicemembers may enroll in My-eBenefits by using their Common Access Card at anytime during their military service, or before they leave during their Transition Assistance Program briefings.

Veterans may also enroll through their myPay or MyHealtheVet accounts by visiting their local VA regional office or Veteran Service Organization, or by calling 1-800-827-1000.

For more information about Agent Orange presumptives and disability compensation, go to http://www.publichealth.va.gov/exposures/agentorange/.  For questions about Agent Orange, Veterans may call VA’s Special Issues Helpline at 1-800-749-8387 and press 3.


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Veterans Day Honors Service, Sacrifice

Veterans Day Honors Service, Sacrifice

By Jim Garamone
American Forces Press Service

WASHINGTON, Nov. 9, 2011 – Until the 1960s, veterans groups used the red poppy as the symbol of Veterans Day. In Great Britain, it still is.

The symbol comes from a poem, “In Flanders Fields,” written by Canadian doctor John M. McCrae in 1915.

The first two verses of McCrae’s three-verse poem read:

“In Flanders fields the poppies blow
Between the crosses, row on row,

That mark our place; and in the sky

The larks, still bravely singing, fly

Scarce heard amid the guns below.”We are the Dead. Short days ago

We lived, felt dawn, saw sunset glow,

Loved and were loved, and now we lie

In Flanders fields.”

McCrae tended to the first victims of a German chemical attack on the British line at the Belgian town of Ypres during World War I.

The fields of Flanders, where some of the most horrific battles occurred, are now dotted with cemeteries filled with the war dead. If you fly across France and Belgium, you can still see the remains of the trench systems of the war.

The Great War of 1914 to 1918, called the first modern global conflict, was an enormous divide for the world. Millions of service members died in the conflict. Millions more civilians were also killed or died of disease.

It truly was a world war. Troops fought in Turkey, the Balkans, East Africa and the Middle East as well as in Russia and France. The war caused the Russian czar to fall and allowed Vladimir Lenin to build what would become the Soviet Union.

On Nov. 11, 1918, that war came to an end. At 11 a.m. the shooting stopped. A war that saw 20,000 British “Tommies” die in 20 minutes at the Battle of the Somme in 1916, was over. The war that saw 1,384,000 French “poilus” die, ended in the trenches that extended from Switzerland to the Belgian coast. Americans, who joined the war in 1917, lost more than 100,000 soldiers in the fighting.

The Germans had signed an armistice with the allies and to the generations of The Great War, Nov. 11 remains Armistice Day. For decades, veterans sold paper poppies to raise money for memorials and for the families of those who died in the war.

But The Great War was not, as President Woodrow Wilson hoped, “the war to end all wars.” World War II rose from its ashes, and millions more died to stop the mad dreams of dictators from 1939 to 1945. The U.S. Congress changed the name of Armistice Day to Veterans Day to honor all veterans after more blood was spilled during the Korean conflict to halt aggression.

Congress moved Veterans Day, along with most other federal holidays, to be celebrated on the closest Monday to the traditional date. But soon Congress reversed itself on Veterans Day because of public pressure to honor the powerful symbolism of the 11th hour of the 11th day of the 11th month.

This year, national observance of “11-11-11,” will include a presidential wreath-laying at Arlington National Cemetery and ceremonies around the country.

Along with two world wars and Korea, Americans and their allies have fought and died in Vietnam, Lebanon, Grenada, Panama, Kuwait, Iraq, Afghanistan and other places.

Today, the United States’ armed forces confront enemies around the world. U.S. soldiers, sailors, airmen, Marines and Coast Guardsmen defend freedom on station wherever, whenever they are called.

Those serving today are ensuring that they do not ignore the final verse of McCrae’s poem:

“Take up our quarrel with the foe:
To you from falling hands we throw

The torch; be yours to hold it high.

If ye break faith with us who die

We shall not sleep, though poppies grow

In Flanders fields.”

Editor’s Note: This is a slightly revised version of a story initial published by the American Forces Press Service in 2005.


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Divorce & Disability Payments

Disability Payments to Former Spouse?
Sgt. Shaft | August 09, 2011
Courtesy of Military.com



Dear Sgt Shaft:

I am in the middle of a divorce after 18 years of marriage. I receive service-connected disability from the VA from when I was in the Army. My wife and I were not married when I was in the service or when I started to receive my disability payments. I am now 100 percent disabled and unable to work. My wife has been working full time for the same company for the last 16 years.

In the divorce, she is asking to receive half of my disability payments for maintenance. Is there any federal law that states my disability cannot be used for maintenance?

I have a brother who served 23 years in the Marines and was married for the last 17 years of his enlistment. When he divorced last year, his wife was given a portion of his pension but was told she is not entitled to any of his disability payments. I would appreciate any help you can give me.

Thank you,
Gary P.
Via the Internet

Dear Gary,

There are currently no provisions for payment of any portion of a veteran's service-connected disability compensation to or on behalf of a divorced spouse except in limited circumstances involving military retirees. 38 USC 5301(a) exempts VA disability compensation from taxation, claims of creditors, attachment, levy or seizure, by or under any legal or equitable process.

However, in the case of military retirees who waive retired pay in lieu of VA compensation, the amount of VA compensation that is received is subject to garnishment for court-ordered child support or, in some cases, alimony. Only the amount of compensation equal to the waived retired pay is subject to this garnishment. Such garnishments are handled jointly by the VA Regional Office and the appropriate VA Office of Regional Counsel. If there were any minor or dependent children of the veteran in the custody of a divorced spouse, an apportionment of VA disability compensation could be awarded to the custodial parent for support of the veterans child or children.

Individuals can file a claim for an apportionment by filling out VA Form 21-0788, which can be found at http://www.vba.va.gov/pubs/forms/VBA-21-0788-ARE.pdf.

 

 


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