MILITARY ISSUES IN DIVORCE & THE UNIFORM DEPLOYED PARENTS CUSTODY AND VISITATION ACT

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1 MILITARY ISSUES IN DIVORCE & THE UNIFORM DEPLOYED PARENTS CUSTODY AND VISITATION ACT I. MILITARY CUSTODY AND THE UDPCVA A. Single-Parent Enlistment I. Army AR (Army Regulation) ; II. Navy COMNAVCRUITCOMINST (Navy Recruiting Manual Enlisted) F; III. Air Force AFRS (Air Force Recruiting Service) Instruction ; IV. Marine Corps Marine Corps Order P C, Chapter 3, Section 2; and V. Coast Guard COMDTINST (Commandant Instruction) M1100.2E. VI. The legal authority which applies throughout the Department of Defense is DoD (Department of Defense) Instruction B. UDPCVA CHAPTER UNIFORM DEPLOYED PARENTS CUSTODY AND VISITATION ACT (102) Definitions. 1. "Adult" means an individual who has attained eighteen years of age or an emancipated minor. 2. "Caretaking authority" means the right to live with and care for a child on a day-to-day basis. The term includes physical custody, parenting time, right to access, and visitation. 3. "Child" means: 1. An unemancipated individual who has not attained eighteen years of age; or 2. An adult son or daughter by birth or adoption, or under law of this state other than this chapter, who is the subject of a court order concerning custodial responsibility. 4. "Court" means a tribunal authorized under law of this state other than this chapter to make, enforce, or modify a decision regarding custodial responsibility. 5. "Custodial responsibility" includes all powers and duties relating to caretaking authority and decisionmaking authority for a child. The term includes physical custody, legal custody, parenting time, right to access, visitation, and authority to grant limited contact with a child. 6. "Decisionmaking authority" means the power to make important decisions regarding a child, including decisions regarding the child's education, religious training, health care, extracurricular activities, and travel. The term does not include the power to make decisions that necessarily accompany a grant of caretaking authority. 7. "Deploying parent" means a servicemember, who is deployed or has been notified of impending deployment and is: 1. A parent of a child under law of this state other than this chapter; or 2. An individual who has custodial responsibility for a child under law of this state other than this chapter. 8. "Deployment" means the movement or mobilization of a servicemember for more than ninety days but less than eighteen months pursuant to uniformed service orders that: 1. Are designated as unaccompanied; 2. Do not authorize dependent travel; or 3. Otherwise do not permit the movement of family members to the location to which the servicemember is deployed. 9. "Family member" means a sibling, aunt, uncle, cousin, stepparent, or grandparent of a child or an individual recognized to be in a familial relationship with a child under law of this state other than this chapter. 10. "Limited contact" means the authority of a nonparent to visit a child for a limited time. The term includes authority to take the child to a place other than the residence of the 1

2 child. 11. "Nonparent" means an individual other than a deploying parent or other parent. 12. "Other parent" means an individual who, in common with a deploying parent, is: 1. A parent of a child under law of this state other than this chapter; or 2. An individual who has custodial responsibility for a child under law of this state other than this chapter. 13. "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. 14. "Return from deployment" means the conclusion of a servicemember's deployment as specified in uniformed service orders. 15. "Servicemember" means a member of a uniformed service. 16. "Sign" means, with present intent to authenticate or adopt a record: 1. To execute or adopt a tangible symbol; or 2. To attach to or logically associate with the record an electronic symbol, sound, or process. 17. "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. 18. "Uniformed service" means: 1. Active and reserve components of the army, navy, air force, marine corps, or coast guard of the United States; 2. The United States merchant marine; 3. The commissioned corps of the United States public health service; 4. The commissioned corps of the national oceanic and atmospheric administration of the United States; or 5. The national guard of a state (103) Remedies for noncompliance. In addition to other remedies under law of this state other than this chapter, if a court finds that a party to a proceeding under this chapter has acted in bad faith or intentionally failed to comply with this chapter or a court order issued under this chapter, the court may assess reasonable attorney's fees and costs against the party and order other appropriate relief (104) Jurisdiction. 1. A court may issue an order regarding custodial responsibility under this chapter only if the court has jurisdiction under chapter If a court has issued a temporary order regarding custodial responsibility pursuant to sections through , the residence of the deploying parent is not changed by reason of the deployment for the purposes of chapter during the deployment. 3. If a court has issued a permanent order regarding custodial responsibility before notice of deployment and the parents modify that order temporarily by agreement pursuant to sections through , the residence of the deploying parent is not changed by reason of the deployment for the purposes of chapter If a court in another state has issued a temporary order regarding custodial responsibility as a result of impending or current deployment, the residence of the deploying parent is not changed by reason of the deployment for the purposes of chapter This section does not prevent a court from exercising temporary emergency jurisdiction under chapter (105) Notification required of deploying or redeploying parent. 1. Except as otherwise provided in subsection 4 and subject to subsection 3, a deploying parent shall notify in a record the other parent of a pending deployment or redeployment not later than seven days after receiving notice of deployment or redeployment unless reasonably prevented from doing so by the circumstances of service. If the circumstances of service prevent giving 2

3 notification within the seven days, the deploying or redeploying parent shall give the notification as soon as reasonably possible. 2. Except as otherwise provided in subsection 4 and subject to subsection 3, each parent shall provide in a record the other parent with a plan for fulfilling that parent's share of custodial responsibility during deployment. Each parent shall provide the plan as soon as reasonably possible after notification of deployment is given under subsection If a court order currently in effect prohibits disclosure of the address or contact information of the other parent, notification of deployment under subsection 1, or notification of a plan for custodial responsibility during deployment under subsection 2, may be made only to the issuing court. If the address of the other parent is available to the issuing court, the court shall forward the notification to the other parent. The court shall keep confidential the address or contact information of the other parent. 4. Notification in a record under subsection 1 or 2 is not required if the parents are living in the same residence and both parents have actual notice of the deployment or plan. 5. In a proceeding regarding custodial responsibility, a court may consider the reasonableness of a parent's efforts to comply with this section (106) Duty to notify of change of address. 1. Except as otherwise provided in subsection2, an individual to whom custodial responsibility has been granted during deployment pursuant to sections through or sections through shall notify the deploying parent and any other individual with custodial responsibility of a child of any change of the individual's mailing address or residence until the grant is terminated. The individual shall provide the notice to any court that has issued a custody or child support order concerning the child which is in effect. 2. If a court order currently in effect prohibits disclosure of the address or contact information of an individual to whom custodial responsibility has been granted, a notification under subsection 1 may be made only to the court that issued the order. The court shall keep confidential the mailing address or residence of the individual to whom custodial responsibility has been granted (201) Form of agreement. 1. The parents of a child may enter into a temporary agreement under sections through granting custodial responsibility during deployment. 2. An agreement under subsection 1 must be: 1. In writing; and 2. Signed by both parents and any nonparent to whom custodial responsibility is granted. 3. Subject to subsection 4, an agreement under subsection 1, if feasible, must: 1. Identify the destination, duration, and conditions of the deployment that is the basis for the agreement; 2. Specify the allocation of caretaking authority among the deploying parent, the other parent, and any nonparent; 3. Specify any decisionmaking authority that accompanies a grant of caretaking authority; 4. Specify any grant of limited contact to a nonparent; 5. If under the agreement custodial responsibility is shared by the other parent and a nonparent, or by other nonparents, provide a process to resolve any dispute that may arise; 6. Specify the frequency, duration, and means, including electronic means, by which the deploying parent will have contact with the child, any role to be played by the other parent in facilitating the contact, and the allocation of any costs of contact; 7. Specify the contact between the deploying parent and child during the time the deploying parent is on leave or is otherwise available; 8. Acknowledge that any party's child support obligation cannot be modified by the agreement, and that changing the terms of the obligation during deployment 3

4 requires modification in the appropriate court; 9. Provide that the agreement will terminate according to the procedures under sections through after the deploying parent returns from deployment; and 10. If the agreement must be filed pursuant to section , specify which parent is required to file the agreement. 4. The omission of any of the items specified in subsection 3 does not invalidate an agreement under this section (202) Nature of authority created by agreement. 1. An agreement under sections through is temporary and terminates pursuant to sections through after the deploying parent returns from deployment, unless the agreement has been terminated before that time by court order or modification under section The agreement does not create an independent, continuing right to caretaking authority, decisionmaking authority, or limited contact in an individual to whom custodial responsibility is given. 2. A nonparent who has caretaking authority, decisionmaking authority, or limited contact by an agreement under sections through has standing to enforce the agreement until it has been terminated by court order, by modification under section , or under sections through (203) Modification of agreement. 1. By mutual consent, the parents of a child may modify an agreement regarding custodial responsibility made pursuant to sections through If an agreement is modified under subsection 1 before deployment of a deploying parent, the modification must be in writing and signed by both parents and any nonparent who will exercise custodial responsibility under the modified agreement. 3. If an agreement is modified under subsection 1 during deployment of a deploying parent, the modification must be agreed to in a record by both parents and any nonparent who will exercise custodial responsibility under the modified agreement (204) Power of attorney. A deploying parent, by power of attorney, may delegate all or part of custodial responsibility to an adult nonparent for the period of deployment if no other parent possesses custodial responsibility under law of this state other than this chapter, or if a court order currently in effect prohibits contact between the child and the other parent. The deploying parent may revoke the power of attorney by signing a revocation of the power (205) Filing agreement or power of attorney with court. An agreement or power of attorney under sections through must be filed within a reasonable time with any court that has entered an order on custodial responsibility or child support that is in effect concerning the child who is the subject of the agreement or power. The case number and heading of the pending case concerning custodial responsibility or child support must be provided to the court with the agreement or power (301) Definition. In sections through , "close and substantial relationship" means a relationship in which a significant bond exists between a child and a nonparent (302) Proceeding for temporary custody order. 1. After a deploying parent receives notice of deployment and until the deployment terminates, a court may issue a temporary order granting custodial responsibility unless prohibited by the federal Servicemembers Civil Relief Act [50 U.S.C. appendix sections 521 and 522]. A court 4

5 may not issue a permanent order granting custodial responsibility without the consent of the deploying parent. 2. At any time after a deploying parent receives notice of deployment, either parent may file a motion regarding custodial responsibility of a child during deployment. The motion must be filed in a pending proceeding for custodial responsibility in a court with jurisdiction under section or, if there is no pending proceeding in a court with jurisdiction under section , in a new action for granting custodial responsibility during deployment (303) Expedited hearing. If a motion to grant custodial responsibility is filed under subsection 2 of section before a deploying parent deploys, the court shall conduct an expedited hearing (304) Testimony by electronic means. In a proceeding under sections through , a party or witness who is not reasonably available to appear personally may appear, provide testimony, and present evidence by electronic means unless the court finds good cause to require a personal appearance (305) Effect of prior judicial order or agreement. In a proceeding for a grant of custodial responsibility pursuant to sections through , the following rules apply: 1. A prior judicial order designating custodial responsibility in the event of deployment is binding on the court unless the circumstances meet the requirements of law of this state other than this chapter for modifying a judicial order regarding custodial responsibility. 2. The court shall enforce a prior written agreement between the parents for designating custodial responsibility in the event of deployment, including an agreement executed under sections through , unless the court finds that the agreement is contrary to the best interests of the child (306) Grant of caretaking or decisionmaking authority to nonparent. 1. On motion of a deploying parent and in accordance with the laws of this state other than this chapter, if it is in the best interests of the child, a court may grant caretaking authority to a nonparent who is an adult family member of the child or an adult with whom the child has a close and substantial relationship. 2. Unless a grant of caretaking authority to a nonparent under subsection 1 is agreed to by the other parent, the grant is limited to an amount of time not greater than: 1. The amount of time granted to the deploying parent under a permanent custody order, but the court may add unusual travel time necessary to transport the child; or 2. In the absence of a permanent custody order that is currently in effect, the amount of time that the deploying parent habitually cared for the child before being notified of deployment, but the court may add unusual travel time necessary to transport the child. 3. A court may grant part of a deploying parent's decisionmaking authority, if the deploying parent is unable to exercise that authority, to a nonparent who is an adult family member of the child or an adult with whom the child has a close and substantial relationship. If a court grants the authority to a nonparent, the court shall specify the decisionmaking powers granted, including decisions regarding the child's education, religious training, health care, extracurricular activities, and travel (307) Grant of limited contact. On motion of a deploying parent, and in accordance with the laws of this state other than this chapter, unless the court finds that the contact would be contrary to the best interests of the child, a court shall grant limited contact to a nonparent who is a family member of the child or an individual with whom the child has a close and substantial relationship. 5

6 (308) Nature of authority created by temporary custody order. 1. A grant of authority under sections through is temporary and terminates under sections through after the return from deployment of the deploying parent, unless the grant has been terminated before that time by court order. The grant does not create an independent, continuing right to caretaking authority, decisionmaking authority, or limited contact in an individual to whom it is granted. 2. A nonparent granted caretaking authority, decisionmaking authority, or limited contact under sections through has standing to enforce the grant until it is terminated by court order or under sections through (309) Content of temporary custody order. 1. An order granting custodial responsibility under sections through must: 1. Designate the order as temporary; and 2. Identify to the extent feasible, the destination, duration, and conditions of the deployment. 2. If applicable, an order for custodial responsibility under sections through must: 1. Specify the allocation of caretaking authority, decisionmaking authority, or limited contact among the deploying parent, the other parent, and any nonparent; 2. If the order divides caretaking or decisionmaking authority between individuals, or grants caretaking authority to one individual and limited contact to another, provide a process to resolve any dispute that may arise; 3. Provide for liberal communication between the deploying parent and the child during deployment, including through electronic means, unless contrary to the best interests of the child, and allocate any costs of communications; 4. Provide for liberal contact between the deploying parent and the child during the time the deploying parent is on leave or otherwise available, unless contrary to the best interests of the child; 5. Provide for reasonable contact between the deploying parent and the child after return from deployment until the temporary order is terminated, even if the time of contact exceeds the time the deploying parent spent with the child before entry of the temporary order; and 6. Provide that the order will terminate pursuant to sections through after the deploying parent returns from deployment (310) Order for child support. If a court has issued an order granting caretaking authority under sections through , or an agreement granting caretaking authority has been executed under sections through , the court may enter a temporary order for child support consistent with the laws of this state other than this chapter if the court has jurisdiction under chapter (311) Modifying or terminating grant of custodial responsibility to nonparent. 1. Except for an order under section , except as otherwise provided in subsection2, and consistent with the federal Servicemembers Civil Relief Act, [50 U.S.C. appendix sections 521 and 522], on motion of a deploying or other parent or any nonparent to whom caretaking authority, decisionmaking authority, or limited contact has been granted, the court may modify or terminate the grant if the modification or termination is consistent with sections through and it is in the best interests of the child. A modification is temporary and terminates pursuant to sections through after the deploying parent returns from deployment, unless the grant has been terminated before that time by court order. 2. On motion of a deploying parent, the court shall terminate a grant of limited contact. 6

7 (401) Procedure for terminating temporary grant of custodial responsibility established by agreement. 1. At any time after return from deployment, a temporary agreement granting custodial responsibility under sections through may be terminated by an agreement to terminate signed by the deploying parent and the other parent. 2. A temporary agreement under sections through granting custodial responsibility terminates: 1. If an agreement to terminate under subsection 1 specifies a date for termination, on that date; or 2. If the agreement to terminate does not specify a date, on the date the agreement to terminate is signed by the deploying parent and the other parent. 3. In the absence of an agreement under subsection 1 to terminate, a temporary agreement granting custodial responsibility terminates under sections through sixty days after the deploying parent gives notice to the other parent that the deploying parent returned from deployment. 4. If a temporary agreement granting custodial responsibility was filed with a court pursuant to section , an agreement to terminate the temporary agreement also must be filed with that court within a reasonable time after the signing of the agreement. The case number and heading of the case concerning custodial responsibility or child support must be provided to the court with the agreement to terminate (402) Consent procedure for terminating temporary grant of custodial responsibility established by court order. At any time after a deploying parent returns from deployment, the deploying parent and the other parent may file with the court an agreement to terminate a temporary order for custodial responsibility issued under sections through After an agreement has been filed, the court shall issue an order terminating the temporary order effective on the date specified in the agreement. If a date is not specified, the order is effective immediately (403) Visitation before termination of temporary grant of custodial responsibility. After a deploying parent returns from deployment until a temporary agreement or order for custodial responsibility established under sections through or sections through is terminated, the court shall issue a temporary order granting the deploying parent reasonable contact with the child unless it is contrary to the best interests of the child, even if the time of contact exceeds the time the deploying parent spent with the child before deployment (404) Termination by operation of law of temporary grant of custodial responsibility established by court order. 1. If an agreement between the parties to terminate a temporary order for custodial responsibility under sections through has not been filed, the order terminates sixty days after the deploying parent gives notice to the other parent and any nonparent granted custodial responsibility that the deploying parent has returned from deployment. 2. A proceeding seeking to prevent termination of a temporary order for custodial responsibility is governed by law of this state other than this chapter (502) Relation to Electronic Signatures in Global and National Commerce Act. This chapter modifies, limits, and supersedes the Electronic Signatures in Global and National Commerce Act [15 U.S.C et seq.] but does not modify, limit, or supersede section 101(c) of that Act [15 U.S.C. 7001(c)] or authorize electronic delivery of any of the notices described in section 103(b) of that Act [15 U.S.C. 7003(b)]. II. SERVICEMEMBERS CIVIL RELIEF ACT (SCRA) A. Dealing with Default 7

8 B. Stay of Proceedings C. Defending Against a Stay III. SUPPORT OF MILITARY DEPENDENTS Family Support INTERIM SUPPORT REGULATIONS: Regulations of the Army, Navy, Marine Corps and Coast Guard specify the level of support required when spouses have separated or when the parents of a child are separated (or not married) and there is no court order or agreement for child support. Point of Contact: Unit Commander Nonsupport letter The interim support regulations for family support vary with each branch of the uniformed services. Each of the services has a different standard for the enforcement of support obligations for family members when there s no court order. Here s a quick overview: Army Rules Army Regulation [also located at 32 C.F.R. 584] requires a soldier to provide support for family members. In the absence of a court order or an agreement between the parties, AR establishes interim support guidelines. o Basic Allowance for Housing, BAH (RC/T). o You may obtain the BAH tables from the Defense Travel Management Office s website, o The full BAH which a SM receives is shown on the pay statement (also called a Leave and Earnings Statement, or LES) of the SM. As a general rule, the soldier must provide support in an amount equal to the full BAH (RC/T) at the with-dependents rate. o If the soldier is required to provide support to more than one group of dependents, the interim guidelines provide for a pro rata distribution. o If the family is residing in government furnished quarters, the interim support will be the difference between the BAH (RC/T) at the with-dependent rate and the BAH (RC/T) at the without-dependent rate. This is referred to as BAH-DIFF. o If both parents are in the military, the interim support for any children will be BAH-DIFF. Soldiers are required to provide support regardless of whether or not they receive any BAH. These support guidelines are mandatory (unless there is a court order or an agreement between the 8

9 parties). Failure to pay constitutes a violation of a lawful general regulation and may be punishable by court-martial. o Exception: spousal support if spouse s income > SM income Air Force Rules The Air Force will advise its members that they are expected to provide adequate financial support to family members and will encourage them to utilize civilian courts. If a member of the Air Force receives the Basic Allowance for Housing (BAH) at the with-dependents rate based on dependents that the SM refuses to support, then the BAH will be terminated and the Air Force will recoup the BAH at the with-dependent rate for periods of non-support. Marine Corps Rules The support regulation refers to a table, which is shown below, for support obligations in the absence of an agreement or court order. The regulation states that the Marine involved shall pay the greater of either the fixed amount of support for the requesting family member as found in the middle column, or else the fraction of BAH/OHA 1 (right column) based on the total number of eligible family members that exist, as shown in the left column. THE MARINE CORPS POLICY INTERIM FINANCIAL SUPPORT STANDARDS Total # of Family Members Entitled to Support Minimum Amount of Monthly Support per Requesting Family Member Share of Monthly BAH/OHA per Requesting Family Member 1 $350 1/2 2 $286 1/3 3 $233 1/4 4 $200 1/5 5 $174 1/6 6 or more $152 1/7 or etc. A commanding officer has the discretion to reduce or eliminate the interim financial support standards if: 1 OHA is overseas housing allowance. It is a monthly allowance paid to SMs assigned to a duty station outside the continental United State, except for Hawaii and Alaska, who are authorized to live in private housing. It helps to defray the housing costs and includes components which are equivalent to rent, utility and/or recurring maintenance expenses, and a move-in housing allowance. 9

10 the gross income of the complaining spouse exceeds the gross military pay of the Marine, the interim support has been provided for a continuous and uninterrupted period of 12 months, the Marine has been the victim of substantiated instance of abuse by a spouse seeking support, or the Marine is paying regular and recurring obligations such as rent or consumer debts of the family members requesting support of sufficient magnitude and duration as to justify a reduction or elimination of interim support. 2 Navy Rules The Navy nonsupport policy states that, in the absence of an agreement or order, a unit commander may use the following as a guide for the adequacy of support: Spouse only: 1/3 of gross pay Spouse and one minor child: 1/2 of gross pay Spouse and two or more children: 3/5 of gross pay Spouse and four or more children: >3/5 of gross pay One minor child (no spousal support): 1/6 of gross pay Two minor children (no spousal support): 1/4 of gross pay Three minor children (no spousal support): 1/3 of gross pay. For these purposes gross pay includes base pay and the BAH but doesn t include the basic allowance for subsistence (BAS), hazardous duty pay, sea or foreign duty pay, or incentive pay. 3 A sailor may request a waiver of spousal support based on desertion without cause, physical abuse, or for infidelity on the part of the spouse. Coast Guard Rules When there is no order or agreement, the following support scale is used: Spouse only: BAH difference plus 20% of base pay Spouse and one minor child: BAH difference plus 25% of base pay Spouse and two or more minor children: BAH difference plus 30% of base pay One minor child: 16.7% (1/6) of base pay Two minor children: 25% (1/4) of base pay Three or more minor children: 33% (1/3) of base pay. 4 2 Id. at U.S. DEP T OF NAVY, NAVAL MILITARY PERSONNNEL MANUAL art (Support of Family Members) (22 Aug. 2002), para Id. BAH difference means the monetary difference between Base Allowance for Housing at the WITH-DEPENDENTS rate and the WITHOUT-DEPENDENTS rate. 10

11 Defenses to non-support of a spouse include infidelity or desertion. Defenses to non-support of a child are inability of the SM to ascertain the whereabouts and welfare of the child, or the facts that the person seeking support does not have physical custody of the child. 5 Obtaining Documents from the Other Side, from the Government Privacy Act of When trying to obtain pay and personnel records, there are only four options: o ASK YOUR CLIENT. o DISCOVERY. o CONSENT. A consent for which is acceptable to DFAS is found at the end of this manuscript. o DIRECTLY FROM THE GOVERNMENT (COURT ORDER, SUBPOENA, DISCOVERY) Requests for Payroll Information of Servicemembers DFAS will respond to a written request in the form of a subpoena for information regarding the pay of military personnel. The request letter and subpoena should be sent to: 5 Id. 6 5 U.S.C. 552a. 11

12 Air Force DFAS Denver Center ATTN: DFAS-DCC/DE 6760 E. Irvington Place Denver, CO Army DFAS Indianapolis Center ATTN: DFAS-DCC/IN, Column 302G 8899 East 56th Street Indianapolis, IN Coast Guard US Coast Guard Pay and Personnel Center ATTN: Commanding Officer (CCB) 444 S.E. Quincy St. Topeka, KS Marine Corps DFAS Kansas City Center ATTN: DFAS-DCC/KC 1500 East Bannister Road Kansas City, MO Navy DFAS Cleveland Center ATTN: DFAS-DCC/CL, Room East 9th Street Cleveland, OH Retired Military Pay DFAS Cleveland Center ATTN: DFAS-DCC/CL 1240 East 9th Street Cleveland, OH Military Pay Military compensation: basic pay + other entitlements (BAH, BAS, Special Skill Pay, Bonuses) Guard and Reserve Pay When calculating income for support purposes, do not overlook the members of the National Guard and Reserve. Unlike active duty SMs, these Reserve Component (RC) SMs usually hold civilian jobs. Most of them are assigned to a unit that drills one weekend a month and for two weeks during Annual Training, usually during the summer. RC SMs receive pay for these drills. They receive pay statements each month and a W-2 form each January. Note that some RC SMs are designated Individual Mobilization Augmentees (IMA) and only drill once a year during Annual Training. assigned to the Individual Ready Reserve (IRR) and might only drill annually as well. Others are Resources for Understanding the LES The best websites to use in understanding and explaining military pay are: - click on the Search window and type in Understanding Your Pay which will lead to a web page explaining the various elements of pay and allowances found on the Leave and Earnings Statement. - contains information on military pay, allowances, retired pay and the BAS and BAH. 12

13 A summary of how to read an LES is found at the end of this manuscript. Rules regarding the taxation military pay and benefits can be found in IRS Publication 3, Armed Forces Tax Guide. 7 A SM may also be subject to income tax from his or her state of legal residence, or domicile. Medical Expenses Information about TRICARE can be found in the TRICARE Standard Handbook, available at the nearest uniformed services medical facility or from the TRICARE website, For medical care and health insurance, it is first necessary to determine whether the child (or spouse in an alimony case) is enrolled in the Defense Enrollment Eligibility Reporting System (DEERS). If the family is intact, the military member (also known as the sponsor ) initiates the dependent's enrollment by filling out DD Form When the family is separated, the custodial parent can start the process by mail and then come in to the nearest military base to sign the final documents. With a child over ten years old, a military dependent ID card will be issued and the child s picture will be taken. Contact the nearest military installation for more details. The location of the nearest place for enrollment or military installation can be obtained from the DEERS Telephone Center: Once a child is enrolled in DEERS, he or she is eligible to receive medical care in two ways: Medical care and medications may be obtained from military hospitals and clinics at no charge; or TRICARE can be used with civilian health care providers. It is usually best to use military facilities for medical care, since it cuts down on paperwork, time and costs. The branch of service of the enrollment site doesn t have to match the branch of service of the military parent; for example, although the father may be in the Air Force, the family members can get treatment at the nearest Navy facility. Children born outside marriage are entitled to medical care TRICARE if the following conditions are met: a. The child is acknowledged and supported by the member; or b. There is a judicial decree of paternity. A military ID card is issued to prove eligibility. If the member will not cooperate in getting a card for the child, his or her commander can coordinate issuance of the card. 7 The current version can be found at 13

14 TRICARE and Former Military Spouses In most instances the non-military spouse will lose her access to TRICARE effective one minute after midnight on the day following the entry of a final decree of divorce, dissolution or annulment. However, if the former spouse can satisfy certain criteria as a 20/20/20 spouse 8 she can maintain her full eligibility for TRICARE. These criteria are: 1) Not have remarried; 2) Not be covered under an employer provided health insurance program; 3) Have been married to the Military Spouse for at least 20 years; 4) The Military Spouse has 20 creditable years of service for retirement; and 5) At least 20 years of the marriage was concurrent with at least 20 of the years of the creditable service used to determine the Military Spouse s retirement. There is also a similar 20/20/15 9 rule for unremarried former spouses who otherwise satisfy all of the criteria as a 20/20/20 former spouse except that they have at least 15 years of concurrent time of the marriage with the Military Sponsor s 20 years of creditable service that occurred during a 20 year marriage. However for 20/20/15 unremarried former spouses who divorced after April 1, 1985 will have only one year of TRICARE eligibility after the divorce. For your reference, the Air Force Former Spouse Determination Program pamphlet on military healthcare is attached and the Handbook for Military Life Benefits 2012 can be found at Also, attached is a Q & A handout on unremarried former spouses and their Tricare and other entitlements. In applying the 20/20/20 and 20/20/15 tests, the rules become esoteric as to what periods of the Military Spouse s service were creditable for retirement. These rules vary depending upon which branch of the uniform services the Military Sponsor serves in and whether they are active duty or in a Reserve Component. There is a Former Spouse Determination Program whereby the former spouse can formally request the parent service to advise them of the number of years and months their marriage was concurrent with the creditable time used to determine the Military Spouse s retirement. The contact information for the individual offices of the uniform services are: 1) Air Force 8 10 U.S.C. 1072(2)(f) U.S.C. 1072(2)(G) and 1072(2)(H). 14

15 Personnel Center Randolph Total Force Service Centers San Antonio & Denver DSN (San Antonio) Fax (210) , DSN 665 (San Antonio) (Denver) Fax (478) , DSN 497 (Denver) 2) Army Human Resource Center of Excellence Ft Knox , Fax (502) Army National Guard Field Systems Operations Arlington , Fax (703) ) Navy Navy Personnel Command Millington (901) , Fax ) Marine Corps HQ U.S. Marine Corps Quantico Manpower & Reserve Affairs , Fax (703) ) Coast Guard Coast Guard Pay & Personnel Center Topeka Retiree & Annuitant Services , (785) , Fax ) Public Health Services Division of Commissioned Corp Officer Support Rockville (240) , Fax ) National Oceanic Atmospheric Administration Commissioned Personnel Center Silver Springs (301) , ext 158, Fax 4140 The rules on issuing Military ID Cards for military dependents and former spouses is a joint service regulation. The Air Force serves as the agency with primary responsibility for its development and publication. You can access a copy by using your Internet Browser s search engine and typing in AFI _IP. Chapter 3 of the regulation deals specifically with former spouses and chapter 4 addresses children. A copy of the regulation is attached. 15

16 Continued Health Care Benefit Program (CHCBP) If the SM s spouse for some reason loses eligibility to medical care (such as due to divorce), she may purchase a conversion health policy 10 under the DOD Continued Health Care Benefit Program (CHCBP). CHCBP is not part of TRICARE, but a health insurance plan negotiated between the Secretary of Defense and a private insurer. She must apply for coverage within 60 days of losing her TRICARE eligibility. DoD sets the premiums for CHCBP, and they must be paid quarterly. For 2013 the premiums were set at $1138. It is essential that the CHCBP premiums be paid on time and coverage not lapse, because re-enrollment will not be permitted. Upon purchase of the CHCBP policy the former spouse is entitled, upon request, to medical care until the date that is 36 months after (1) the date on which the final decree of divorce, dissolution or annulment occurs or (2) the date the one-year extension of dependency under 10 U.S.C. 1072(2)(H) (for 20/20/15 spouses with divorce decrees on or after April 1, 1985) expires, whichever is later. 11 For further information on CHCBP contact a military medical treatment facility health benefits advisor, or contact the CHCBP Administrator, P.O. Box 1608, Rockville, MD ( ). General information and enrollment procedures are also available online at: For certain unremarried former spouses who cannot satisfy the 20/20/20 or 20/20/15 rules nevertheless be eligible for indefinite medical coverage through CHCBP (under 10 U.S. Code 1078a and 32 CFR ). At present DoD is reviewing who may qualify for indefinite CHCBP coverage. The criteria DoD uses at this time that the former spouse must: 1) Have not remarried prior to age 55; 2) Not be covered under a TRICARE program (20/20/20 and 20/20/25 former spouses); 3) Receive a portion of military retired pay; or receive a survivor annuity (i.e., the Survivor Benefit Plan, or SBP) [NOTE It is strongly recommended that BOTH of these be involved, not just either-or ] 4) Have been divorced after the member retired. may The current DoD contractor for CHCBP is Humana Military Healthcare Services U.S.C. 1086(a) U.S.C. 1078a(g)(1)(C). 16

17 IV. MILITARY PENSION DIVISION A. Must Have Documents I. Active Duty/Reserve 1. Thrift Savings Plan (TSP) Statement 2. Leave and Earnings Statement (LES) I. Practice Tip: Request more than one! 3. Retirement Points Annual Statement (RPAS) II. Retired Active Duty 1. Letter from DFAS showing expected amount of pay and calculations Issued 6 months prior to retirement 2. All Retiree Account Statements (RAS) issued since the date of retirement 3. Retirement orders 4. All disability rating decision letters from the Department of Veterans Affairs (VA) 5. DD Form 214/NGB 22 Issued upon discharge 6. Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage, DD Form Data of Payment for Retired Personnel, DD Form Forms 1099-R 9. Thrift Savings Plan Statements III. Retired Guard or Reserve Retirement 1. All Retired Points Annual Statements (RPAS) 2. Notice of Eligibility (NOE or 20 Year Letter), sent upon attainment of 20 creditable years of Guard or Reserve service 3. Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate, DD Form Application for retirement 5. Retirement Orders 6. All disability rating decision letters from the Department of Veterans Affairs (VA) 7. Thrift Savings Plan Statements B. Jurisdiction to Divide the Pension - Domicile, Consent and Residence I. USFSPA 10 U.S.C. 1408(c)(4) II. Federal Jurisdictional Tests: A state may only exercise jurisdiction over a military SM s pension rights if: 1. That state is his or her domicile, OR I. What is it? I. Physical Presence II. Intent to Remain II. How to Find? I. LES State Taxes II. Contacts taxes, voting, vehicle registration, drivers license, bank accounts III. DD Form The SM consents to the exercise of the jurisdiction, OR 3. The SM resides there (for reasons other than military assignment in that state or territory) 17

18 C. Language for the Order or Agreement I. Rule #1: Use the right document! 1. USFSPA only allows direct pension payments pursuant to a final decree of divorce, dissolution, annulment, or legal separation issued by a court or a property settlement that is ratified or approved by the court and issued incident to such a final decree. II. Rule #2: Use the Right Language 1. The pension division clauses must include: I. The names and addresses of the parties, as well as their SSN s; II. The years of marriage and of military service; III. The military member s grade or rank; IV. A statement that the SCRA rights of the member have been honored; V. Jurisdictional findings (domicile, consent or residence) under 10 U.S.C. 1408(c)(4); VI. A statement that DFAS should pay the spouse at his/her address as shown therein VII. A statement as to what DFAS will pay the spouse I. Percentage II. Fixed Dollar III. Formula IV. Hypothetical V. Guard/Reserve I. Marital Points / Total Points II. Time (all variables must be filled) III. Rule #3: Send the Right Documents 1. Certified copy of the divorce judgment 2. Certified copy of the MPDO 3. DD Form 2293 IV. Rule #4: Send to the Right Place 1. For service on DFAS, the addresses of the military finance centers are: I. ARMY, NAVY, AIR FORCE, MARINES: Defense Finance and Accounting Service - Cleveland, ATTN: DFAS-GAL/CL, P.O. Box , Cleveland, OH ; (216) II. COAST GUARD: Commanding Officer (LGL), United States Coast Guard, Human Resources Service and Information Center, 444 S.E. Quincy Street, Topeka, KS ; (785) III. PUBLIC HEALTH SERVICE: ATTN: Retired Pay Section, CB, Division of Commissioned Personnel, PUBLIC HEALTH SERVICE, Room 4-50, 5600 Fishers Lane, Rockville, MD ; (800) V. Helpful Tips: 1. Send via certified mail, return receipt requested 2. Payments begin 90 days after service of the decree on DFAS or the start of retired pay 3. Provide for direct payments in the interim D. The "10/10 Case" and DFAS I. Remember that the "10-year test" is not a jurisdictional requirement for dividing military pensions. Rather, it is an "enforcement requirement," meaning that pension division cannot be enforced by direct pay from DFAS unless this test is met. II. 10 Year Test: There must be 10 years of marriage which overlap 10 years of service creditable toward retirement III. Direct payments from DFAS to a non-sm spouse are available when: 1. The retired pay is divided by a court order; 18

19 General Validation Questions 2. There is a statement in the order that the SM s rights under the Sevicemembers Civil Relief Act (formerly the Soldiers and Sailors Civil Relief Act) were observed; 3. The amount directly payable to the former spouse as pension division is not more than 50% of the retiree's disposable retired pay; 4. The "10 year test" has been met; 5. The court order must provide for payment from military retired pay, and the amount must be in an acceptable format (using one of the four methods of pension division allowed by DFAS); and 6. The order must show that the court has jurisdiction over the SM in accordance with USFSPA provisions. CHECKLIST FOR MILITARY PENSION DIVISION ORDERS Is the member active duty, reserve/guard, or retired? If retired, what is the member s retirement date? Is the member receiving temporary or permanent disability retired pay? Was a final decree of divorce, dissolution, annulment or legal separation submitted? Did the clerk of court certify the order? What is the date of divorce? Has the appeal time expired? Was a fully completed DD Form 2293 submitted? Are any additional documents required (such as a marriage certificate), or is the order/application invalid for any reason? Were the member's rights under the Servicemembers Civil Relief Act observed? What is the member s PEBD (pay entry base date)? Was the marriage date provided? (If there is a 10/10 overlap between years of marriage and military service, the system will automatically calculate whether the 10 year overlap of marriage and service requirement was met). Does the court have 10 USC 1408 (c)(4) jurisdiction over the member -- by reason of residence (not due to military assignment), domicile or consent? Does the order provide for the payment of a percentage, fixed dollar amount, formula, or hypothetical award? If the division of retired pay is based on a formula (i.e., marital fraction), does the order provide the numerator? For Reserve/Guard members, is the formula expressed in reserve retirement points? If the division of retired pay is based on a hypothetical retired pay award, is the award language valid? Are all the variables provided? A. For active duty members entering service before September 8, 1980, the variables are: 19

20 1. Percentage awarded. 2. Rank for hypothetical retired pay calculation. 3. Number of years of service for hypothetical retired pay calculation. 4. Hypothetical retirement date. -OR- 1. Percentage awarded. 2. Hypothetical retired pay base (base pay figure to be used in hypothetical retired pay calculation). 3. Number of years of service for hypothetical retired pay calculation. B. For active duty members entering service on or after September 8, 1980 ( high 36 retirees): 1. Percentage awarded. 2. Hypothetical retired pay base (base pay figure to be used in retired pay calculation). 3. Number of years of service for hypothetical retired pay calculation. C. For Reserve/Guard members: 1. Percentage awarded. 2. Rank for hypothetical retired pay calculation. 3. Number of reserve retirement points for hypothetical retired pay calculation. 4. Number of years of service for basic pay to be used in hypothetical retired pay calculation. 5. Hypothetical date of eligibility to receive retired pay. Service of application (recommend this be done by certified or registered mail, return receipt requested) Final decree of divorce, separation or annulment certified within 90 days prior to service of pension order Name, address, and SSN of military member Name, address, and SSN of former spouse Order has not been amended, superseded, or set aside Order is final decree, no appeal may be taken, no appeal had been taken within time permitted Former spouse married to member at least 10 years during at least 10 years creditable service: 20

21 Start of service date: Retirement date: Marriage date: Divorce date: E. Indemnification Clauses I. The parties have agreed upon a set level of payments to Plaintiff to guarantee income to her based upon Defendant s military retired pay without any deductions for disability payments or any other reason. Defendant shall indemnify Plaintiff as to any reduction in her payments from what they would have been based solely on length of service. The parties consent to the court s retaining continuing jurisdiction to modify the pension division payments or the property division specified herein if Defendant s actions or acquiescence results in the waiver of military retired pay in favor of disability payments or if he should take any other action which reduces Plaintiff s share or amount herein. This retention of jurisdiction is to allow the court to adjust Plaintiff s share or amount to the pre-reduction level, to reconfigure the property division or to award compensatory alimony or damages so as to carry out the original intent of the court. F. Concurrent Retirement and Disability Pay, Combat-Related Special Compensation, Military Disability Retired Pay I. Under USFSPA, the court can only divide disposable retired pay. 12 According to USFSPA, disposable retired pay means gross retired pay minus: 1. most disability compensation; and 2. Survivor Benefit Plan premiums. II. The disability deduction is either a VA waiver, if the retiree has a rating of less than 50%, or the reduction caused by electing CRSC III. The retiree should eventually receive the full amount of retired pay with a VA rating of 50-90% through CRDP IV. Electing CRSC wipes out CRDP G. Dealing with the "Less Than 10/10" Case I. No Direct Payments II. Offset present value v. Opt for deferred payments H. Survivor Benefit Plan - Negotiating FOR and AGAINST I. Strategies for FS 1. Unique Benefits U.S.C. ' 1408(c)(1). 21

22 II. 2. Premiums already paid Strategies for the SM 1. Silence 2. Disadvantages 3. Value 4. Life Insurance 5. Educate your judge Action or issue Comments SBP is a unitary benefit, cannot be divided between current spouse and former spouse Election: Servicemember on active duty is automatically covered; at retirement an election must be made, and spouse concurrence is necessary if member chooses no SBP, child coverage or coverage at base amount less than his/her full retired pay Election - Guard/Reserve: There is opportunity to make election at the 20-year mark (i.e., after 20 years of creditable Guard/Reserve service). Spouse concurrence needed for Option A (defer decision till age 60) or Option B (elect coverage, but to start at age 60); no spouse consent needed for Option C (immediate coverage). If representing the nonmilitary spouse and survivor annuity is desired, be sure order requires member/retiree to elect former spouse coverage, with full retired pay as base amount Option C is also called RC-SBP, or Reserve Component SBP. SBP benefit payments equal 55% of the selected base amount, which can be $300 or above If representing the member/retiree and SBP coverage for the FS is not desired, make sure that the base amount selected yields about the same death benefit as the lifetime benefit, so that the FS doesn t profit by retiree s death. Some people call this a mirror award. This can only be done if the active-duty member is about to retire at the time of the court order, or if the Guard/Serve member elected Option A and the order is being entered at age 60 since only at those points in time can one determine the retired pay of the member. If representing the member/retiree, try to negotiate a reduction of the FS s share of the military pension to reflect the additional cost of the SBP premium, which is taken out of the retired pay If representing the member/retiree, ask the court to value the SBP, present evidence on this, and then argue that the present value must be placed on the FS s side of the property division ledger SBP premium is 6.5% of selected base amount (in active duty cases), payable out of retired pay before taxes. It is about 10% for Reserve Component SBP coverage. The premium is taken off the top and deducted before division of disposable retired pay, so both parties pay in same shares as their shares of the retired pay. This may require hiring a CPA, economist or actuary. When member/retiree is to submit SBP election to DFAS, make sure this is done within one year of divorce. Enclose divorce 22

23 decree and SBP application form titled Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage (DD Form ) When spouse/former spouse applies, be sure to enclose copy of divorce decree that includes language about SBP coverage and Survivor Benefit Plan Request for Deemed Election (DD Form ). Above one-year deadlines are mandated by statute. SBP is reduced by Dependency and Indemnity Compensation in certain circumstances. By federal law, the deemed election request must be received within one year of the order that requires SBP. If above deadlines are exceeded, apply to the appropriate Board for the Correction of Military Records for relief For information, go to Dec2002Eng.doc for full information, or call I. Client Overview P Pension Division S Survivor Benefit Plan H Health Care Options A Automobile Insurance W Waiver for Disability Payments SAMPLE ARMY NONSUPPORT LETTER May 28, 2012 Commander of Corporal Jack A. Dewlap, Company C, 12 th Humvee Battalion Corps Intelligence Group Ft. Swampy, East Carolina Re: Nonsupport Complaint by Mrs. Anna Dewlap 23

24 Dear sir/madame, I am writing on behalf of Mrs. Anna Dewlap, the wife of Corporal Jack Dewlap, a member of your command. The parties separated on May 1, 2007, and at this point Mrs. Dewlap is residing here in King City, East Carolina, with her widowed mother. As her attorney, I am writing to ask that you assist in obtaining regular monthly support payments for Mrs. Dewlap and their three minor children. Mrs. Dewlap has had no payment of support this month, and she reports that her husband has told her by telephone that he intends to bring her to her knees until she returns to him and begs forgiveness. I understand that, in the absence of an order or agreement for support, a soldier must comply with the interim support requirements of Army Regulation , and that you are required to counsel him and take action to ensure that the appropriate amount of support is sent each month. Thank you in advance for your help. We look forward to your prompt reply. Very truly yours, [signature block] 24

25 AR and the Single Soldier A single soldier who has... a child (or children) born out of wedlock... whose paternity has been legally established... whose paternity has not been legally established... and no child support order exists,* then... and a child support order exists, then... will have NO support requirement under AR will pay his/her BAH (RC/T) WITH until a child support order is established.** the amount in the child support order is enforced. * Of course, it is rare that a judicial establishment of paternity exists without an accompanying child support order. ** If the soldier is supporting multiple children who reside in different family units, each child who is not covered by a child support order will receive a pro-rata share of the soldier s BAH (RC/T) 25

26 Family Support for the Married Soldier under AR Soldier is married to spouse who is active-duty servicemember civilian No additional dependents Custodial parent of all dependents Not living in government housing Living in government housing * $0 (no support between servicemembers) BAH (RC/T) Diff Dependents in All dependents in single $0 family unit separate family units ** Pro-rata share of BAH (RC/T) WITH BAH (RC/T) WITH (until family leaves government housing) NOTE A servicemember must pay BAH (RC/T) to his dependents only when there is no court order (i.e., divorce decree, child support order, etc.) or separation agreement with a financial support provision. BAH (RC/T) is intended to be interim support only, not a permanent means of family support. * For Army purposes, government housing means on-post quarters (i.e., family housing), NOT lowincome housing (i.e., HUD homes). 26

27 How to read an active duty Army Leave and Earning Statement Your pay is your responsibility. This is a guide to help you understand your Leave and Earnings Statement (LES). The LES is a comprehensive statement of a member's leave and earnings showing your entitlements, deductions, allotments (fields not used for Reserve and National Guard members), leave information, tax withholding information, and Thrift Savings Plan (TSP) information. Your most recent LES can be found 24 hours a day on mypay. If members receive Career Sea Pay, the Sea Service Counter will still be displayed in the remark portion of the LES. The LES remains one page in length. Verify and keep your LES each month. If your pay varies significantly and you don't understand why, or if you have any questions after reading this publication, consult with your disbursing/finance office. Fields 1-9 contain the identification portion of the LES. 1 NAME: The member s name in last, first, middle initial format. 2 SOC. SEC. NO.: The member s Social Security Number. 3 GRADE: The member s current pay grade. 4 PAY DATE: The date the member entered active duty for pay purposes in YYMMDD format. This is synonymous with the Pay Entry Base Date (PEBD). 5 YRS SVC: In two digits, the actual years of creditable service. 6 ETS: The Expiration Term of Service in YYMMDD format. This is synonymous with the Expiration of Active Obligated Service (EAOS). 7 BRANCH: The branch of service, i.e., Navy, Army, Air Force. 8 ADSN/DSSN: The Disbursing Station Symbol Number used to identify each disbursing/finance office. 27

28 9 PERIOD COVERED: This is the period covered by the individual LES. Normally it will be for one calendar month. If this is a separation LES, the separation date will appear in this field. Fields 10 through 24 contain the entitlements, deductions, allotments, their respective totals, a mathematical summary portion, date initially entered military service, and retirement plan. 10 ENTITLEMENTS: In columnar style the names of the entitlements and allowances being paid. Space is allocated for fifteen entitlements and/or allowances. If more than fifteen are present the overflow will be printed in the remarks block. Any retroactive entitlements and/or allowances will be added to like entitlements and/or allowances. 11 DEDUCTIONS: The description of the deductions are listed in columnar style. This includes items such as taxes, SGLI, Mid-month pay and dependent dental plan. Space is allocated for fifteen deductions. If more than fifteen are present the overflow will be printed in the remarks block. Any retroactive deductions will be added to like deductions. 12 ALLOTMENTS: In columnar style the type of the actual allotments being deducted. This includes discretionary and non-discretionary allotments for savings and/or checking accounts, insurance, bonds, etc. Space is allocated for fifteen allotments. If a member has more than one of the same types of allotment, the only differentiation may be that of the dollar amount. 13 +AMT FWD: The amount of all unpaid pay and allowances due from the prior LES TOT ENT: The figure from Field 20 that is the total of all entitlements and/or allowances listed. 15 -TOT DED: The figure from Field 21 that is the total of all deductions. 16 -TOT ALMT: The figure from Field 22 that is the total of all allotments. 17 = NET AMT: The dollar value of all unpaid pay and allowances, plus total entitlements and/or allowances, minus deductions and allotments due on the current LES CR FWD: The dollar value of all unpaid pay and allowances due to reflect on the next LES as the +AMT FWD. 19 = EOM PAY: The actual amount of the payment to be paid to the member on End-of-Month payday TOTAL: The total amounts for the entitlements and/or allowances, deductions and allotments respectively. 23 DIEMS: Date initially entered military service: This date is used SOLELY to indicate which retirement plan a member is under. For those members with a DIEMS date prior to September 8, 1980, they are under the FINAL PAY retirement plan. For those members with a DIEMS date of September 8, 1980 through July 31, 1986, they are under the HIGH-3 retirement plan. For those members with a DIEMS date of August 1, 1986 or later, they were initially under the REDUX retirement plan. This was changed by law in October 2000, when they were placed under the HIGH-3 plan, with the OPTION to return to the REDUX plan. In consideration of making this election, they become entitled to a $30,000 Career Service Bonus. The data in this block comes from PERSCOM. DFAS is not responsible for the accuracy of this data. If a member feels that the DIEMS date shown in this block is erroneous, they must see their local servicing Personnel Office for corrective action. 24 RET PLAN: Type of retirement plan, i.e. Final Pay, High 3, REDUX; or CHOICE (CHOICE reflects members who have less than 15 years service and have not elected to go with REDUX or stay with their current retirement plan). Fields 25 through 32 contain leave information. 25 BF BAL: The brought forward leave balance. Balance may be at the beginning of the fiscal year, or when active duty began, or the day after the member was paid Lump Sum Leave (LSL). 26 ERND: The cumulative amount of leave earned in the current fiscal year or current term of enlistment if the member reenlisted/extended since the beginning of the fiscal year. Normally increases by 2.5 days each month. 27 USED: The cumulative amount of leave used in the current fiscal year or current term of enlistment if member reenlisted/extended since the beginning of the fiscal year. 28 CR BAL: The current leave balance as of the end of the period covered by the LES. 29 ETS BAL: The projected leave balance to the member s Expiration Term of Service (ETS). 28

29 2015 Family Law Seminar North Dakota November 19, LV LOST: The number of days of leave that has been lost. 31 LV PAID: The number of days of leave paid to date. 32 USE/LOSE: The projected number of days of leave that will be lost if not taken in the current fiscal year on a monthly basis. The number of days of leave in this block will decrease with any leave usage. Fields 33 through 38 contain Federal Tax withholding information. 33 WAGE PERIOD: The amount of money earned this LES period that is subject to Federal Income Tax Withholding (FITW). 34 WAGE YTD: The money earned year-to-date that is subject to FITW. Field 35 M/S. The marital status used to compute the FITW. 36 EX: The number of exemptions used to compute the FITW. 37 ADD L TAX: The member specified additional dollar amount to be withheld in addition to the amount computed by the Marital Status and Exemptions. 38 TAX YTD: The cumulative total of FITW withheld throughout the calendar year. Fields 39 through 43 contain Federal Insurance Contributions Act (FICA) information. 39 WAGE PERIOD: The amount of money earned this LES period that is subject to FICA. 40 SOC WAGE YTD: The wages earned year-to-date that are subject to FICA. 41 SOC TAX YTD: Cumulative total of FICA withheld throughout the calendar year. 42 MED WAGE YTD: The wages earned year-to-date that are subject to Medicare. 43 MED TAX YTD: Cumulative total of Medicare taxes paid year-to-date. Fields 44 through 49 contain State Tax information. 44 ST: The two digit postal abbreviation for the state the member elected. 45 WAGE PERIOD: The amount of money earned this LES period that is subject to State Income Tax Withholding (SITW). 46 WAGE YTD: The money earned year-to-date that is subject to SITW. Field 47 M/S. The marital status used to compute the SITW. 48 EX: The number of exemptions used to compute the SITW. 49 TAX YTD: The cumulative total of SITW withheld throughout the calendar year. Fields 50 through 62 contain additional Pay Data. 50 BAQ TYPE: The type of Basic Allowance for Quarters being paid. 51 BAQ DEPN: A code that indicates the type of dependent. A - Spouse C -Child D - Parent G Grandfathered I -Member married to member/own right K - Ward of the court L - Parents in Law R - Own right S - Student (age 21-22) T - Handicapped child over age 21 W - Member married to member, child under VHA ZIP: The zip code used in the computation of Variable Housing Allowance (VHA) if entitlement exists. 53 RENT AMT: The amount of rent paid for housing if applicable. 54 SHARE: The number of people with which the member shares housing costs. 55 STAT: The VHA status; i.e., accompanied or unaccompanied. 56 JFTR: The Joint Federal Travel Regulation (JFTR) code based on the location of the member for Cost of Living Allowance (COLA) purposes. 57 DEPNS: The number of dependents the member has for VHA purposes. 58 2D JFTR: The JFTR code based on the location of the member s dependents for COLA purposes. 59 BAS TYPE: An alpha code that indicates the type of Basic Allowance for Subsistence (BAS) the member is receiving, if applicable. This field will be blank for officers. o B - Separate Rations o C - TDY/PCS/Proceed Time o H - Rations-in-kind not available o K - Rations under emergency conditions 29

30 2015 Family Law Seminar North Dakota November 19, CHARITY YTD: The cumulative amount of charitable contributions for the calendar year. 61 TPC: This field is not used by the active component of any branch of service. 62 PACIDN: The activity Unit Identification Code (UIC). This field is currently used by Army only. Fields 63 through 75 contain Thrift Savings Plan (TSP) information/data. 63 BASE PAY RATE: The percentage of base pay elected for TSP contributions. 64 BASE PAY CURRENT: Reserved for future use. 65 SPECIAL PAY RATE: The percentage of Specialty Pay elected for TSP contribution. 66 SPECIAL PAY CURRENT: Reserved for future use. 67 INCENTIVE PAY RATE: Percentage of Incentive Pay elected for TSP contribution. 68 INCENTIVE PAY CURRENT: Reserved for future use. 69 BONUS PAY RATE: The percentage of Bonus Pay elected towards TSP contribution. 70 BONUS PAY CURRENT: Reserved for future use. 71 Reserved for future use. 72 TSP YTD DEDUCTION (TSP YEAR TO DATE DEDUCTION): Dollar amount of TSP contributions deducted for the year. 73 DEFERRED: Total dollar amount of TSP contributions that are deferred for tax purposes. 74 EXEMPT: Dollar amount of TSP contributions that are reported as tax exempt to the Internal Revenue Service (IRS). 75 Reserved for future use 76 REMARKS: This area is used to provide you with general notices from varying levels of command, as well as the literal explanation of starts, stops, and changes to pay items in the entries within the ENTITLEMENTS, DEDUCTIONS, and ALLOTMENTS fields. 77 YTD ENTITLE: The cumulative total of all entitlements for the calendar year. 78 YTD DEDUCT: The cumulative total of all deductions for the calendar year. 30

31 2015 Family Law Seminar North Dakota November 19, 2015 PRIVACY ACT RELEASE FORM DATA REQUIRED BY THE PRIVACY ACT OF 1974 (5 U.S.C. 552a). AUTHORITY: Title 5 U.S.C. 552, Title 5 U.S.C. 552a, Title 5 U.S.C. 551, DoD R, and DoD R. PURPOSE: To obtain and maintain information upon which to base a reply or inquiry. ROUTINE USES: Data may be provided under any of the DoD "Blanket Routine Uses" published at Disclosure: Voluntary; however, if you fail to provide all the requested information DFAS may not be able to fulfill your request in a timely manner. Pursuant to the Privacy Act of 1974, I hereby authorize to obtain information from any federal government records information regarding my entitlements as the former spouse of a retired military member, including but not limited to, records regarding military retired pay (as shown on the Retiree Account Statement), the Survivor Benefit Plan, VA disability compensation, current pay and allowances (as shown of the Leave and Earnings Statement) or any other benefit or entitlement from the federal government. Special instructions or limitations (or none ) Signature Date Printed Name Address City State Zip Home Telephone Work Telephone Date of Birth Claim Number (if applicable) 31

32 2015 Family Law Seminar North Dakota November 19, 2015 MOTION AND LETTER FOR NAVY DOCS NORTH CAROLINA COUNTY OF BUCKINGHAM IN THE GENERAL COURT OF JUSTICE DISTRICT COURT DIVISION FILE NO. 08 CV 223 ROGER K. BAIRD, JR., Plaintiff v. MOTION FOR NAVY RECORDS NANCY L. BAIRD, Defendant Plaintiff hereby moves this Court pursuant to N.C.G.S. 1A and Rule 45 of the Rules of Civil Procedure for an order granting a subpoena directed to the United States Navy for the production of documents, as further explained below. The Plaintiff shows the court that: BACKGROUND 1) Plaintiff is an officer in the U.S. Navy, currently stationed in Japan and the Defendant is a Navy officer, currently stationed in Florida. The parties were married to each other on April 12, 1997 and subsequently separated from each other on October 9, There are two minor children born during the parties marriage: Ellen G. Baird, born August 2, 2001 and Lewis R. Baird, born April 19, ) On November 3, 2008, Plaintiff filed his Complaint seeking, inter alia, child custody. DISCOVERY REQUESTS FROM BOTH PARTIES 3) Both parties have asked for all documentation that the other party has related to a disciplinary hearing involving the conduct of a certain Commander John Q. Doe in 32

33 2015 Family Law Seminar North Dakota November 19, 2015 December Mr. Doe is the former commander of the Navy s Far East Intelligence Group, based at Naval Air Facility Watusi in Japan. Upon information and belief, Defendant had an extramarital affair with Mr. Doe, this conduct destroyed the Baird marriage, it also destroyed Mr. Doe s career and it had an impact on the care and custody of the minor children. 4) Plaintiff in discovery has requested that Defendant admit this affair and explain the consequences that her behavior with Mr. Doe had on the family, including the effects on the minor children. 5) Then-Commander Doe was relieved of his duty as commander of the Group on December 23, He received nonjudicial punishment, referred to as Admiral s Mast, as a direct result of his committing adultery with the wife of a fellow officer. 6) The parties both seek to obtain from each other all documentation about these proceedings in December Both parties have demanded, through their attorneys, to review this documentation. RELEVANCE TO THE CASE 7) The Plaintiff, by way of discovery, has requested that Defendant both admit the affair and explain specific details from Defendant as to the nature of her relationship with Mr. Doe, its duration and its impact on the minor children. 8) The information in Mr. Doe s case file associated with the administrative action taken in December 2008, will tend to show that Mr. John P. Doe did, in fact, have an extramarital affair with the Defendant. It will also show the nature, frequency and duration of the Defendant s conduct with Mr. Doe, which directly correlates to her absences. 9) The case file will show documents, s, and witness statements regarding the lapses of time in which Defendant left the minor children to be with Mr. Doe. 10) The case file will also assist in impeaching Defendant on her sworn statements if she denies that she had an affair, is untruthful as to its nature or duration, denies that her behavior had an impact on the children or claims that her conduct never resulted in their being left alone, with no supervision. 33

34 2015 Family Law Seminar North Dakota November 19, 2015 PROCEDURES FOR OBTAINING NAVY RECORDS 11) The United States Navy, pursuant to its publication, SECNAVINST A, Enclosures (3) and (4), describes the proper procedure for obtaining Navy records. The Secretary of the Navy s sole delegate for service of process is the General Counsel of the Navy, who must be served with a subpoena by certified mail or Federal Express at the following address: General Counsel of the Navy, Navy Litigation Office, 720 Kennon Street SE, Bldg. 36 Room 233, Washington Navy Yard, DC The office of the General Counsel of the Navy will subsequently forward the matter to the proper determining authorities for action. 12) In addition to a subpoena requesting specified Navy records, a detailed written request must be submitted to the appropriate determining authority to assure an informed and timely evaluation of the request. The outline of information to be provided is included in Enclosure (4) of SECNAVINST A. Additionally, counsel for the Plaintiff has prepared this detailed written request to accompany the court s subpoena to the General Counsel of the Navy and it is included with this motion. 13) The subpoena in this case should request the following: a) The Navy s internal investigation of the alleged inappropriate relationship between John P. Doe and Nancy L. Baird, in Japan, Okinawa, and elsewhere during and before December 2008 including witness statements, s; and b) The Navy s record of administrative, punitive, nonjudicial or other action against Commander Doe. WHEREFORE the Plaintiff prays that this Court: 1) Sign a subpoena (copy attached hereto) for production of the United States Navy s disciplinary and investigative files for Commander John P. Doe. 2) Grant such other relief for Plaintiff as is just and proper. Date: /13 Jack M. Wilson, Attorney for Plaintiff 9926 Greenwood Drive Warren, NC

35 2015 Family Law Seminar North Dakota November 19, 2015 NORTH CAROLINA COUNTY OF BUCKINGHAM IN THE GENERAL COURT OF JUSTICE DISTRICT COURT DIVISION FILE NO. 08 CV 223 ROGER K. BAIRD, JR., Plaintiff v. SUBPOENA FOR NAVY RECORDS NANCY L. BAIRD, Defendant Pursuant to N.C.G.S. 1A and Rule 45 of the North Carolina Rules of Civil Procedure, the court issues this subpoena: To: General Counsel of the Navy, Navy Litigation Office, 720 Kennon Street SE, Bldg. 36 Room 233, Washington Navy Yard, DC Documents: 1) The Navy s internal investigation of the alleged inappropriate relationship between Commander John P. Doe, SSN , and Nancy L. Baird, in Japan, Okinawa, and elsewhere during and before December 2008 including witness statements, documents and s; and 2) The Navy s record of administrative, punitive, nonjudicial or other action against Commander Doe. Place for Production: Buckingham County Courthouse, Room 141, Warren, NC (P.O. Box 355) Date: April 17, 2013 Time: 9:00 a.m. Date: /13 Ellen G. Lindhoffer, Judge Presiding 35

36 2015 Family Law Seminar North Dakota November 19, 2015 March 1, 2013 General Counsel of the Navy Navy Litigation Office 720 Kennon Street SE Bldg. 36 Room 233 Washington Navy Yard, DC Re: SECNAVINST A, Enclosure (4) Subpoena for Navy Records To Whom It May Concern: Pursuant to SECNAVINST A, Enclosure (4): Contents of a Proper Request or Demand, the undersigned attorney for the Plaintiff herein provides the requisite written request for documents to be produced pursuant to a subpoena duces tecum (attached hereto). In making said request, we disclose the following: 1. Identification of parties, their counsel, and the nature of the litigation: a Case Caption: Roger K. Baird, Jr. vs. Nancy L. Baird b Docket Number: 08 CVD c Court: District Court, Buckingham County, North Carolina d Plaintiff: Roger K. Baird, Jr. e Defendant: Nancy L. Baird f Attorney for Plaintiff: Jack M. Wilson, 9926 Greenwood Drive, Warren, NC 27604; phone number ; fax number g Attorney for Defendant: Janet Kelly, 208 Green Valley Ave., Warren, NC 27604; phone number ; fax number h Date and Time that documents must be produced: April 17, 2009, at 9:00 a.m. i Location for Production: Clerk of Court, ATTN: District Court Judge Ellen G. Lindhoffer, PO Box 355, Warren, NC Buckingham County Courthouse, Room 141, Warren, NC Identification of information or documents requested a Documents requested are the case files associated with the administrative action taken against Commander John P. Doe, former commander of the Far East Intelligence Group based at Naval Air Facility Watusi in Japan, in December b The location of the requested case files associated with the administrative action taken against Commander John P. Doe in December 2008 is at Naval Air Facility Watusi Japan. 3. Description of why the information is needed a Summary and Posture of Case: Commander Roger K. Baird, Jr., the Plaintiff, filed a lawsuit in North Carolina against the Defendant, Nancy L. Baird, for claims related to child custody, child support, and equitable distribution. The assigned judge on the case is District Court Judge Ellen G. Lindhoffer. The minor children currently reside with Plaintiff in Japan. 36

37 2015 Family Law Seminar North Dakota November 19, 2015 b c Defendant current resides in Norman, Oklahoma. On May 13, 2009 the Warren County District Court will conduct a temporary child custody hearing. Statement of Relevance: The information in the case files associated with the administrative action taken in May 2008 against former Commander John P. Doe, former commander of the Japan-based Carrier Air Wing 5 based at Naval Air Facility Watusi in Japan, is relevant for the foregoing reasons: i. It will show that the Defendant carried on an extramarital affair with Commander Doe; ii. It will also show that she was absent from the children during the periods of time when she was with Commander Doe; iii. When she was absent, depending on the dates and times, the children were either left alone or in the care and custody of Commander Baird, who is petitioning for custody of the children. Testimony Sought: Plaintiff seeks no factual, expert or opinion testimony from the U.S. government. 4. Additional Considerations a Plaintiff is willing to pay in advance all reasonable expenses and costs of searching for and producing documents associated with the administrative action taken against Commander John P. Doe in May b We will provide Defendant s attorney with a copy of all correspondence and documents originated by the determining authority so they may have the opportunity to submit any related litigation requests and participate in any discovery. If the General Counsel of the Navy requires any additional information in evaluating this request, please let our office know and we shall provide same. Sincerely, Jack M. Wilson Attorney at Law 37