Department of Veterans Affairs Act

The Department of Veterans Affairs Act of 1988 (Pub.L. 100-527) changed the former Veterans Administration, an independent government agency established in 1930, primarily at that time to see to needs of World War I, into a Cabinet-level Department of Veterans Affairs. It was signed into law by President Ronald Reagan on October 25, 1988, but actually came into effect under the term of his successor, George H. W. Bush, on March 15, 1989.

This bill passed into law over the objection of some of President Reagan's fellow Republicans, who were committed to preventing the U.S. federal government from expanding further. Many Republicans along with most Democrats ultimately supported it on the basis that it was really more of a reorganization than an expansion of government as the new department was in reality going to be doing very few things that the former Veterans Administration had not already been doing. There was the further consideration that military veterans constitute a large and powerful voting bloc and could easily be offended at the perceived slight that opposition to the bill might have implied.

The bill was introduced in direct response to the Supreme Court of the United States ruling of Rose v. Rose and the controversial issue of spousal support and child support awards. The history of Federal authority played a major role in ensuring our veterans and their families receive proper care. This struggle of State versus Federal authority goes to the core of every political debate and is the primary difference between Democrats and Republicans. However, the care of our soldiers is shared by both.

In 1950, We the People, saw the huge problems in all states caused by divorce and missing parents. A welfare program called AFDC was created. At that time, it was felt the States should maintain the legal authority over all other family law with only this small exception to that rule.

After 25 years of the States failing to provide child support services and instead relying on the federal AFDC system to take care of the children, this was severely changed. The 1975 legislation (Public Law 93-647) added a new part D to title IV of the Social Security Act. Known as the Child Support Enforcement Act, the Federal Government declared authority over the establishment and enforcement of child support.

Basic responsibility for administering the program is left to the States, but the Federal Government plays a major role in: dictating the major design features of State programs; funding, monitoring and evaluating State programs; providing technical assistance; and giving assistance to States in locating absent parents and obtaining support payments. The experience of the state on local economics and the needs of the children is still respected but the authority of all child support issues is now held by the federal government. The U.S. House publishes the Green Book on this program.

Just like many other federal agencies there is a top federal agency, and then the state level agencies are outsourced to the States to prevent redundancy. The Federal government runs the Department of Social Security but the state offices are run by the States and most claims processing is handled through those offices. This is the same for the Department of Health and Human services and many public assistance programs such as food stamps now known as SNAPs. For child support, the Administration for Children and Families was created under the US Department of Health and Human Services and oversees the State Offices of Child Support Enforcement.

In 1930 the Veterans Administration was created and put in charge of providing wounded soldiers compensation for the loss of ability to care for themselves and their families. Although a service connected disability is an eligibility requirement, under the strict language of the law these are "Compensation" funds not "disability". These funds are strictly excluded from the definition of "remuneration of employment" and can not be termed as disability.

The US Constitution legally separates soldiers from the public and the Bill of Right only applies to soldiers by excluding them and protecting the public from the military. The funds under Title 38 are similar to public assistance funds as they share the same reason for receiving them; to care for those who can not care for themselves. However, these funds are not welfare or a hand out. These are Compensation funds because the loss of ability was caused by the need to protect America, the lives of Americans and the rights soldiers earned for the public.

When a member of a veteran’s family is legally separated from the veteran they are separated from those laws and then fall under the public laws only. The complexities of divorce, separation and children living separate is a quagmire of complications. The response of the Veterans Administration was to ignore these issues and this brought the case of Rose v Rose to the Supreme Court of the United States.

In order for the Supreme Court of the United States to take on a divorce case it would need to pose a very important question and address a very important issue. The Tennessee Court of Appeals had ruled an award of spousal support could not be made using a veteran’s compensation. Divorce is the legal separate of the spouse and a veteran’s benefits are reduced for a spouse as one no longer exists. However, divorce does not separate children from either of the parents and a veteran continues to receive money for the care of their children.

When the case came to the Supreme Court of the United States it was not an argument over the need to pay child support or the amount of child support to be paid. The veteran adamantly agreed for the children to receive support. Instead it was about the Veterans Administration’s refusal to perform the division of the funds and send them to the children. The Federal process for performing this action is called Apportionment. The Veterans Administration was not accepting or processing claims for apportionments and in the eyes of America, was failing to perform child support for our disabled veterans.

With the Child Support Enforcement Act declaring Federal authority over a major area of Family Law traditionally held by the States was a huge controversy in and of itself. The loss of State rights in family law for the establishment and enforcement of child support was a point of heavy contention as it had been held by the States for 200 years and was taken because of their failures. To find out the Federal Agency in charge of the care of our veterans and their families was failing to perform this function was a huge embarrassment to the US Congress and the President.

The failure to perform apportionments by the previous Veterans Administration was identified under Title 38 of the United States Code. The court ruled the existing language of 38 USC § 211 did not provide sole authority, did not include state courts and only included eligibility questions. As a huge point the Court said the language didn’t even obligate the VA to do its job.

"The decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise.."

From the disgrace and failures of the Veterans Administration for not performing apportionments, Congress responded with extreme magnitude in comparison to previous cases. After Hisquierdo v. Hisquierdo for railroad retirement and McCarty v. McCarty for military retirement only a brief addition of family law to the USC was needed. For veterans and their families Congress responded with the Department of Veteran Affairs Act of 1988 and a complete rewrite of Title 38.

Congress addressed the issue of exclusive and sole authority over payments. The language of the new § 511 is inclusive of all courts not just federal. It precludes the States from making any decisions which affect these benefits not just the eligibility process. It obligates the USDVA to assert this authority and perform their duties.

“The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. Subject to subsection (b), the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.”

The US Congress also responded to the dissenting and self proclaimed “distained” opinion of Justice O’Conner. While the rest of the Supreme Court applauded the ruling by the Tennessee Appeals Court, she disagreed with the ruling in regards to spousal support. In her opinion, the previously § 3101, should not have been written so ironclad to provide protection against claims of spousal support. The response of Congress was to not change the wording when renumbered to § 5301. This wording has gone unchanged for over 20 years. In not so subtle words the U.S. Congress voiced their distain for the opinion as well.

Although this action made the legal processes clear, many state courts still try to debate the issue and several State Supreme Courts have gone head to head. State courts are now required to fully exclude any payments under Title 38 from the calculation and consideration of a support award and even exclude them from the legal process of disclosure. Several states continue to make wrongful rulings in violation of the law. One reason for this could be based on veterans consisting of a very small percentage of the population, less than 1%. The legal separation of soldiers from the public makes this area of law very rarely used. This combination gives people and lawyers, politically offended by the Federal Governments Authority over the States an opportunity to take advantage of disabled soldiers.

When a person separates from a Veteran, they need to go to a Veteran Services office and request help completing VA Form 21-4138. They can apply for benefit apportionment for themselves until a divorce is complete and any children in their custody. The US DHHS release IM-98-03 recommending parents take this to their State Office of Child Support to prevent a 2 week delay in processing caused by a request to determine the need of the child.

The parent needs to have the State Office of Child Support Enforcement complete form vba-21-4138. They need to specifically state how much child support is awarded based on NOT including any payments under Title 38. They also need to specifically identify a monetary amount for the “NEED” of the child. This can be either the state standard or based on special needs as long as documentation is provided. The USDVA needs this to see the exact amount needed to fill the gap. Any conditions of abuse or other factors of the child’s life should be included with documentation. These will also be taken into consideration.