WHAT IS “APPORTIONMENT?”

September 15, 2015

Dear Editor:

For decades, a flawed federal agency directive has cost disabled veterans their benefits.

September 25, 1998:  TO STATE AGENCIES ADMINISTERING CHILD SUPPORT ENFORCEMENT PLANS UNDER TITLE IV-D OF THE SOCIAL SECURITY ACT AND OTHER INTERESTED INDIVIDUALS.
SUBJECT: Obtaining financial support for children from benefits paid by the Department of Veterans Affairs.
BACKGROUND: Section 459 [42 USC 659] “Consent By The United States to income withholding, garnishment.. for enforcement of child support.. ], of the Social Security Act, as amended provides for the garnishment of certain Federal payments for the enforcement of child support and alimony obligations…”

Directive enforcement based on Example #2. Department of Veterans Affairs…  Pursuant to 38 USC 5307 [Apportionment], and 38 CFR 3.450(a)(1)(ii), “provide that, if the veteran is not residing with his or her spouse, or if the veteran’s children are not residing with the veteran and the veteran is not reasonably discharging his or her responsibility for the spouse’s or children’s support.”

The Department of Health and Human Services Child Support Enforcement agency reasoned that 38 USC 5307 “apportionment” is an enforcement issue under their directive to State agencies. SUBJECT: “Obtaining financial support for children from benefits paid by the Department of Veterans Affairs.”

38 USC 5307 is a Department of Veterans Affairs internal administrative law. Apportionment is “as may be prescribed by the Secretary,”  having absolutely nothing whatsoever to do with being in a courtroom or an issue of garnishment. Under the “apportionment” statute “as may be prescribed by the Secretary,” there is no enforcement, only administration.

Anybody taking the time to read the statute, 38 USC Sec. 5307 Apportionment of Benefits, can see, it concerns a disabled veteran who is institutionalized, hospitalized, incompetent or unable for whatever reason to make decisions personally.  It contemplates the inability to function, with the veteran restricted in discharging his or her normal personal business, household, and daily responsibilities. Therefore, any pension, compensation, or dependency and indemnity compensation may be apportioned, not by any court, but as “prescribed by the Secretary.”

Since 1998, and most likely, beyond, lawyers, activist state court judges, and plaintiffs refer to this United States Department of Health and Human Services Office of Child Support Enforcement directive for guidance and preparation, a directive based on purposely false, sloppy, inaccurate information (apportionment), deliberately used to mislead disabled veterans and their attorneys and setting the stage to partnership with every overbearing activist state court judge in the country to administer their justice.

Disabled veteran Charlie Wayne Rose (1987) was done in by the United States Supreme Court, the State of Tennessee, the Department of Health and Human Services Office of Child Support agency, and the Congressional Act 38 CFR 3.450 (a)(1)(ii): “The regulations broadly authorize apportionment if “the veteran is not reasonably discharging his or her responsibility for the . . . children’s support.”  Rose, a disabled veteran, triple amputee, blind in one eye, requiring constant care, was jailed, lost his appeal in 38 USC 5301 protections of his VA disability compensation claim. It was this agency, Office of Child Support Enforcement, that provided highly inaccurate, false, and misleading information in a very questionable and inaccurate directive. “Apportionment” was used in the U.S. Supreme Court argument Rose v Rose 37 times. And it worked!

If this directive wasn’t a sloppy, careless preparation of regulation law, it was then intentional, in order to mislead. Lost forever is veterans’ rights in protection of VA disability benefits, to fair and equal justice, by a regulation rewritten to falsely accuse and irresponsibly suggesting, “the veteran is not reasonably discharging his or her responsibility for the spouse’s or children’s support.”

Although “apportionment” has only one special meaning through the Congressional legislative intent in U.S. Code (38 USC 5307), the court, in redefining its special specific purpose in order to force judgment, lacked the compulsory constitutionally-required legislative intent by Congress!

Regretfully, it took this issue of a groundless, manufactured directive to reveal another means of the further undoing of veterans’ benefits by clever, creative, regulatory writing. This is not about child support, as there are other legal remedies available. It’s about the illegal expropriation of VA benefits and protections of the 14th Amendment.

As a veteran of the Korean conflict era, I am neither disabled nor divorced.

William Heino Sr.

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  1. If it is “V.A. Disability” pay, it is my understanding that it can NOT be “apportioned” or any thing else. It is solely the veteran’s personal monies to use at his or her discretion. Other benefits maybe, but not disability pay.