As a retiree of the US Air Force and having gone through divorce (twice!) as an active-duty member, there is a lot of “legal stuff” to impart in this article.  However, there is much more important considerations that has nothing to do with the law and by being concerned about these non-legal issues, military members going through divorce will act in their own best interests regarding divorce.

Children.  It is not their fault parents are divorcing and they ought never to feel they have any control over parents’ behaviors.  They need help to process divorce and the best help comes from therapists who deal specifically with children in divorce.  This writer believes much of the ills of current society can be directly attributed to adults who were children of divorce.  It is important to focus on the children and do what is best for THEM in divorce, and not what might be best for the parents.  Family Court cares about the children before they care about the parents.  Parents who act in their children’s best interests will find their own best interests are also covered.

Child support.  Parents who do not think of the children’s futures with regard to child support are generally not acting in the children’s best interests.  If not used immediately to care for the children, put the money in a 529 account for the children’s college education or place it in a savings account, long-term CD, etc.  for the children’s future needs.  Teenagers are expensive and children of divorce should be able to go to college, buy the prom dress, rent the tux, take a date to dinner, etc.  Child support is for the CHILDREN’s best interest.

Marital Property.  In the State of Texas, the default position is all property acquired after the marriage date is marital property and all property acquired before marriage is separate property, subject to liabilities that may exist with the property.  There are some exceptions (inheritance, pre- and post-nuptial agreements, fault in divorce, etc.), but generally, the court will liquidate and divide the property in half, after the liabilities are paid.  It behooves the marital couple to work out who may keep what property because in most cases, liquidation of marital properties in retirement accounts, pensions, and/or real property, etc. may be more expensive to the marital estate.  Don’t “cut off your nose to spite your face,” cooperation will save both married people in attorney fees; in tax liability; in preserving property; etc.

O’Connell West supports military members and Veterans in divorce and subsequent cases after divorce.  Let us know how we can support you!

Lieutenant Colonel (Ret) Trinh Warner is an Attorney in the San Antonio office of O’Connell West, PLLC.  If you need a free legal consultation regarding a legal issue, call 512-547-7265.

Soldiers are faced with many stressful situations in and out of uniform. Between deployments, separations, and stress at work and home, service members have a high risk of being involved in domestic violence situations.

In Texas, being charged with a misdemeanor assault family violence holds multiple consequences. Most importantly, the arrest will be on your criminal record. If convicted you may have problems obtaining a state issued professional license, immigration issues for non-citizens and you lose the right to possess a firearm. As a military professional this will not only impact you as a civilian but will hinder your military career.

Federal law prohibits anyone convicted of a misdemeanor or felony offense of domestic violence from possessing a firearm. There is no exception for military personnel. DoD reported 16,912 incidents of domestic abuse in FY18, with 8,039 that met the DoD definition of domestic related incidents.

Domestic violence is defined as the use, attempted use, or threatened use of force or violence against a person, or a violation of a lawful order issued for the protection of a person who is: a current or former spouse; a person with whom the abuser shares a child in common; or a current or former intimate partner with whom the abuser shares or has shared a common domicile.

Some service members accused of assaulting a family member mistakenly believe that if the Judge doesn’t make an affirmative finding of family or domestic violence, the firearms prohibition doesn’t apply. Unfortunately, the military services can look at the facts of the individual case and determine the conviction involved family violence. When this happens, service members are normally separated from the military. A conviction for domestic violence could preclude an individual from future service in the military and opportunities as a civilian.

Doug O’Connell is a retired Colonel who focuses on representing military services members, veterans, first responders and their family members. Call 512-547-7265 for a free consultation or email Doug@OConnellWest.com.

If you’ve spent any time in the military, you are no stranger to the SRP. You know – that two-day struggle to make your way through the labyrinth of medical and dental visits, personnel stations, records review, and ultimately the attorneys who prepare estate plans to ensure your loved ones get your stuff if the unthinkable should happen.  Unfortunately,  the rushed and chaotic atmosphere at a SRP is not the ideal environment for serious estate planning.

Proper estate planning will reduce pressure and anxiety on those who are left to deal with the permanent absence of the family member, and provide immediate access to assets for burial, continuing to make the house payment, etc.

The Last Will and Testament is the normal method for Soldiers and Airman to dispose of their property to their heirs. It is accepted in all states, and a will can do all things necessary to accomplish disposition.  Unfortunately, distributing assets in a Will requires court involvement called “probate,” which often requires additional costs and attorney fees.  Probating a will can be even more expensive if there are many heirs, disputes, or worse if there was a technical error in drafting or executing the instrument.  Wills are solid tools, but other methods exist to avoid exposing assets to probate courts, and creditors.

In 2015, the Legislature enacted the Texas Real Property Transfer on Death Act (TRPTODA) which allows an owner to name a beneficiary to receive real estate located within the State of Texas. The real estate passes to the beneficiary outside the regular probate process by means of a transfer on death deed (TODD). The owner retains the absolute right to revoke the deed or sell, mortgage or otherwise encumber the property.  The TODD is a huge win because generally the largest portion of most estates is real property.

Banking and investment accounts may also be disposed in a Last Will and Testament, but there are more efficient ways to transfer outside of probate.  Every financial institution that holds depositor’s or investor’s cash has options to transfer decedent assets without the necessity of probate. These types of accounts are normally called “transfer on death” or “payable on death” options.  Be mindful to ask your financial representative to ensure that should you expire; the person or persons of your choosing will become immediate owners of those assets without the necessity of court involvement.

Estate planning can seem like an arduous task.  However, failing to plan can erode what you’ve worked so hard to build, and leave your loved ones in confusing and expensive situations just to maintain the homestead, or have access to your savings account.

Attorney Wesley West is a partner at O’Connell & West, PLLC. Wes can be reached at (512) 547-7265.

Divorce proceedings are often complex, with significant financial and emotional consequences for all parties involved. One particular cautionary tale underscores the importance of explicitly addressing beneficiary designations in divorce settlements, especially regarding significant assets like life insurance policies.

In this case, a divorcing couple reached a settlement where the husband (H) was awarded ownership of his Servicemembers’ Group Life Insurance (SGLI) policy. However, while the divorce decree specified that H would retain the SGLI, it did not explicitly direct him to update or change the designated beneficiary from his ex-wife to someone else. Perhaps due to oversight, misunderstanding, or lack of legal guidance, H failed to revise the beneficiary designation after the divorce.

Years later, H remarried and started a new family, which included young children. Tragically, H passed away, leaving his current wife and children in a financially vulnerable position. As the SGLI policy had not been updated, the funds were paid in full to his ex-wife, the beneficiary on file at the time of his death. The ex-wife, now legally entitled to the proceeds, refused to share the funds, leaving H’s surviving spouse and children without the financial support the policy was likely intended to provide.

This heartbreaking outcome highlights the critical importance of updating beneficiary designations promptly after major life changes, such as a divorce or remarriage. Under federal law, the proceeds of SGLI policies are distributed strictly according to the beneficiary listed in the policy at the time of the servicemember’s death. Unlike some state laws that might recognize a new spouse’s claim in similar situations, federal law preempts state statutes in the case of SGLI, leaving no room for exceptions based on intent or equity.

This case serves as a cautionary tale for both individuals and legal professionals handling divorce cases. Divorce decrees should include clear instructions for updating life insurance beneficiaries, retirement accounts, and other critical financial instruments. For the policyholder, it is essential to act swiftly to update beneficiary designations in accordance with their current wishes.

Failing to take these steps can lead to devastating financial consequences for surviving loved ones. While courts may enforce the terms of a divorce decree, they cannot override federal law governing SGLI beneficiary designations. Therefore, personal responsibility in ensuring these updates is paramount to avoid unintended outcomes that could jeopardize the financial future of one’s family.

Lieutenant Colonel (Ret) Trinh Warner is a retired Air Force JAG and an attorney in the San Antonio office of O’Connell West, PLLC.  In addition to Family Law, OC-West practices Criminal Law, Military Law and Personal Injury. If you need a free consultation regarding a legal issue, call 512-547-7265.

O’Connell West, PLLC stands ready to help.  Call us!

Military retirees can face court martial for offenses committed AFTER they retire. This is decision is not really ground breaking, it’s maintaining the current and longstanding interpretation of this law.  The SCOTUS simply affirmed existing law by denying to consider an appeal in the case of Larrabee vs. United States.

https://www.military.com/daily-news/2019/02/22/supreme-court-retirees-can-be-court-martialed-crimes-committed-after-service.html

The law in question 10 U.S.C. Section 802 defines who is subject to the Uniform Code of Military Justice (UCMJ). Part of this law makes active duty retirees subject to the UCMJ even after they retire.  The law, originally from the 1950’s is based on the idea that you don’t ever really “retire” from active duty, but rather you shift to a standby status and your retirement check is not for past service but instead compensation to keep you on the rolls and subject to recall in the event of a full national mobilization.

Even though it’s long been possible to prosecute military retirees, it seldom occurs. In this case, the Defendant committed an offense in Okinawa. The UCMJ gave the United States Government an avenue to prosecute with the most advantageous venue.  If the offense had occurred stateside, it’s highly unlikely the military would have sought to prosecute under the UCMJ.

Note: This law does not apply to reservist or National Guard service members unless the alleged offense is committed while on active duty (and some other provisions of law are met).

You may have heard there is a new law that allows service members to sue the government for negligent treatment.  Unfortunately, that’s not completely true. For nearly 70 years the “Feres doctrine” has blocked service members from suing the government for injuries or death arising from military service.  Military spouses and children have always been eligible to sue the government for wrongful injuries. Likewise, service members have always been able to sue defense contractors for faulty products and negligent actions.

The 2020 National Defense Authorization Act allows, for the first time, service members to seek legal action and receive compensation when they are the victim of medical malpractice in DoD facilities.  Service members harmed by medical malpractice can now file an administrative claim for compensation. For 2020, service members may file claims originating in 2017 or later. Starting next year, claims must be filed within 2 years of the malpractice incident. If the service member dies as a result of the malpractice, the surviving family members may file a claim.  Other types of injuries and wrongful conduct are still barred under Feres.

National Guard service members may only file claims under this new law if in federal status when the malpractice occurs.  So if you are hurt during a drill weekend and treated at a military hospital, any resulting injuries due to malpractice would not be eligible for compensation.  Reservist on the other hand would be covered under this same scenario.

The Department of Defense has established procedures to investigate claims of medical malpractice.  Importantly, the DoD also gets to determine what amount of compensation victims will receive, and the government will not pay attorneys fees.  Attorneys representing service members may only charge a fee up to 20% of any amount paid by the government.

Doug O’Connell is a retired TXARNG Colonel who focuses on representing military service members, veterans, first responders and their family members. Doug@OConnellWest.com

The military’s Survivor Benefit Program (SBP) is an annuity program to provide financial support for military spouses following the death of a veteran. While the program may provide some measure of financial security, some financially savvy Veterans opt instead to buy an additional insurance policy or annuity product at a lower cost. If the Veteran is married at retirement and chooses to opt out of SBP coverage, the spouse must sign the declination and have the signature notarized.

The deadline for applying for SBP for active duty personnel is before retirement. For reserve component members the deadline is within 90 days of retirement. Failure to fill out SBP will either stall retirement pay or result in automatic full coverage for the spouse.

As a government product, the SBP involves some inherent bureaucracy. This is especially evidence when a Veteran becomes divorced. Often, SBP benefits are negotiated as part of a divorce settlements. Often a court’s divorce decree addresses SBP benefits, but this is not required.

WITHIN 1 YEAR! When a Veteran becomes divorce and wants to continue the SBP for their former spouse, specific actions must occur First, the Veteran must elect former spouse on DD Form 2656-1 and submit this form to DFAS within one year of divorce. 366 days after a divorce is final is too late and DFAS will reject the claim. Veterans should mail and fax copies to DFAS and the former spouse should retain a copy. If the Veteran has more than one former spouse the first request received by DFAS will be honored, assuming the documentation is complete.

A 2016 change to the law (contained in the 2016 National Defense Authorization Act) allows a retiree with SBP coverage for a former spouse to transfer that coverage to his/her new spouse if the former spouse dies. If a surviving spouse is entitled to SBP benefits, but remarries before age 55 they are automatically ineligible to receive benefits – no matter how much the deceased Veteran paid in premiums (subtracted from their retirement checks). If the surviving spouse remarries at age 57 or older they’re still eligible to receive a full payment.

SBP regulations are complicated and often result in wasted money and frustrated widows. Consulting a financial planner familiar with the SBP and or a Divorce Attorney experienced in the intricacies of military divorces may save you money and heart ache for survivors after your gone.

Retired Colonel Doug O’Connell is a practicing Attorney offering free consultations and discounted legal fees for military service members and Veterans. Contact Doug at Doug@OConnellWest.com or 512-547-7265.

Congratulations, you were selected for promotion! Unfortunately, Army Human Resources Command notified you that your name is being removed from the promotion scroll and your file will go before a Promotion Review Board (PRB). Here’s the real truth about the process and what you can do to defend your name and increase your odds to get promoted.

Bottom line up front: Sending a letter to the PRB explaining how you’re sorry and explaining you love the Army – isn’t going to cut it.

Federal law mandates that military officers maintain “exemplary conduct.” Army officers have always been subject to review after a selection board, however historically, this action was limited to officers selected for command or nominative assignments. Army Secretary Eric Fanning exponentially expanded the use of PRBs in August of 2016. It’s widely thought that the expansion of post board screening and PRBs was part of the Army’s attempt to appease Congress in the wake of military sexual assault scandals.

The Process.

All Officers selected for promotion by a DA Board are screened for derogatory information (DEROG), as part of the post-board procedures. Three primary data bases are searched for derogatory information: Army CID’s database known as the Army Law Enforcement Report Tracking System (ALERTS), the Inspector General data base and the restricted portion of your OPMF. Army CID investigations, substantiated IG complaints, UCMJ actions, Article 15s, and letters of reprimands can all trigger PRB actions.

If you were “titled” as part of a CID investigation, or CID obtained a report from a civilian law enforcement agency, you will be flagged and removed from the promotion list. HRC will normally send you copy of the derogatory information, but in cases involving Army CID, the DEROG is often just a short conclusory summary of their investigation. In other words, CID doesn’t send the board their Agent’s report of investigation and evidence. The PRB process assumes the allegations are true and that the Agent’s conclusions are sound.

The PRB is a “paper board.” You can’t appear in person to argue you case to the board and you can’t appear telephonically. The board reviews the DEROG and your rebuttal and then sends a recommendation to the Secretary of the Army for a final decision.

The Clock is Ticking. Once you receive PRB notice, you have a very limited time to fight back. Active duty officers have 14 days to submit a rebuttal and Reserve Component Officers have 45 days. The time calculation for submitting a rebuttal starts the day you receive notice from HRC.

Step 1 – Gather Intel & Understand the Allegations Against You.
It’s critical to gather copies of any investigator reports, law enforcement documents and any other documents related to you case. You can obtain CID documents and reports under the Freedom of Information Act (FOIA) and the Privacy Act (PA).

If you were investigated by a civilian law enforcement agency, you’ll want to serve FOIA and PA or the state law equivalent demands on each agency involved. If CID titled you based on a civilian law enforcement investigation, you should serve open records request on both agencies. Don’t assume you’ll get everything you’re legally entitled to from any agency. An Attorney can help you fashion a request that’s broad enough to encompass all possible documents and discuss the various exceptions to the law which may apply to your case. Remember, that the CID report sent to the board is a short, conclusory document, based on either their own investigation or another law enforcement agency’s report. You’ll need all of these documents to mount an effective defense.

Step 2 – Develop a Strategy.
Since the board begins by assuming the adverse information against you is true, your only viable course of action is to successfully rebut the allegations. Keep in mind, “minor” offenses or transgressions are weeded out prior to the PRB. So, if the allegation against you is serious enough to be referred to a PRB, then it stands to reason that your rebuttal needs to be far more than a letter of contrition.

In order to successfully rebut allegations of misconduct, your submission must: 1) demonstrate you meet the standard of exemplary conduct, 2) prove the underlying allegation is untrue (or raise serious doubt) or that the investigator’s conclusions were flawed, and 3) validate the promotion board’s determination that you are “best qualified” for promotion.

Your service record, evaluations and the investigation documents can be analyzed to develop a strategy to build a compelling rebuttal package.

Depending on the facts of your case, it may be advisable to engage a private investigator to conduct an independent investigation and gather exculpatory and or mitigating evidence.

Step 3 – Launch a Counter-Attack
Letters of Endorsement from senior officers attesting to your integrity, character and superior performance can help your case. Here again, an Attorney familiar with Army standards can help with critical language that will make the endorsement letters compelling to the PRB.

You’re guilty until proven innocent. It’s critically important to understand the PRB starts by presuming the DEROG is true and correct. The investigator’s conclusions are received as true, regardless of any extenuating circumstances or flawed conclusions. Remember, the PRB is only provided CID’s summary report. In most cases, this report is void of any discussion of evidence collected or any meaningful analysis of the facts of the case. It also doesn’t contain any statement made to law enforcement disputing the facts or “proving your innocence.”

In other words, it’s simply a conclusory statement often made by a singular CID agent. If this seems wildly unfair and a violation of Due Process rights, you’re correct. It also means a letter of contrition detailing your regret and love for the Army will validate CID’s conclusion and make the board’s decision easy. The more senior you are, or the more serious the allegation, the more likely it is that the board will decline to recommend you be promoted.

If your Army career matters to you or you value your reputation, your only option is to fight back. Your rebuttal must challenge the allegations and the conclusions of the investigator. Ideally, you’ll be able to demonstrate flaws in the investigation, provide evidence casting doubt on the DEROG, and convince the board of your innocence.

The Waiting Game.

Despite the strict deadlines imposed by HRC, there does not appear to be any correlation to when a specific board convenes, and HRC takes significant efforts to keep the process details murky. Sequencing suggests that PRBs are considered special boards that are simply added on the work load for HRC boards convened for other purposes. In many cases, this likely adds to the time required to obtain results. Once the PRB adjourns, their recommendations are forwarded through layers of bureaucracy, ultimately to the Secretary of the Army for action. The Secretary can accept or reject the PRBs conclusion. The total length of time required for the entire PRB process can range from 10 months to 18 months or more.

All Soldiers have the right file a complaint or grievance with the Inspector General. An Inspector General (IG) Investigation is a tool used by the Armed Forces to ensure morals and ethics are being upheld by your command and leaders. Normally, if you have a complaint of fraud, waste, abuse, violations of law or regulation you should report it by following the chain of command procedures. If your report is not handled correctly then report to your local IG office.

Any military member or civilian can file a report with IG. However, civilians will also need to make a report with local law enforcement agencies. You have the option to remain anonymous when filing a report. Your name will not be revealed unless you give consent or IG determines it is unavoidable. However, in our experience, anonymous complaints won’t be given serious consideration.

Not all allegations can be reported to IG, for example, evaluation reports, enlisted reductions or court martial actions. Please see https://www.daig.pentagon.mil/ for more examples of complaints that are not appropriate. Once you have filed DA Form 1559, the Inspector General Action Process (IGAP) is a steven step process to ensure your complaint is handled properly.

You can’t be disciplined for making an IG complaint.
Reprisal is taking or threatening to take an unfavorable personnel action or withholding or threatening to withhold a favorable personnel action on a military member for making or preparing a protected disclosure

All IG complaints are considered “protected communications,” and when supervisors, commanders or anyone else takes or threatens to take unfavorable actions or withholds a favorable action against a service member for making a protected communication – that is considered reprisal. Supervisors or others that reprises against you can be punished – IF the Command determines reprisal actually occurred.

IG complaints are never “off the record.” IG’s are part of the commander’s staff. Anything you say to an IG can potentially end up on your commander’s desk, especially if the IG determines laws or regulations occurred.

When to hire an attorney? In the vast majority of IG complaints service members don’t need to hire an attorney. In cases where they believe they are being retaliated against or if the subject of the complaint is so important that the service member feels overwhelmed, they may want to consider engaging an attorney. Experienced attorney can help ensure the issues are legally supported and presented in a coherent manner designed to force the IG to take action.

If you need advice regarding an IG complaint, call O’Connell West, PLLC at 512-547-7265 for a free consultation.

The 87^th Legislature passed several new laws related to the Texas National Guard.  One new law enhances the protections of Guardsmen serving in state status.  The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law designed to protect reservist when called active duty.  Senate Bill 484, authored by State Senator Juan “Chuy” Hinojosa, is designed to extend the protections of USERRA and the Service Members Civil Relief Act (SCRA) to cover State Active Duty missions and training.

Existing state law provided that employers may not terminate an employee who’s a member of the state military forces because they are ordered to state active duty, state training, or other duty by the Governor, Adjutant General or their chain of command. The term “other duty” is broad enough to encompass any other duty whether on State Active Duty, Title 32 or Title 10 service, drill weekends and annual training. However, the existing law implied that the only remedy available to Guardsmen was a complaint to the Texas Workforce Commission.

Senate Bill 484 now clarifies the right of Texas Guard members, including State Guard members to hire an attorney to bring a lawsuit when employers discriminate against due to their state military service.  In addition, the law extends the SCRA protections, such as the ability to terminate a lease, based on State Active Duty.

Guardsmen must be returned to the same job they held prior to being placed on orders. Further, an employer cannot be subjected to the loss of seniority, vacation time or any other benefit that they would have enjoyed had they not been ordered to duty.  Once released from duty, Guardsmen must give written or actual notice of their intent to return to employment.

If the service member prevails in their lawsuit, the new law specifies that the Court may award the service member declaratory or equitable relief, monetary damages, court costs and attorney’s fees.

Governor Abbott signed the bill on June 16^th.  The law goes into effect on September 1 and will apply TXMF members ordered to State Active Duty, training and other duty on or after that date.

Attorney Doug O’Connell is a retired Colonel who focuses on representing military service members, veterans, first responders and their family members. You can contact Doug at 512-547-7265 or Doug@OConnellWest.com.