DOD PROPOSED REPORT ON H.R. 5027 (S. 2411) TO AMEND TITLE 10 UNITED STATES CODE TO MODIFY PROCEDURES FOR PAYMENT OF MILITARY RETIRED PAY TO SPOUSES AND FORMER SPOUSES OF MEMBERS OF THE UNIFORMED SERVICES IN COMPLIANCE WITH COURT ORDERS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90B01370R001201610022-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 21, 2016
• Document Release Date: December 23, 2008
• Sequence Number: 22
• Publication Date: April 19, 1984
• Content Type: MEMO

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Chrono
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
wAsHimmorc D.C. meot
April 19, 1984
LEGISLATIVE L >N~E 1I
TO: Legislative Liaison Officer
Central Intelligence Agency
Department of State
Department of Transportation
Office of Personnel Management
SPECIAL
SUBJECT: DOD proposed report on H.R. 5027 (S. 2411), "To amend
title 10, United States Code, to modify procedures for
payment of military retired pay to spouses and former
spouses of members of the uniformed services in
compliance with court orders."
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship to
the program of the President, in accordance with ONE Circular A-19.
A response to this request for your views is needed no later than
Monday, April 23, 1984 by COB. The House bill has been ordered reported,
and the Committee is holding the record open for DOD's report.
Questions should be referred to Chris Gamble
(395-3796 ) or to Hilda Schreiber
the legislative analyst in this office.
( 395-4650 )s
Naomi R. Sweeney for
Assistant Director for
Legislative Reference
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DEPARTMENT OF DEFENSE
OFFICEOF GENERAL COUNSEL
WASHINGTON. D.C. 20301
April 17, 1984
Honorable bavid A. Stockman
Director, Office of Management
and Budget
Washington, D. C. 20503
Dear Mr. Stockman:
The views of the Department of Defense have been requested on
H.R. 5027, 98th Congress, a bill, "To amend title 10, United
States Code, to modify procedures for payment of military retired
pay to spouses and former spouses of members of the uniformed
services ih compliance with court orders."
Advice is requested as to whether there is objection to the
presentation of the attached report to the Committee.
It is intended to submit an identical report on S. 2411,'the
identical bill in the Senate.
Sincerely,
Q4'~- r. -4'~
Robert F. Stoss
Assistant Director
Legislative Reference Service
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Honorable Melvin Price
Chairman
Committee on Armed Services
House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
Thank you for this opportunity to outline the views of the
Department of Defense concerning H.R. 5027, 98th Congress, a bill
"to amend title 10, United States Code, to modify procedures for
payment of military retired pay to spouses and former spouses of
members of the uniformed services in compliance with court
orders." The Department supports the intent of this legislation,
but offers an amended bill to achieve necessary due process
procedures for affected servicemembers as well as the intended
goals of the legislation.
The bill would require the Department to pay part of the
retired pay of former members to their former spouses without
regard to date of dissolution of marriage, actual compliance with
procedures required by law, or length of the marriage.
Currently, the Former Spouses' Protection Act (hereafter
called the Act) at 10 U.S.C. S 1408 is prospective. It prevents
the Department from making payments to former spouses of
retired pay under court orders that fail to specify payment from
retired pay if the order became final before June 26, 1981. The
bill would alter the prospective effect of the Act. The bill
would make the Act retroactive in effect with respect to payment
of retired pay for child support and alimony court orders. This
change would lift the burden of enforcing the orders now placed
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on former spouses. it would do so by removing the substantive
and procedural due process requirements of the Act.
The Act currently requires a former spouse whose decree does
not contain the specified retired pay language to return to court
to amend the decree or seek garnishment of the retiree's pay.
Procedural due process thus is afforded to the servicemember.
The removal of this protection would force the orders
automatically to be paid by the Department.
Proponents of the bill argue the courts of the states which
made the orders in the first place provide all due process that
is required by law, and that the bill merely makes state court
orders enforceable. These arguments overlook the essential
characteristics of the military community and ignore the nature
of divorce law as it is practiced in the courts that exercise
jurisdiction over military marriage dissolution.
Military lawyers have counselled numerous servicemembers who
became divorced without participation in the process. Regularly,
servicemembers overseas have received "divorces" in the mail.
Their first formal notice of the proceeding was the final decree.
Even though the decree is valid on its face, it could not be
enforced in contested proceedings because of the absence of
personal jurisdiction over the servicemember. The lawyer in
these circumstances would normally advise the servicemember-to
choose between seeking to secure marital or parental rights by
contesting the matter or protecting pay from claims under an
invalid decree by remaining a silent, acquiescing non-party to
the process.
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The bill would breathe a life into these decrees which they
never had or deserved, by permitting enforcement without any
judicial review. The only protection left for the servicemember
would be the provision of the Act which states "documents" filed
with the Department, or the court order,.must certify the court
complied with the Soldiers' and Sailors' Civil Relief Act of 1940
(50 U.S.C. App. 501 et se q.) which affords servicemembers the
opportunity to participate in suits against them. This provision
is inadequate even for purposes of due process under the current
Act. By permitting unspecified documents in lieu of the court
order to certify compliance, the procedural "protection" granted
is under the control of a single party to the proceeding who
stands to benefit from enforcement of the order. The Act should
be amended to require the court to certify that it did comply.
In addition, the provisions of the Act should ensure that
the court obtained personal jurisdiction over the servicemember.
For the reasons stated above, the Department of Defense
opposes enactment of the bill as it is presently written. A
proposed amendment which incorporates the views expressed above
is attached. The Department requests the Committee favorably
consider amending the subject bill as suggested and would support
passage of the amended bill.
The Office of Management and Budget advises that, from the
standpoint of the Administration's program, there is no objection
to the presentation of this report for the consideration of the
Committee.
Sincere]y,
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MENDMENT TO A.R. 5027, 98th Congress
After Section 1 of the bill add the following new sections and
renumber section 2 of the bill accordingly:
(a) Sec. 2. Subsection (b)(1)(D) of section 1408 of title
10 United States Code is amended to read as follows, "the court
certifies in the order or other documents served with the court
order that the member was represented by counsel of the member's
choice or that the requirements of the Soldiers' and Sailors'
Civil Relief Act of 1940 (50 U.S.C. App. 501 et se q.) were
complied with.
(b) Sec. 3. Subsection (c)(1) of such section is amended
by adding at the end after the word "court" and before the period
the following, "and may order payment of child support or alimony
from the retired or retainer pay payable to a member for pay
periods beginning after June 25, 1981." Sod
is amended by
(c) Sec. 4. Subsection (c)(4) of such AP-W~
inserting after the word "member" the first time it appears the
following, "or order payment of child support or alimony from
retired or retainer pay of the member."
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