GUEST COLUMN

SGLIA SPOUSAL NOTIFICATION UNENFORCEABLE
AS MATTER OF LAW AND FEDERAL POLICY - WHEN
WILL WE START PROTECTING MILITARY WOMEN?

By Joseph M. Lyon, Esq.

In light of the horrific reports of sexual abuse within the military, the military and Congress must address the environment that has enabled soldiers to break the law with impunity and where victims are left without proper recourse.

Sadly, this reckless attitude is directed not only at female soldiers, but also military spouses. Moreover, it is not limited to physical abuse, but also manifested in actions that can cause serious financial harm.

While Congress has taken steps to protect the financial well-being of our military families, there are several gaps in the law that have created financial uncertainty for many military spouses, many of whom are unaware of their exposure. For example, the Servicemen Group Life Insurance policy can result in an unsuspecting gap in financial security.

While many spouses are aware of the policy - that the military must notify them if their husband elects another beneficiary under the policy - very few, if any, realize that the failure to notify them may leave the with no recourse.

There is a federal policy in favor of notifying spouses when an election is changed. Section 4 of the SGLIA action provides for spousal notification where the election is changed. 38 USC 1967 (4)(3). However, this statute specifically states that a proper election is not barred due to failure to notify. Why not? This gap can lead to terrible injustice when applied with the current Supreme Court case law.

A recent case in the United States District Court for the District of Colorado illustrates how the statutory and common law precedent can result in a military spouse being left without judicial recourse.

FAIRNESS THE ISSUE IN MILLS CASE

In Mills v. the Prudential Insurance Company (1:11-cv-DME-CBS), the court found that even where the military member requests and obtains a restraining order from a state court preventing both parties from changing beneficiaries in life insurance policies, the spouse has no claim under state law, where the soldier, in direct conflict with the state order, changes the beneficiary from his spouse to his brother. At the time of this writing, a motion requesting that Mrs. Mills pay the brother's court costs was pending.

The Mills case exposes several gaps in the current law. First, the court relied heavily on a U.S. Supreme Court decision Ridgway v. Ridgway, 454 U.S. 46, 102 S. Ct. 49 (1981) that held a serviceman had an "absolute right to designate the policy beneficiary" and any state law restricting this right is not enforceable, as it conflicts with federal law. While Ridgway didn't specifically address a waiver issue, the Colorado court applied the same analysis to the Mills case and found that because the state law conflicted with the federal law, the federal law trumped the state law, and Mills claimed failure as a matter of law.

The doctrine of preemption is embedded in the Supremacy Clause of the U.S. Constitution, and is a necessary default mechanism where our two bodies of law may collide. However, it can create an injustice if the legislation is not carefully drafted. This case gives rise to this type of injustice, where a military member can make a representation to one court of law, ignore that representation, and the spouse is left with no recourse despite reasonably relying upon what appeared to be a valid court order.

The current SGLIA legislation therefore, fails on two fronts. First, the language is not specific on waiver. Conduct described above should not be validated or allowed. It isn't good policy for state or federal, nor is it becoming of a military officer to seek a remedy in a state court while blatantly ignoring the order, to his spouse's financial detriment. yet, under our current law, a serviceman can file legal paperwork and protect himself from his wife changing him as a beneficiary, but she is not offered the same protection under the law. Second, the failure to notify does not result in the policy being void. A breach of this duty should have legal consequences, but as it stands, there is no recourse. Congress must act to fill this gap!

WOMEN DESERVE SAME RIGHTS AS MEN

While the conduct in the Mills case is far from the severity of the current reports of sexual assault, the behavior and fundamental attitude described in this case is epidemic and consistent with a culture that does not provide the same rights to women as it does men.

Certainly a soldier should have the right to elect who he or she wants to provide for in the event of his death while serving our country. But military wives share the stress and hardships that come with military life and should be rewarded the same or higher protection as civilian spouses.

The conduct in the Mills case was a direct violation under Ohio state law, but under federal law, that conduct is legal. By sending this type of message to our soldiers - that they can essentially break state law, yet be protected - it does not build the character the military claims to promote and teach. It is degrading to the women who stay alone, raising children, praying for a safe return, and sacrificing parts of their lives for their country.

[EDITOR'S NOTE -- For more information, and to get answers to any questions you might have regarding SGLIA benefits, contact Joseph M. Lyon, Esq. at The Lyon Firm at www.thelyonfirm.com. He is a trial lawyer with licenses in Ohio and Kentucky who handles both civil and VA disability cases on behalf of military men and women suffering from PTSD, sexual assault, burn pits and other toxic exposure injuries.]