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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