| l When it comes to veterans,
there is no law of the United States, from federal
laws on down, VA law, state law, that protects the disabled veteran,
The
United States, as reported in the media lately, has abandon the
veteran,
along with everything else veteran. As a veterans’ advocate, I have
found,
they are right. State courts, having ruled, in violation of the law,
awarding
as alimony, VA disability compensation, not according to law, but on
the
personal whim of judges. Although United States law, being quite clear
on
the subject, an so stated in federal law, and eloquently stated in the
Supreme
Court ruling in Rose v. Rose (1986). But as veterans have found,
federal
laws, or Supreme Court rulings do not protect the disabled veteran in
divorce
court. All these laws, even state statutes are meaningless, when many veterans’ are faced with contempt, and jail time, for their belief in following, and upholding these very same laws, that the veteran supposedly thought he has working for him. Federal law, United States Supreme Court rulings, VA laws, state law. As you will see, these did not work for disabled Vietnam veteran Calvin Murphy. Working on behalf of these veterans’ who find themselves being bullied by state judges, I have searched the internet for state laws that run contrary to the judgment handed down in these Veterans Administration disability compensation alimony awards. What have I found? In state after state, you will find many statutes, using similar language as in federal veterans’ law (38 USC 5301), which exempts municipality or local law plans and pension’s “..shall not be subject to execution or attachment or to any legal process whatsoever and shall be unassignable.” Have your staff pick any outstanding veterans’ divorce case, in any state, involving Veterans Administration disability compensation being awarded as alimony. Searching state statutes, you will come up with what is wrong with the system. I’ll give you one excellent example of exactly what you will find. In Michigan, the unassignable clause is good for everybody in America, and any purpose, except when it comes to honoring the United States veteran for his service. What follows are references to Michigan statutes regarding non-assignability of benefits. This did not help Bear Lake, Michigan, disabled Vietnam veteran Calvin Murphy. He was sent to jail for contempt. Contempt for following the law, the not assignable clause (listed below), and not paying alimony claims from his Veterans Administration, and Social Security disability benefits. Non-assignable, is good for anything, and everybody else, but not Calvin Murphy. MICHIGAN VIETNAM VETERAN ERA BONUS ACT 35.1027 Payment of claim; claim not assignable or subject to garnishment, attachment, or levy of execution; rejection of claim; notice; appeal; certification of record; order allowing or denying claim; return of files and records; reapplication for benefits. MICHIGAN‘S VIETNAM VETERAN ERA BONUS ACT(excerpt) 370 of 1974. 38.1027. “Payment of claims; claim not assignable or subject to garnishment, attachment, or levy of execution; rejection of claim,, notice; appeals; certification of record; order allowing or denying claim; return of files and records; reapplication for benefits.” DEPARTMENT OF MILITARY AND VETERANS AFFAIRS MICHIGAN ARMY AND AIR NATIONAL GUARD HANDBOOK FOR RETIREES (INFORMATION AND BENEFITS UPON RETIREMENT) March 1, 2005 CHAPTER 12: UNIFORMED SERVICES FORMER SPOUSES’ PROTECTION ACT 12-4. General Information and Facts pertaining to the Act a. Depending on the court order, disposable retired pay is defined as retired pay to which a member is entitled less amounts:· Owed to the United States for previous overpayments of retired pay and for forfeiture required by law resulting from entitlement to retired pay. · Deducted from the retired pay as a result of forfeitures of retired pay ordered by a court martial or as a result of a waiver of retired pay required by law in order to receive compensation under Title 5 or Title 38. You will find this same language under 38 USC 5301, which he mentioned to Michigan’s 19th Circuit Court Judge Batzer, just before Calvin Murphy was led away in handcuffs. In compliance with Supreme Court rulings, a Michigan judgment in North v. North (2001) by Judge Donald Miller (Macomb County). Judgment was reversed Nov. 3, 2004. Ruling,.. that it was a blatant violation of veterans benefits Title 38 USC 5301. Judge Switalski refers to wording in Supreme Court ruling Mansel v. Mansel as the convincing basis for the reversal decision in the North v. North divorce case. This did not help Calvin Murphy. As you see nothing mattered to Judge Batzer. Although this next case is not about the subject at hand but illustrates why Calvin Murphy was sent to jail, and suggests a solution is needed to enforce veterans‘ rights, and why federal law must protect veterans against abusive state judges. They rule, as did judge Batzer, not according to law, but their personal bias. Last June (2005) in a landmark decision, Halbert v. Michigan, the U.S. Supreme Court struck down a 1999 Michigan law that barred judges from appointing attorneys to help poor people who have pled guilty to appeal their sentences. Despite the Halbert case, Kent County Circuit Court Judge Dennis C. Kolenda has denied appellate counsel to several poor people and stated that he has no obligation or intention of following the Supreme Court’s ruling in the future and characterized the ruling as “incorrect” and “illogical.” In addition, the Michigan Supreme Court has issued a series of orders in order to implement and follow the U.S. Supreme Court's decision in Halbert, but Judge Kolenda has also chosen to defy the Michigan Supreme Court." How can veteran, a disabled veteran Calvin Murphy, win in Michigan? He can't. After being interviewed by a local newspaper, after contacting newspapers and Radio-TV stations across Michigan, absolutely not one item printed, or broadcast. No one cares. After your considering what you have just read, and going through the motion, veterans’, along with Calvin Murphy expect nothing to happen which will change the status quo of veterans’ disability awards. Veterans have become accustomed to being ignored. I just hope I do not have to list your Veterans’ Disability Benefits Commission as to what’s wrong in America. William H. Heino Sr.  l This lawsuit should be of interest to ALL Americans – not just military. It deals with a breach of contract of monumental proportions and the results will affect all citizens of this country – one way or another. Below is the final amended complaint on the class action suit for retired military, reservists, national guards and their families who were on active duty prior to 1995. It is now in the public domain and can be disseminated widely. Notice has been served on all defendants. Anyone wishing to join the class action may contact us at:Campbell & Jones, Attorneys at
Law COVER PAGE COMPLAINT PLAINTIFFS herein above named hereby sue the United States of America for declaratory and injunctive relief and contract, statutory and exemplary damages on account of DEFENDANTS’ intentional breach of contract resulting in the loss of PLAINTIFFS’ bargained for, free medical and dental care for life. In the alternative, PLAINTIFFS plead equitable estoppel, which should grant Plaintiffs’ requested relief due to PLAINTIFFS’ detrimental reliance on DEFENDANTS’ promises, DEFENDANTS’ taking PLAINTIFFS’ property rights without just compensation, DEFENDANTS’ violation of the Equal Protection Clause of the Fifth Amendment of the United States Constitution, DEFENDANTS’ violation of the Due Process Clause of the Fifth Amendment to the U.S. Constitution, and DEFENDANTS’ violation of the Federal Deceptive Trade Practices Act. PLAINTIFFS claim Suspect Class status for judicial review of these claims and, in the alternative, Quasi-suspect Class. JURISDICTION 1. This Court has jurisdiction over this action pursuant to 28 U.S.C. §1331 and 1346(a) and in amounts of damages per person, if any, not to exceed $10,000.00. Each Plaintiff has exhausted his or her intra-service administrative remedies. VENUE 2. Venue is appropriate in this District because many of the PLAINTIFFS - class members reside within this district. PARTIES 3. The named PLAINTIFFS are all retired military service members, officers and enlisted, or the widows or dependents of retired service members, or dependents of active duty military personnel who are now required to make co-payments for their previous free medical care. See Appendix 1 for the names and information for all named PLAINTIFFS. 4. Defendants are the United States of America, the United States Department of Defense, the Secretary of Defense, the Honorable William Cohen in his official capacity, and the United States Congress and its individual members. FACTUAL BASIS OF THE COMPLAINT 5. Individual plaintiffs are retired military service members, reservists and national guards inducted into a branch of the Armed Forces prior to October 1, 1995, spouses of those retired or career military service members inducted prior to October 1, 1995, survivors of those retired military service members or active duty military service members inducted prior to October 1, 1995, and deceased prior to retirement, along with the legal dependents of all above referenced PLAINTIFFS. Each PLAINTIFF or sponsor of such PLAINTIFF was promised, as a means to induce a career in military service, that upon his or her retirement free military health care benefits (including prescription drugs and dental care) would continue for life. The continuation of these benefits, as reflected in the promises made to PLAINTIFFS, was to be without cost to the service member or his or her survivor or spouse as long as the service member or his or her spouse lived, and as long as any dependents remained legal dependents of the service member. 6. As an inducement and retention tool at the time of recruitment, commissioning, and again at reenlistment, it was the standard and customary practice of the several military departments to utilize broad and sweeping promises of a lifetime of free medical and dental care for the military service members and their dependents. This was an accepted practice, was stated and restated at every critical step in each service member’s career, and was made nationwide in a systematic and orchestrated manner under the color of authority of the United States government. On numerous occasions prior to 1995, PLAINTIFFS, who enlisted and reenlisted in a branch of military service in reliance upon the promises of lifetime free medical and dental care for themselves and their dependents, requested and received free medical care from various entities organized under the United States Department of Defense. This receipt of free medical benefits thereby constitutes a ratification by DEFENDANTS of the contractual promises and assurances of free medical and dental care. These promises constituted an “implied in fact” contract. Although 10 USC §1076(b), enacted in 1956, stipulates health care for retired military personnel will be on a “space available” basis, no actual notice was ever given to PLAINTIFFS, who continued to rely on the contractual promises made by agents of the government until October 1, 1995. 7. Beginning in 1799, Congress has given authority to the military departments to provide medical care to military service members, including military retirees (e.g. 5 U.S.C. 301). One example of this authorization occurred in 1956, when Congress specifically and explicitly authorized various military departments to provide free medical and dental care to military retirees at military treatment facilities on a “space available” basis, vis-à-vis the enactment of 10 U.S.C. In 1966, Congress directed military departments to consider the needs of retired military service members, their survivors and dependents when allotting space devoted to medical care. Article 5 U.S.C. § 301, gives the Secretaries of the various military service departments authority to implement 10 USC, and any other rules or regulations, however they deem appropriate for the management of their respective services. All of the Secretaries of the military services utilized that authority by actually providing the free medical care they had promised to their retired military personnel. 8. DEFENDANTS did affirm this promise and provided continued free medical benefits to PLAINTIFFS, principally in the form of providing treatment and other medical services at base facilities. PLAINTIFFS were treated on par with active duty military service personnel and their dependents prior to TRICARE, although by regulation they were not required to do so since they were technically operating on a “space available” basis. 9. Since the implementation of TRICARE on October 1, 1995, the promise of free, continued medical benefits has ended. Military retirees have increasingly been forced to rely on the Civilian Health and Medical Program for the Uniform Service (CHAMPUS) to meet their health care needs rather than receive the promised no-cost treatment directly in military facilities. CHAMPUS was designed to supplement and enhance health benefits for military service members and retirees, not replace them. In fact, the legislative intent of CHAMPUS was to provide an alternative medical plan for retirees and active duty alike, equal to, or greater than the highest Federal Employee Health Benefit Plan option (FEHMP), at a reduced cost. 10. In October of 1995, the Secretary of Defense promulgated regulations implementing TRICARE, a comprehensive redesign of the health benefits available to military retirees and their families. TRICARE provides military retirees with three health insurance-type options: TRICARE Prime, which is essentially a Health Maintenance Organization (HMO)-type plan; TRICARE Extra, which is essentially a preferred provider-type plan; and TRICARE Standard, which is essentially a continuation of the fee-for-service CHAMPUS plan. None of these options complies with the expressed legislative intent of CHAMPUS. 11. Medical care in military treatment facilities is available to military retirees on a space-available basis and is allotted according to established priorities. Active duty military service members have the highest priority for treatment in military treatment facilities, their dependents are next, followed by those military retirees who are eligible and pay for TRICARE Prime. 12. Active duty military are automatically enrolled in TRICARE Prime. TRICARE Prime is available to some military retirees who are eligible for Medicare, and according to recently enacted “TRICARE FOR LIFE”, they will have all costs incurred after Medicare picked up by TRICARE, with their only costs being the Medicare Part B premiums of $40.00 per month. Military retirees under age 65 may enroll in TRICARE Prime at a cost of about $240.00 per year, or $480.00 per year for family coverage. 13. In addition to paying annual enrollment fees, military retirees enrolled in TRICARE Prime who are not eligible for Medicare are assessed certain treatment and co-payment charges in excess of those charged active duty members for their families. 14. DEFENDANTS repeatedly promised PLAINTIFFS free lifetime medical care for themselves and their dependents as an inducement to devote their careers to military service. Continued medical care was thus a component of the compensation provided to PLAINTIFFS throughout retirement as consideration for their commitment to continue with military service. 15. While in the past DEFENDANTS honored this commitment, through its introduction and implementation of the TRICARE program, DEFENDANTS have breached said promise of free lifetime medical care. COUNT I DECLARATORY RELIEF 16. PLAINTIFFS incorporate herein and re-allege paragraphs 1-15 of this complaint. 17. The provision of continued medical care is a property right and entitlement as well as an element of deferred compensation, notwithstanding the Internal Revenue Service’s definition of deferred compensation, owed to each PLAINTIFF. 18. Through its implementation of TRICARE, DEFENDANTS have substantially diminished the coverage provided to military retirees and the value of that coverage. 19. DEFENDANTS’ diminution of the value of PLAINTIFFS’ deferred compensation is a violation of the Fifth Amendment Takings Clause. 20. Continued medical care is an essential element of the contract that PLAINTIFFS made with DEFENDANTS. 21. Any discontinuation or diminishment of that promised, lifetime, free medical care is a substantial breach of either an express or implied term of this contract. 22. DEFENDANTS discontinued the promised, lifetime, free medical care, thus the DEFENDANTS breached their contract with PLAINTIFFS. 23. Prior to the implementation of TRICARE, no other federal employees had ever had their retirement benefits diminished in the manner that PLAINTIFFS have. 24. Disparate treatment of similarly situated persons is a violation of the Fifth Amendment to the United States Constitution. 25. DEFENDANTS are treating PLAINTIFFS differently than all other similarly situated federal employees. 26. DEFENDANTS are therefore violating PLAINTIFFS’ Fifth Amendment Equal Protection rights. 27. Continued free medical care was/is an employee benefit sought for or acquired by military consumers, and was many times the basis of the bargain for this particular military contract as these continued free medical benefits were represented through DEFENDANTS’ recruiters, reenlistment counselors and other agents. 28. PLAINTIFFS incorporate herein and re-allege paragraph 21. 29. The withdrawal of an express or implied promise of lifetime free medical care is a violation of the Federal Deceptive Trade Practices Act. This is particularly true since DEFENDANTS continued to make those same promises of free medical care for life until 1995. 30. DEFENDANTS avoided their express or implied promises that formed the basis of the bargain in violation of the Federal Deceptive Trade Practices Act. 31. Military personnel are prohibited from fully and meaningfully exercising their political rights. For example, military personnel are prohibited from circulating petitions for redress of grievance, a First Amendment Constitutional right afforded to all other American citizens. Military personnel are also prohibited from endorsing any political candidates or participating in any political fund-raising activities. 32. Irrespective of the fact that any retired military person on inactive retirement status no longer has the identical First Amendment constraints as his active duty counterpart, a retired military person is not on par with a citizen who has never served in the military because of his or her career-long history of First Amendment disenfranchisement. 33. The promise of free medical care for life, the subject of this suit, was not made solely to those who freely and voluntarily joined the military, but also to those who were conscripted into the military, as an incentive to continue their military careers. 34. Veterans as a class of persons are a discrete and insular minority. 35. Veterans have been previously recognized as a discrete and insular, disenfranchised minority through programs such as civil service employment veteran hiring preference, the G.I. Bill in education, and the Veterans’ Land Board. 36. The constitutional standard of review for discrete and insular minorities is that of strict scrutiny. 37. PLAINTIFFS incorporate herein and re-allege paragraphs 31-36. 38. PLAINTIFFS pray that the standard under which this case will be reviewed will be that of strict scrutiny, due to the military veterans status as both a suspect class and a discrete and insular minority. 39. PLAINTIFFS have relied on DEFENDANTS’ promises of free lifetime medical care. 40. DEFENDANTS, until 1995, did in fact, reward military retirees with free medical care. 41. DEFENDANTS should be equitably estopped from their attempts to avoid fulfilling their obligations under such promises and/or contracts. 42. PLAINTIFFS have relied on the promises made by the federal government for free lifetime medical coverage, to their detriment. 43. DEFENDANTS should not be allowed to now claim that a contract did not exist, leaving no remedy to the millions of military service men and women who relied on said promises. 44. Public policy should dictate that a strong military be maintained for national security and defense. 45. Allowing the federal government to arbitrarily refuse to honor prior contracts and promises for lifetime free medical services would be detrimental to the security of the nation because it would hinder the military’s ability to attract new enlistees and retain quality service members in a career status, thereby diminishing the readiness of the military. 46. PLAINTIFFS argue that public policy should require the government to faithfully execute and perform the contracts and/or promises for lifetime free medical care to retired military personnel. 47. PLAINTIFFS have exhausted all of their administrative appeals and remedies. 48. PLAINTIFFS have applied for no-cost medical treatment and been denied, as evidenced by letters indicating a denial of service from Brooke Army Medical Center. WHEREFORE, PLAINTIFFS request that the Court declare that DEFENDANTS have taken PLAINTIFFS’ property without just compensation in violation of the Fifth Amendment, that DEFENDANTS have violated the Equal Protection Clause of the Fifth Amendment of the United States Constitution by treating PLAINTIFFS differently that all other federal employees, that DEFENDANTS have violated the Federal Deceptive Trade Practices Act by misrepresenting the terms of PLAINTIFFS’ employment contract, and that DEFENDANTS substantially breached their contract with PLAINTIFFS resulting in the loss of PLAINTIFFS’ free medical and dental care for life, and that DEFENDANTS are equitably estopped from reneging on their contract with PLAINTIFFS in that PLAINTIFFS detrimentally relied on the DEFENDANTS’ promises. Count II Damages 49. PLAINTIFFS incorporate herein and re-allege paragraphs 1-48 of this complaint. 50. DEFENDANTS’ actions in diminishing the value of PLAINTIFFS’ compensation is a taking of property for which PLAINTIFFS are entitled to just compensation. 51. DEFENDANTS’ breach of the enlistment contracts with PLAINTIFFS constitutes a breach of contract resulting in the loss of their free medical care for life. 52. DEFENDANTS’ withdrawal of PLAINTIFFS’ free Medicare for life constitutes a violation of the Equal Protection Clause of the Fifth Amendment to the United States Constitution as it pertains to PLAINTIFFS. 53. DEFENDANTS’ actions in allowing their agents to promise free medical care for life and to subsequently withdraw same is a violation of the Federal Deceptive Trade Practices Act. 54. DEFENDANTS’ implementation of TRICARE in 1995, was in violation of the Due Process Clause of the Fifth Amendment of the United States Constitution, inasmuch as PLAINTIFFS did not receive proper actual notice before their health care benefits were diminished, nor did PLAINTIFFS receive proper actual notice before their contract was breached with the enactment of Article 10 U.S.C. in 1956. 55. Plaintiffs claim suspect class status for the judicial review of this case and, in the alternative, Quasi-suspect class status. WHEREFORE, the individual PLAINTIFFS request that the Court award them as damages, compensation not to exceed $10,000 each, and that DEFENDANTS be estopped from denying free medical care to PLAINTIFFS in the future as injunctive relief. JURY DEMAND PLAINTIFFS demand trial by jury.
Respectfully submitted:
Philip Earl Jones |
