Academic journal article Columbia Journal of Gender and Law

"The Toughest Job": Adkins V. Rumsfeld, Gender, Incentives, and the Uniformed Services Former Spouses' Protection Act

Academic journal article Columbia Journal of Gender and Law

"The Toughest Job": Adkins V. Rumsfeld, Gender, Incentives, and the Uniformed Services Former Spouses' Protection Act

Article excerpt

Not much is written about Jessica Miller. She was a student of psychology, was born in 1982 or early 1983, (1) and spent at least part of her childhood in Pike County, Kentucky. (2) The last part is assumed because she is said to have married her "childhood sweetheart" and Pike County is the childhood home of her ex-husband, James Blake Miller (Blake). (3) Blake has been the subject of much more publicity: a 2004 Los Angeles Times photograph captured a close-up of him: a Marine weary in the midst of the battle for Fallujah, Iraq. (4) In the picture, a battered combat helmet frames a face caked with dirt and blood, Blake's eyes are locked in the classic soldier's thousand-yard stare, and a cigarette dangles from his lower lip. When the photo made the pages of a hundred U.S. newspapers and the cover of Time Magazine, Blake became an icon nicknamed "the Marlboro Man." (5) After he returned from his tour, Jessica helped diagnose him with post-traumatic stress disorder--which is the only reason the public knows she studied psychology. (6)

Nor is much ink devoted to Patricia Ann McCarty. As with Jessica Miller's, everything publicly known about McCarty's life is spelled out between the lines of the career of her more noted ex-husband, Richard John McCarty. They were married in 1957 while he was a second-year medical student. (7) Richard became an Army doctor two years later and, over the ensuing seventeen years, followed his orders to Pennsylvania, Hawaii, the District of Columbia, California, Texas, and eventually San Francisco's Presidio Military Reservation, where he became Colonel and Chief of Cardiology. (8) Patricia presumably followed. They had at least three children together. (9)

Unlike Jessica Miller and Patricia McCarty, Tammy Adkins has not been overshadowed in the media by her husband. Adkins enlisted in the Air Force in 1978 (10) at the age of seventeen. (11) She reached the rank of Technical Sergeant, (12) serving in Sacramento, Wyoming, New Mexico, and overseas (13) before retiring on disability in 1999. (14) In the early 1980s, she married Roland Wachter, with whom she had a son, Robert, and they lived together in Sacramento and abroad (15) before divorcing in 1994. (16) Tammy then married Alvin Ray Adkins, (17) but they too divorced in May 2007. (18)

James Blake Miller filed for divorce from Jessica in June 2006, (19) thirty years after Richard and Patricia McCarty did the same. (20) The McCartys' case went to the Supreme Court on the issue of whether the retirement benefits the Army had conferred on the Colonel could be considered "quasi-community property" under California divorce law so that half of the benefits would go to Patricia. (21) The Court ruled that, because of a conflict with federal law, it could not, (22) prompting Congress to answer with the Uniformed Services Former Spouses' Protection Act (USFSPA), which specifically granted courts the authority to treat military retirement pay as the property of both service member and spouse upon divorce. (23)

The USFSPA became the subject of litigation in 2004 when a group of fifty-eight divorced retired veterans and a nonprofit company filed suit in Virginia to challenge the constitutionality of certain portions of the Act. (24) The lead plaintiff in the suit against the Secretary of Defense was Tammy Adkins, whose disability benefits were reapportioned to Roland Wachter under the Act. (25) The complaint in Adkins v. Rumsfeld alleged violations of due process and equal protection rights. (26)

The equal protection claim was particularly nuanced. The veterans argued that the USFSPA "discriminates against women in the Armed Forces and in favor of men because former husbands are more likely than former wives to have sources of income other than the divided military retirement pay." (27) The presence of women in the military in numbers much more substantial than when Congress passed the Act in 1982 (28)--women who often have non-service member husbands with private jobs and private pensions (29)--"essentially reverses the polarity of the gender assumptions that Congress employed in legislating the statute. …

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