2008/11/05 00:00:00
By Tom Philpott
The government is appealing a recent decision by the U.S. Court of Federal Claims that found DoD unlawfully had withheld $150,000 combined in survivor benefit payments from three military widows.
If the claims court decision stands — as advocates for the widows think it will — DoD would be forced to restore full Survivor Benefits Plan (SBP) payments worth millions of dollars to several hundred surviving spouses.
The surviving spouses with a stake in the outcome all remarried after age 57, which made them eligible, under the Veterans Benefits Act of 2003 [Public Law 108-183] to have their Dependency and Indemnity Compensation (DIC) restored by the VA.
But the widows argued successfully to the claims court that the same law did something more; it exempted them from the dreaded dollar-for-dollar reduction in SBP payments that occurs if they also elect to receive DIC.
The widows contend that Congress made them the first group of surviving spouses eligible for “concurrent receipt” of DIC and SBP, thus taking a first step five years ago toward eventually eliminating the DIC-SBP offset for up to 44,000 surviving spouses.
At the claims court last June, Judge George W. Miller ruled that the facts and the law support the widows’ argument that the 2003 law “partially repealed” the SBP-DIC offset, targeting widows eligible who remarry after age 57.
Here is some background to understand the ruling.
Under SBP, military retirees forfeit a monthly premium so that, if they die first, their surviving spouse, or a dependent child, will continue to receive up to 55 percent of their retired pay as an SBP annuity. Some of these same survivors also qualify for DIC — monthly compensation from the VA payable to surviving spouse if a servicemember dies while on active duty or a military retiree dies of a service-related disability.
The long-time hitch for surviving spouses eligible for both SBP and DIC is that to elect to draw tax-free DIC, they must agree to have their SBP reduced by an equal amount. The basic DIC rate is $1,091 a month, with more added for each dependent child. Accepting DIC suspends SBP entirely for many widows.
Before Dec. 16, 2003, eligibility for DIC ended when a surviving spouse remarried. The Veterans Benefits Act of 2003 modified that rule, allowing DIC to continue or to be restored from that date forward, if the remarriage occurred when a surviving spouse was age 57 or older. This change made more than 12,000 widows eligible again for DIC — if they knew to apply for it.
Advocates for military widows said the 2003 law intentionally was worded so that widows who remarried after age 57 would be the first to receive both SBP and DIC. But DoD pay officials and lawyers interpreted the law so that all surviving spouses continued to have their SBP reduced or wiped out by their restored DIC.
In July 2007, three widows, backed by the Gold Star Wives of America, filed their claims court lawsuit. In June, Judge Miller ruled in their favor, saying Patricia R. Sharp, remarried widow of an Army brigadier general, was owed nearly $74,000; Margaret M. Haverkamp, remarried widow of a retired Army lieutenant colonel, was owed $46,300; and Iva Dean Rogers, remarried widow of an Army master sergeant, was owed nearly $32,400.
Government attorneys have said they will appeal that decision. Their appeal brief is due to the U.S. Court of Appeals for the Federal District by Nov. 21. They will argue anew that Congress didn’t intend, in passing the 2003 law, to allow concurrent receipt of SBP and DIC for such a narrow class of surviving spouses, those who remarry after age 57. Even if Congress had that intention, they will argue, the law is written too ambiguously to allow concurrent receipt.
Michael R. Franzinger, a lawyer representing the widows, says he is confident the appeals court will uphold Miller’s 25-page opinion, which persuasively details how Congress intended the law to be interpreted: to shield these remarried widows from any reduction in SBP when their DIC was restored.
Indeed, this columnist confirmed this intention of members and staff of the House Veterans’ Affairs Committee in January 2004. Rep. Henry E. Brown Jr. (R-S.C.), then chair of the personnel subcommittee, says: “We put a special paragraph in there to, basically, get [DoD] to do that. This was to get the camel’s nose under the tent, sort of like we did with concurrent receipt” for disabled retirees.
Judge Miller referred to Brown’s quote in his opinion, though he relied on legal arguments for his actual opinion.
“They’ll wait until we die,” says 83-year-old Rogers, with a laugh, when told it could take another year to get a final decision on the government’s appeal. “I believe it will eventually come through. My husband fought in three wars, and he was confident I would be taken care of. … I’m not going to give up.”
Franzinger said the government won’t restore any of the disputed SBP payments until its appeal is exhausted. But it likely will have to pay the widows interest back to the June date of Miller’s original ruling.
View past columns by Tom Philpott.
About the author: Tom Philpott is a freelance writer and syndicated news columnist. His column, "Military Update," appears in 48 daily newspapers throughout the United States and overseas.
Copyright Tom Philpott and Military Officers Association of America. All rights reserved.
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Colonel Howard |
11/26/2008 11:15:28 AM |
It is not "the government" appealing this decision. It is greedy politicians protecting their personal agendas. Call it what it is.
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Captain Freeborn |
11/26/2008 9:47:25 AM |
The average person would not have the $$ or the knowledge of how to bring this case forward..these women and the MOAA should be thanked many times over for keeping this issue up front.. I really question our "yes"..."our" goverment when they do the things that they do.. Doreen Freeborn
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Colonel Platt |
11/26/2008 9:35:28 AM |
This is sick. This government will bail out crooked, self-serving billionaires and irresponsible financial institutions but will fight to not pay a widow. Steal yourselves people because we are in trouble.
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Lieutenant Zanger (CHC, ret) |
11/20/2008 7:27:08 PM |
I can only hope that the incoming Administration will be less interested in balancing the Defense Budget by taking monsy from military widows and orphans. It's seems almost bizarre, particularly given how little money it is compared to the national debt and yet how great a difference it could make in the lives of women such as Iva Dean Rogers, who "kept the home fires burning" while her husband fought for America in three wars.
Despite the Republican Party's reputation for being strong on defense, these last years have shown a remarkable willingness to forget those same defenders the day they are disabled or retired. I hope and pray that the incoming Administration will see this issue in a more humanitarian light, and recognize that this isn't a government 'handout', but money promised, and earned.
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Ms. Patricia A Pope |
11/20/2008 4:51:52 PM |
Thank you for explaining the SBP/DIC offset so that everyone can understand. I am one of those widows who have had my SBP offset by DIC. This would have been a great help when I was sitting with my congressman and asking him to co-sponsor the bills that would do away with this injustice.
Patricia Pope
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General Baldwin |
11/20/2008 3:29:40 PM |
Excellent clarification of an often misunderstood situation for those widows who remarried over 57. I believe MOAA needs to push harder on the offset in general. For the widow of a retiree it means the "insurance policy" (which is how SBP was sold to retirees) is unilaterally devalued by the Govt. How is this justified? Please addreee this is a future article. Thank you for your good work.
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Colonel Giacoppe |
11/20/2008 2:19:01 PM |
Good research and writing. It also points out the callous and duplicitous behavior of this administration toward those who have actually served and their survivors.
G.Giacoppe, LTC, USA, Retired
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Mrs. Dawn Bates |
11/10/2008 3:48:27 PM |
This is an extremely interesting case. I am thankful that MOAA is providing continuing updates about this issue.
