The U.S. Department of Veterans Affairs (VA) has told a disabled Iraq war veteran that she much pay back federal veterans benefits for her legal wife and daughter because the state of Texas does not recognize her marriage.
The American Military Partner Association (AMPA) reports that Melissa Perkins-Fercha served five years on active duty during the September 11th attacks and in Operation Iraqi Freedom. After being stationed in Texas, she left active duty and received a 50 percent disability rating from the VA. She and her wife then married in Washington state, but continued to live in Texas, where her wife gave birth to their daughter in April, 2014. She then did what any disabled veteran with dependents should have been able to do: added her wife and daughter as dependents with the VA.
The VA then responded with a letter saying that because Texas does not recognize her marriage, the federal government would not recognize her wife or child as dependents for veterans benefits. The VA failed to remove her wife and daughter from their system, however, which meant that she continued to be compensated at the higher rate that disabled veterans with dependents receive.
She appealed to the VA for dependent benefits last June, and at the beginning of February 2015, received a reply from them reiterating their earlier stance. On February 25, she got another letter from them saying that they’d removed her dependents from the system and that her disability compensation would be withheld until she paid back the full compensation for their benefits.
The VA, along with the Social Security Administration (SSA), have been the two glaring exceptions to the federal government’s general stance of recognizing the state of celebration in determining federal benefits. (The government highlighted this last week in announcing that same-sex spouses could take FMLA leave no matter where they live, as long as they’d been married where it was legal.) The SSA and VA, however, are prohibited by federal statute from adopting a “place of celebration” rule, the Department of Justice (DOJ) said last June, adding that “the administration looks forward to working with Congress to fix these parts of the law.” Instead, the SSA and VA look only at state of residence. The VA will, however, recognize the marriage of a same-sex couple if they lived in a state where it was legal at the time of their marriage or at the time they applied for benefits. Perkins-Fercha and her family, because they never resided in Washington state, don’t qualify.
Does this make any sense, especially as service members are to a great degree at the mercy of the government in terms of where they are stationed? No. Is it at all in line with the values of our country to deny a disabled veteran benefits for her family? No. This is shameful. Our country can do better.
Two things could change the VA policy:
- AMPA last year filed a lawsuit against the VA to force them to change their rule; it is now pending in the United States Court of Appeals for the Federal Circuit.
- On January 27, U.S. Senator Jeanne Shaheen (D-NH) reintroduced the Charlie Morgan Military Spouses Equal Treatment Act that would give same-sex married couples and their dependents full and equal VA benefits. The bill is named after the New Hampshire National Guard member and lesbian mom who passed away of cancer after being one of the plaintiffs in a lawsuit that challenged the military’s Don’t Ask, Don’t Tell policy.
What can you do? Write to your senators and ask them to co-sponsor the Charlie Morgan Act if they haven’t already.
