|l When it comes to veterans,
there is no law of the United States, from federal
laws on down, VA law, state law, that protects the disabled veteran,
United States, as reported in the media lately, has abandon the
along with everything else veteran. As a veterans’ advocate, I have
they are right. State courts, having ruled, in violation of the law,
as alimony, VA disability compensation, not according to law, but on
personal whim of judges. Although United States law, being quite clear
the subject, an so stated in federal law, and eloquently stated in the
Court ruling in Rose v. Rose (1986). But as veterans have found,
laws, or Supreme Court rulings do not protect the disabled veteran in
All these laws, even state statutes are meaningless, when many
are faced with contempt, and jail time, for their belief in following,
upholding these very same laws, that the veteran supposedly thought he
working for him. Federal law, United States Supreme Court rulings, VA
state law. As you will see, these did not work for disabled Vietnam
Working on behalf of these veterans’ who find themselves being bullied
state judges, I have searched the internet for state laws that run
to the judgment handed down in these Veterans Administration disability
alimony awards. What have I found?
In state after state, you will find many statutes, using similar
as in federal veterans’ law (38 USC 5301), which exempts municipality
local law plans and pension’s “..shall not be subject to execution or
or to any legal process whatsoever and shall be unassignable.” Have
staff pick any outstanding veterans’ divorce case, in any state,
Veterans Administration disability compensation being awarded as
Searching state statutes, you will come up with what is wrong with the
I’ll give you one excellent example of exactly what you will find. In
the unassignable clause is good for everybody in America, and any
except when it comes to honoring the United States veteran for his
What follows are references to Michigan statutes regarding
of benefits. This did not help Bear Lake, Michigan, disabled Vietnam
Calvin Murphy. He was sent to jail for contempt. Contempt for following
law, the not assignable clause (listed below), and not paying alimony
from his Veterans Administration, and Social Security disability
Non-assignable, is good for anything, and everybody else, but not
MICHIGAN VIETNAM VETERAN ERA BONUS ACT
35.1027 Payment of claim; claim not assignable or subject to
attachment, or levy of execution; rejection of claim; notice; appeal;
of record; order allowing or denying claim; return of files and
reapplication for benefits.
MICHIGAN‘S VIETNAM VETERAN ERA BONUS ACT(excerpt) 370 of 1974. 38.1027.
of claims; claim not assignable or subject to garnishment, attachment,
levy of execution; rejection of claim,, notice; appeals; certification
record; order allowing or denying claim; return of files and records;
DEPARTMENT OF MILITARY AND VETERANS AFFAIRS
MICHIGAN ARMY AND AIR NATIONAL GUARD
HANDBOOK FOR RETIREES
(INFORMATION AND BENEFITS UPON RETIREMENT) March 1, 2005
CHAPTER 12: UNIFORMED SERVICES FORMER SPOUSES’ PROTECTION ACT
12-4. General Information and Facts pertaining to the Act
a. Depending on the court order, disposable retired pay is defined as
retired pay to which a
member is entitled less amounts:· Owed to the United States for
overpayments of retired pay and for forfeiture required by law
from entitlement to retired pay.
· Deducted from the retired pay as a result of forfeitures of
retired pay ordered by a
court martial or as a result of a waiver of retired pay required by law
in order to
receive compensation under Title 5 or Title 38.
You will find this same language under 38 USC 5301, which he mentioned
Michigan’s 19th Circuit Court Judge Batzer, just before Calvin Murphy
led away in handcuffs.
In compliance with Supreme Court rulings, a Michigan judgment in North
North (2001) by Judge Donald Miller (Macomb County). Judgment was
Nov. 3, 2004. Ruling,.. that it was a blatant violation of veterans
Title 38 USC 5301. Judge Switalski refers to wording in Supreme Court
Mansel v. Mansel as the convincing basis for the reversal decision in
North v. North divorce case. This did not help Calvin Murphy. As you
nothing mattered to Judge Batzer.
Although this next case is not about the subject at hand but
why Calvin Murphy was sent to jail, and suggests a solution is needed
enforce veterans‘ rights, and why federal law must protect veterans
abusive state judges. They rule, as did judge Batzer, not according to
but their personal bias.
Last June (2005) in a landmark decision, Halbert v. Michigan, the U.S.
Court struck down a 1999 Michigan law that barred judges from
attorneys to help poor people who have pled guilty to appeal their
Despite the Halbert case, Kent County Circuit Court Judge Dennis C.
has denied appellate counsel to several poor people and stated that he
no obligation or intention of following the Supreme Court’s ruling in
future and characterized the ruling as “incorrect” and “illogical.”
In addition, the Michigan Supreme Court has issued a series of orders
order to implement and follow the U.S. Supreme Court's decision in
but Judge Kolenda has also chosen to defy the Michigan Supreme Court."
How can veteran, a disabled veteran Calvin Murphy, win in Michigan? He
After being interviewed by a local newspaper, after contacting
and Radio-TV stations across Michigan, absolutely not one item printed,
broadcast. No one cares. After your considering what you have just
and going through the motion, veterans’, along with Calvin Murphy
nothing to happen which will change the status quo of veterans’
awards. Veterans have become accustomed to being ignored. I just hope I
not have to list your Veterans’ Disability Benefits Commission as to
wrong in America.
William H. Heino Sr.
l This lawsuit
should be of interest to ALL Americans –
military. It deals with a
breach of contract of monumental proportions and the results will
citizens of this country – one way or another.
Below is the final amended complaint on the class action
for retired military, reservists, national guards and their families
were on active duty prior to 1995. It is now in the public domain
can be disseminated widely.
been served on all defendants. Anyone wishing to join the class
may contact us at:
Campbell & Jones, Attorneys at
126 East Main Plaza
San Antonio, Texas 78205
Phone: (210) 224-1923; Fax: (210)
PLAINTIFFS herein above named hereby
United States of America for declaratory and injunctive relief and
statutory and exemplary damages on account of DEFENDANTS’ intentional
of contract resulting in the loss of PLAINTIFFS’ bargained for, free
and dental care for life.
In the alternative, PLAINTIFFS plead
estoppel, which should grant Plaintiffs’ requested relief due to
detrimental reliance on DEFENDANTS’ promises, DEFENDANTS’ taking
property rights without just compensation, DEFENDANTS’ violation of the
Equal Protection Clause of the Fifth Amendment of the United States
DEFENDANTS’ violation of the Due Process Clause of the Fifth Amendment
the U.S. Constitution, and DEFENDANTS’ violation of the Federal
Trade Practices Act. PLAINTIFFS claim Suspect Class status for
review of these claims and, in the alternative, Quasi-suspect Class.
This Court has jurisdiction over this action pursuant to 28 U.S.C.
§1331 and 1346(a) and in amounts of damages per person, if any,
not to exceed
$10,000.00. Each Plaintiff has exhausted his or her intra-service
Venue is appropriate in this District because many of the PLAINTIFFS -
class members reside within this district.
The named PLAINTIFFS are all retired military service members, officers
and enlisted, or the widows or dependents of retired service members,
dependents of active duty military personnel who are now required to
co-payments for their previous free medical care. See Appendix 1
the names and information for all named PLAINTIFFS.
Defendants are the United States of America, the United States
Department of Defense, the Secretary of Defense, the Honorable William
Cohen in his
official capacity, and the United States Congress and its individual
FACTUAL BASIS OF THE COMPLAINT
Individual plaintiffs are retired military service members, reservists
and national guards inducted into a branch of the Armed Forces prior to
October 1, 1995, spouses of those retired or career military service
members inducted prior to October 1, 1995, survivors of
those retired military service members or active duty military service
members inducted prior to October 1, 1995, and deceased prior to
retirement, along with the legal dependents of all above referenced
PLAINTIFFS. Each PLAINTIFF or sponsor of such PLAINTIFF was
promised, as a means to induce a career in military service, that upon
his or her retirement free military health care benefits (including
prescription drugs and dental care) would continue for life. The
continuation of these benefits, as reflected in the promises made to
PLAINTIFFS, was to be without cost to the service member or his or her
survivor or spouse as long as the service member or his or her spouse
lived, and as long as any dependents remained legal dependents of the
As an inducement and retention tool at the time of recruitment,
commissioning, and again at reenlistment, it was the standard and
customary practice of
the several military departments to utilize broad and sweeping promises
a lifetime of free medical and dental care for the military service
members and their dependents. This was an accepted practice, was stated
and restated at every critical step in each service member’s career,
and was made nationwide in a systematic and orchestrated manner under
the color of authority of the United States government. On
numerous occasions prior to 1995, PLAINTIFFS, who enlisted and
reenlisted in a branch of military service in reliance upon the
promises of lifetime free medical and dental care for themselves and
dependents, requested and received free medical care from various
entities organized under the United States Department of Defense.
This receipt of free medical benefits thereby constitutes a
ratification by DEFENDANTS of the contractual promises and assurances
of free medical and dental care. These promises constituted an
“implied in fact” contract. Although 10
USC §1076(b), enacted in 1956, stipulates health care for retired
personnel will be on a “space available” basis, no actual notice was
given to PLAINTIFFS, who continued to rely on the contractual promises
by agents of the government until October 1, 1995.
Beginning in 1799, Congress has given authority to the military
departments to provide medical care to military service members,
retirees (e.g. 5 U.S.C. 301). One example of this authorization
in 1956, when Congress specifically and explicitly authorized
military departments to provide free medical and dental care to
retirees at military treatment facilities on a “space available” basis,
vis-à-vis the enactment of 10 U.S.C. In 1966, Congress
directed military departments to consider the needs of retired military
service members, their survivors and dependents when allotting space
devoted to medical care. Article 5 U.S.C. § 301, gives the
Secretaries of the various military service departments authority to
implement 10 USC, and any other rules or regulations, however they deem
appropriate for the management of their respective services. All
of the Secretaries of the military services utilized that authority by
actually providing the free medical care they had promised to their
retired military personnel.
DEFENDANTS did affirm this promise and provided continued free medical
benefits to PLAINTIFFS, principally in the form of providing treatment
and other medical services at base facilities. PLAINTIFFS were
treated on par with active duty military service personnel and their
dependents prior to TRICARE, although by regulation they were not
required to do so since they were technically operating on a “space
Since the implementation of TRICARE on October 1, 1995, the promise of
free, continued medical benefits has ended. Military retirees
have increasingly been forced to rely on the Civilian Health and
Medical Program for the Uniform Service (CHAMPUS) to meet their health
care needs rather than receive the promised no-cost treatment directly
in military facilities. CHAMPUS was designed to supplement and
enhance health benefits for military service members and retirees, not
replace them. In fact, the legislative intent of CHAMPUS was to
provide an alternative medical plan for retirees and active duty alike,
equal to, or greater than the highest Federal Employee Health Benefit
Plan option (FEHMP), at a reduced cost.
In October of 1995, the Secretary of Defense promulgated regulations
implementing TRICARE, a comprehensive redesign of the health benefits
available to military retirees and their families. TRICARE
provides military retirees with three health insurance-type options:
TRICARE Prime, which is essentially
a Health Maintenance Organization (HMO)-type plan; TRICARE Extra, which
is essentially a preferred provider-type plan; and TRICARE Standard,
which is essentially a continuation of the fee-for-service CHAMPUS
plan. None of these options complies with the expressed
legislative intent of CHAMPUS.
Medical care in military treatment facilities is available to military
retirees on a space-available basis and is allotted according to
established priorities. Active duty military service members have
the highest priority for treatment in military treatment facilities,
their dependents are next, followed by those
military retirees who are eligible and pay for TRICARE Prime.
Active duty military are automatically enrolled in TRICARE Prime.
TRICARE Prime is available to some military retirees who are eligible
Medicare, and according to recently enacted “TRICARE FOR LIFE”, they
have all costs incurred after Medicare picked up by TRICARE, with their
costs being the Medicare Part B premiums of $40.00 per
Military retirees under age 65 may enroll in TRICARE Prime at a cost of
$240.00 per year, or $480.00 per year for family coverage.
In addition to paying annual enrollment fees, military retirees
in TRICARE Prime who are not eligible for Medicare are assessed certain
treatment and co-payment charges in excess of those charged active duty
members for their families.
DEFENDANTS repeatedly promised PLAINTIFFS free lifetime medical care
themselves and their dependents as an inducement to devote their
to military service. Continued medical care was thus a component
the compensation provided to PLAINTIFFS throughout retirement as
for their commitment to continue with military service.
While in the past DEFENDANTS honored this commitment, through its
introduction and implementation of the TRICARE program, DEFENDANTS have
promise of free lifetime medical care.
PLAINTIFFS incorporate herein and re-allege paragraphs 1-15 of this
The provision of continued medical care is a property right and
entitlement as well as an element of deferred compensation,
notwithstanding the Internal Revenue Service’s definition of deferred
compensation, owed to each PLAINTIFF.
Through its implementation of TRICARE, DEFENDANTS have substantially
diminished the coverage provided to military retirees and the value of
DEFENDANTS’ diminution of the value of PLAINTIFFS’ deferred
is a violation of the Fifth Amendment Takings Clause.
Continued medical care is an essential element of the contract that
PLAINTIFFS made with DEFENDANTS.
Any discontinuation or diminishment of that promised, lifetime, free
medical care is a substantial breach of either an express or implied
term of this contract.
DEFENDANTS discontinued the promised, lifetime, free medical care, thus
the DEFENDANTS breached their contract with PLAINTIFFS.
Prior to the implementation of TRICARE, no other federal employees had
ever had their retirement benefits diminished in the manner that
Disparate treatment of similarly situated persons is a violation of the
Fifth Amendment to the United States Constitution.
DEFENDANTS are treating PLAINTIFFS differently than all other similarly
situated federal employees.
DEFENDANTS are therefore violating PLAINTIFFS’ Fifth Amendment Equal
Continued free medical care was/is an employee benefit sought for or
acquired by military consumers, and was many times the basis of the
bargain for this particular military contract as these continued free
medical benefits were represented through DEFENDANTS’ recruiters,
reenlistment counselors and other agents.
PLAINTIFFS incorporate herein and re-allege paragraph 21.
The withdrawal of an express or implied promise of lifetime free
care is a violation of the Federal Deceptive Trade Practices Act.
is particularly true since DEFENDANTS continued to make those same
promises of free medical care for life until 1995.
DEFENDANTS avoided their express or implied promises that formed the
basis of the bargain in violation of the Federal Deceptive Trade
Military personnel are prohibited from fully and meaningfully
their political rights. For example, military personnel are
from circulating petitions for redress of grievance, a First Amendment
Constitutional right afforded to all other American citizens.
Military personnel are also prohibited from endorsing any political
candidates or participating in
any political fund-raising activities.
Irrespective of the fact that any retired military person on inactive
retirement status no longer has the identical First Amendment
constraints as his active duty counterpart, a retired military person
is not on par with a citizen
who has never served in the military because of his or her career-long
history of First Amendment disenfranchisement.
The promise of free medical care for life, the subject of this suit,
not made solely to those who freely and voluntarily joined the
but also to those who were conscripted into the military, as an
to continue their military careers.
Veterans as a class of persons are a discrete and insular minority.
Veterans have been previously recognized as a discrete and insular,
disenfranchised minority through programs such as civil service
employment veteran hiring preference, the G.I. Bill in education, and
the Veterans’ Land Board.
The constitutional standard of review for discrete and insular
minorities is that of strict scrutiny.
PLAINTIFFS incorporate herein and re-allege paragraphs 31-36.
PLAINTIFFS pray that the standard under which this case will be
will be that of strict scrutiny, due to the military veterans status as
a suspect class and a discrete and insular minority.
PLAINTIFFS have relied on DEFENDANTS’ promises of free lifetime medical
DEFENDANTS, until 1995, did in fact, reward military retirees with free
DEFENDANTS should be equitably estopped from their attempts to avoid
fulfilling their obligations under such promises and/or contracts.
PLAINTIFFS have relied on the promises made by the federal government
for free lifetime medical coverage, to their detriment.
DEFENDANTS should not be allowed to now claim that a contract did not
exist, leaving no remedy to the millions of military service men and
relied on said promises.
Public policy should dictate that a strong military be maintained for
national security and defense.
Allowing the federal government to arbitrarily refuse to honor prior
contracts and promises for lifetime free medical services would be
the security of the nation because it would hinder the military’s
to attract new enlistees and retain quality service members in a career
status, thereby diminishing the readiness of the military.
PLAINTIFFS argue that public policy should require the government to
faithfully execute and perform the contracts and/or promises for
lifetime free medical care to retired military personnel.
PLAINTIFFS have exhausted all of their administrative appeals and
PLAINTIFFS have applied for no-cost medical treatment and been denied,
as evidenced by letters indicating a denial of service from Brooke Army
WHEREFORE, PLAINTIFFS request that the Court declare that DEFENDANTS
have taken PLAINTIFFS’ property without just compensation in violation
the Fifth Amendment, that DEFENDANTS have violated the Equal Protection
Clause of the Fifth Amendment of the United States Constitution by
treating PLAINTIFFS differently that all other federal employees, that
DEFENDANTS have violated the Federal Deceptive Trade Practices Act by
misrepresenting the terms of PLAINTIFFS’ employment contract, and that
DEFENDANTS substantially breached their contract with PLAINTIFFS
resulting in the loss of PLAINTIFFS’ free medical and dental care for
life, and that DEFENDANTS are equitably estopped from reneging on their
contract with PLAINTIFFS in that PLAINTIFFS detrimentally relied on the
PLAINTIFFS incorporate herein and re-allege paragraphs 1-48 of this
DEFENDANTS’ actions in diminishing the value of PLAINTIFFS’
compensation is a taking of property for which PLAINTIFFS are
entitled to just compensation.
DEFENDANTS’ breach of the enlistment contracts with PLAINTIFFS
a breach of contract resulting in the loss of their free medical
DEFENDANTS’ withdrawal of PLAINTIFFS’ free Medicare for life
a violation of the Equal Protection
Clause of the Fifth Amendment to the United States Constitution as it
DEFENDANTS’ actions in allowing their agents to promise
free medical care for life and to subsequently withdraw same is a
of the Federal Deceptive Trade Practices Act.
DEFENDANTS’ implementation of TRICARE in 1995, was in violation of the
Due Process Clause of the Fifth Amendment of the United States
inasmuch as PLAINTIFFS did not receive proper actual notice before
health care benefits were diminished, nor did PLAINTIFFS receive proper
notice before their contract was breached with the enactment of Article
U.S.C. in 1956.
Plaintiffs claim suspect class status for the judicial review of this
case and, in the alternative, Quasi-suspect class status.
WHEREFORE, the individual PLAINTIFFS request that the Court award them
as damages, compensation not to exceed $10,000 each, and that
DEFENDANTS be estopped
from denying free medical care to PLAINTIFFS in the future as
PLAINTIFFS demand trial by jury.
Philip Earl Jones
CAMPBELL AND JONES
126 East Main Plaza
San Antonio, Texas 78205
(210) 224-1923 telephone
(210) 227-4229 facsimile