Access to Justice the Unique Legal Needs of Our Nation’s Military Service Members and Vet
| Publication year | 2022 |
| Pages | 06 |
ACCESS TO JUSTICE
The Unique Legal Needs of our Nation's Military Service Members and Veterans
BY NICHOLAS MONCK, SABRA. M. JANKO, MICHAEL MCKENNA
The CBA Military and Veterans Affairs (MVA) Section seeks to help meet the specific needs of our community's active duty service members and veterans. The section manages the successful Colorado Lawyers for Colorado Veterans (CLCV) program, which recruits volunteers to provide pro bono legal services to veterans and disseminates information to veterans on topics such as disability benefits, taxes, housing, and family law. The section comprises not only attorneys but also active service members, veterans, relatives of military members, and others with an interest in the military and veteran community; all are invited to join and participate.
The MVA Section's attorney members and CLCV program volunteers practice across the spectrum of law. Although most legal practice for the military and veteran communities is the same as it is for civilians, unique military and veteran aspects exist within almost every legal practice area. To shed light on some of these unique issues, and to commemorate Veterans Day, several members of the section's executive council have contributed to this month's article:
■ In part 1, LT Nicholas Monck, an attorney in the US Navy Judge Advocate General's (JAG) Corps, addresses the role of JAG Corps attorneys in supporting the legal needs of active duty service members.
■ In part 2, Sabra Janko, a solo practitioner and retired Army JAG, discusses several family law issues unique to military members, veterans, and their family members.
■ And finally, in part 3, Michael McKenna, a retired Army JAG colonel and current Red Cross volunteer, provides a high-level overview of international humanitarian law and highlights a few lesser-known programs of the Red Cross.
Please note that the views and opinions presented in this article are those of the authors and do not necessarily represent the views of or imply endorsement by Department of Defense or its components.
Part 1: Representation for Active Duty J Service Members, by Nicholas Monck
Whether civil or criminal, simple or complex, or individual or part of a group, legal proceedings can be stressful for any party involved. When that party is a military member, that stress can affect not only the service member but also the unit. A service member involved in a court case or contract dispute may struggle to focus on the mission or training. That's why the military understands that providing free legal aid to soldiers, sailors, marines, airmen, and guardians is critical to mamtaining military readiness and supporting national defense.
JAG Corps attorneys, also known as judge advocates or JAGs, are available at bases and on ships around the world to serve the legal needs of the nation's more than one million active duty service members and their dependents. From family law to landlord-tenant disputes to criminal defense, JAGs help military personnel navigate the legal system worldwide.
The JAG Corps traces its lineage to the appointment of Lieutenant Colonel William Tudor as the first judge advocate of the Army by the Second Continental Congress in 1775. During World War II, some 2,000 attorneys served in legal billets throughout the conflict. Though military lawyers had long provided some legal services to troops, in 1984 Congress formally directed all the JAG Corps communities to provide legal assistance to active duty service members, along with their traditional role of advising commanders on the law of war and rules of engagement.[1] As active duty service members themselves, JAGs understand the unique complexities of military lives and are better able to serve the needs of fellow military members, particularly in remote or overseas locations.
Since the formalization of JAG Corps' legal assistance role, family law has been at the fore-front of legal services offered.[2] Estate planning and marriage dissolution are the two primary practice areas, but judge advocates also assist with adoption, immigration, and child support cases.
Aside from domestic matters, JAG Corps attorneys play a critical role in helping service members assert their rights under the Servicemembers Civil Relief Act (SCRA).[3] This law provides certain legal protections to those serving in the military on active duty orders. Notably, SCRA permits service members to break residential rental agreements, vehicle leases, or cell phone contracts without penalty when they receive permanent change of station orders.[4] JAGs regularly advise on SCRA rights and help service members prepare the required documents.
Additionally, one of the most common legal services that judge advocates and military paralegals provide are powers of attorney for deploying or moving service members. The House Armed Services Committee Report that accompanied the National Defense Authorization Act for Fiscal Year 1994 acknowledged the importance of these documents:
The past experience of service members and their dependents who executedpowers of attorney in advance of recent military operations has shown that some states and territories have refused to honor those powers of attorney because they were not executed in accordance with state or territo -rial legal requirements. The failure to honor these documents has created substantial hardships for military families.[5]
Judge advocates can counsel service members on the pros and cons of powers of attorney, draft these vital documents, and then notarize them. Critically, 10 USC § 1044b exempts military powers of attorney documents from any form, substance, formality, or recording requirements specifiedby state law, andrequires a military power of attorney to be given the same legal effect as a power of attorney executed according to state law.[6]
Judge advocates can also provide limited scope representation andhelp service members litigate minor civil disputes. Predatory lending, vehicle lemon law, small claims, construction defect, taxes, and name changes are just a few of the legal issues JAG Corps attorneys advise on.[7]
When a military base is impacted by a natural disaster, the JAG Corps will send a unit of specially trained legal assistance attorneys to assist military families with claims paperwork. JAGs also support units and ships preparing to deploy by providing legal briefs and helping service members get their personal affairs in order.
Additionally, JAGs counsel service members who are under investigation or accused of misconduct. Similar to the civilian system, a service member has the right to remain silent and the right to consult with an attorney during an interrogation. If criminal charges are brought against a service member, a JAG Corps defense attorney will be assigned to represent them free of charge at a military court-martial. Many service members are also entitled to JAG Corps representation during an administrative separation board, which can separate them from the militaryfor minor ornon-criminal misconduct.
Whether assisting pilots, radio operators, or riflemen, judge advocates handle the many legal needs active duty service members face every day. From Bahrain to Germany to Colorado, they provide a global force to serve those who have been called to serve their nation.
Part 2: Family Law Issues Unique to Service Members and Veterans, by Sabra Janko
Where service members and veterans are involved, federal law occasionally governs matters traditionally governed by state law. This is because (1) service members and veterans often receive payments that are federally governed, (2) the military system itself offers quasi-judicial rem -edies, and (3) military members may reside on installations under federal jurisdiction or overseas. This creates some unique considerations for family law attorneys assisting service members, veterans, and their families. Several key areas are discussed below.
Military Disability Payments
Once their service is complete, those who have served in the military can apply for a Veterans Administration (VA) disability rating based on service-connected disabilities. The VA disability rating differs from a Social Security disability rating, which is based on a negative impact on a p erson's current ability to work in the national economy. There are military veterans working full time with a 100% VA disability rating.
The rating and its associated tax-free pay are intended to compensate veterans for physical or mental disabilities stemming from their service to their county. For example, combat veterans sometimes experience post-traumatic stress disorder (PTSD) related to their combat service. The rating compensates them for the disability but does not indicate their inability to work in the national econorny. While militaryretirernentpay is taxable by the federal government, disability pay is not.[8] State regulations differ with regard to taxation of military retirernent pay.[9]
Disabilitypay is considered income for purposes of spousal and child support.[10] However, the disability portion of a military retirement is not considered a marital asset that can be divided upon dissolution.[11] A retiree who has a 40% disability rating or lower may waive a portion of military retirement pay to receive tax-free disability payments in the waived amount.[12]In Colorado, courts cannot indemnify a spouse for the waiver portion through other means.[13]
Child or Spousal Support Payments
The military system offers quasi-judicial remedies not available in the civilian sector. For example, a practitioner familiar with the military system canhelp amilitary spouse obtain spousal and child support without ever setting...
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