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5 Lamplighter 1 (1994)

handle is hein.journals/lmplgt5 and id is 1 raw text is: Volume 5, Number 1 SPRING 1994 AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON LEGAL ASSISTANCE FOR MILITARY PERSONNEL Involuntary Allotments of Military Pqy- for Creditor Judgme ts, BRYANT S. BANES In the Fall 1993 LAMPlighter, legal assistance attorneys were advised of imminent legislation that would allow garnishment of federal salaries to satisfy any creditor judgment. Public Law (PL) 103-94 was enacted on October 6, 1993, and later signed into law by the President. Within certain limitations detailed in the new law, the pay of military members is now sub- ject to involuntary allotment for any indebtedness reduced to judgment.' The law also requires the Department of Defense (DoD) to promulgate implementing regulations within 180 days, that is, April 5, 1994. Accord- ingly, a DoD Involuntary Allotment Task Force2 has been working since last October to revise DoD Directive 1344.9, Indebtedness of Military Per- sonnel,3 to implement the new involuntary allotment law. One major problem with the new law is that it is poorly drafted and raises more questions than it answers. Re- gardless of how the DoD Directive is ultimately worded, many issues will be litigated in courts throughout the country in suits brought by creditors and debtors alike. For example, does the law subject the pay of military re- tirees to involuntary allotment? What is a military exigency? Clearly, it should include a deployment, but what about a field exercise, major in- spection, or charge of quarters? What is a judicial proceeding? What about absence from trial if the mili- Captain Banes is a legal assistance attorney in the Legal Assistance Division, Office of The Judge Advocate General, U.S. Army, Pentagon tary member's attorney is present? How about absence from a deposi- tion, or a hearing on pre- or post-trial matters? None of this is addressed in the new law. There may also be problems re- garding implementation of the law. If, as presently proposed, commanders are given the authority to determine whether a military exigency prevented a military member from attending a judicial proceeding-thereby deny- ing the request for involuntary allotment-how will such a determi- nation be made so as to afford due process to the military member? Or to the creditor? Will staff judge advocate legal ad- vice to the commander be required on each request? What will be the standard of proof? Will military mem- bers be entitled to the protections afforded by applicable state garnish- ment statutes? Will an involuntary allotment be available for judgments preceding the enactment date of PL 103-94? What remedies will be avail- able for improper collections? How will military-member debtors be pro- tected against creditors or debt collectors committing unfair con- sumer and commercial practices? Legal assistance attorneys will be advising clients on their options and rights on all of the foregoing issues. They will also have to examine every request for involuntary allotment from the client's perspective. Of course, the easiest situations are those in which the client disputes neither the underlying judgment nor the involun- tary allotment. The legal assistance attorney, however, must still review the legal issues that may be involved. The following provides an illustrative list of some possible defenses to in- voluntary allotments: a. The military member's rights under the Soldiers' and Sailors' Civil Relief Act were violated.' b. An exigency of military duty caused the military member to be absent from the judicial proceeding that resulted in the judgment upon which the involuntary allotment is based.5 c. Material information contained in the creditor's involuntary allotment application is false.6 d. The judgment has been fully or partially satisfied. e. The judgment has been amended, superseded, set aside, or is under appellate review. f. The military member has filed for protection from the creditor(s) un- der the bankruptcy laws of the United States, or the judgment debt has been discharged in bankruptcy.' g. Federal and/or state law pro- vides a legal impediment to the initiation of wage withholding against (Continued on page 6) The LAMPlighter Says .......... 2 Military Powers of Attorney .. 3 Ask the Tax Lady .............. 4 Homeless Veterans ........... 5 Chair's Column ................ 7 Income Tax Withholding 50th Anniversary ........... 7

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