Posts tagged with "Military Pension Division Order"

Estimating Military Retired Pay

Mark E. Sullivan*Mr. Sullivan is a retired Army Reserve JAG colonel.  He practices family law in Raleigh, North Carolina and is the author of The Military Divorce Handbook (Am. Bar Assn., 3rd Ed. 2019) and many internet resources on military family law issues.  A Fellow of the American Academy of Matrimonial Lawyers, Mr. Sullivan has been a board-certified specialist in family law since 1989.  He works with attorneys nationwide as a consultant on military divorce issues in drafting military pension division orders.  He can be reached at 919-832-8507 and at law@ncfamilylaw.com.

 

Introduction

From time to time, our office gets inquiries by phone or e-mail regarding how to estimate the military retired pay of a member of the uniformed services.  This term means the “armed forces,” that is, the Army, Navy, Air Force, Marine Corps, and Coast Guard, and also the commissioned corps of the Public Health Service (PHS) and the National Oceanic and Atmospheric Administration (NOAA).  The rules for calculating the retired pay of the active-duty “member” one of these service components, technically called “Regular Retirement” pay, are set out in 10 U.S.C. § 1407 and 1409 for the armed services, and at equivalent sections of the U.S. Code for PHS and NOAA officers.  Below is a simplified explanation of the rules for calculation.

“What’s the Formula?”

The basic formula for determining one’s retired pay is Retired Pay Base times Retired Pay Multiplier, or RPB X RPM.  This can be illustrated as:

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The usual percentage is 2.5%, but it’s 2.0% when a) the servicemember elected to receive a mid-career cash bonus known as CSB/Redux, or when b) the member is in the Blended Retirement System.

High-3 Pay

“High-3 Pay” is the average of the highest three years (not necessarily continuous) of base pay for a member, expressed on a monthly basis.

  • How to obtain the documents and do the calculations is set out in the Silent Partner infoletter, “Military Pension Division and the Frozen Benefit Rule: Nuts ‘n’ Bolts,” found at nclamp.gov > Publications.
  • The quick way to estimate this is to take the current pay of the member, obtained from his or her Leave and Earnings Statement, or “LES” (or other equivalent pay statement, such as the “PaySlip” for Coast Guard member), and multiply it times 98%. Thus if Major Jane Doe receives $8,000 per month as her base pay, the estimate for her High-3 Pay would be $8,000 X .98% or $7,840.

The Defense Finance and Accounting Service (DFAS) is the pay center for the Army, Navy, Air Force and Marine Corps.  The Department of Defense regulation governing the Privacy Program, DoD 5400.11-R, states that the Defense Department will release the following information regarding a servicemember: date of rank, gross salary, length of military service and Basic Pay Entry Date. Para. C4.2.2.5.2.1, DoD 5400.11-R (May 14, 2007). Other items may also be disclosed.

Years of Service

“Years of service” can be determined by asking Major Jane Doe, if she is your client.  Otherwise the figure can be determined by review of her LES (look at the “Pay Date” or “Pay Entry Base Date” as well as the DIEMS, or Date Initially Entered Military Service).  The LES may be provided voluntarily by Jane or her attorney, or it may be obtained otherwise through discovery.  This information is also available through a request pursuant to DoD 5400.11-R, as noted above.  If you know Jane’s pay grade[2] and years of service, you can determine her present base pay by using the pay tables at the DFAS website, https://www.dfas.mil > Military Members.

Pay grade – not rank – is what’s needed for the pay tables. Rank can be confusing: a master sergeant in the Air Force is pay grade E-7, but it’s E-8 in the Army; a Navy captain is pay grade O-6, but a Marine Corps captain is pay grade O-3!

Example of the Calculation

Let’s follow up on the calculations for Major Jane Doe, with the data set out above.  Her “estimate” for the High-3 is $7,840, and her Retired Pay Multiplier (assuming that she has just finished serving 20 years) is 20 X 2.5%, or 50%.  The combination of these gives $3,920/mo.  This is the projected retired pay for Major Doe if she were to retire at the 20-year mark with the above as her High-3 pay.

 

“Magic Words,” Volume 2

Wording for military pension division orderThe last article on “Magic Words” pointed out the unique language required to effect a valid former-spouse election for the Survivor Benefit Plan. This exploration will cover life, not death.  When the military pension is divided by the court, the order which grants lifetime pension division can be a divorce decree, a settlement incorporated into the decree or a consent order, sometimes called a military pension division order (MPDO).  The order is required to have two special phrases (or what you might call “magic words”) to comply with federal law.

The Frozen Benefit Rule

The law, of course, is the federal statute which allows the division of military retired pay by state courts; that’s the Uniformed Services Former Spouses’ Protection Act, or USFSPA, located at 10 U.S.C. §1408.  An amendment in 2016 restricted the division of military retired pay to that which exists on the day of divorce.  The “Frozen Benefit Rule” thus limits any further growth of the pension by taking a snapshot at the time of divorce.  To provide information which the retired pay center needs to make this calculation, the law requires that every pension order state two data points: a) the High-3 pay of the servicemember on the date of the dissolution and b) the member’s years of creditable service (or, in the case of Guard/Reserve members, the date-of-divorce number of retirement points).  This rule applies, pursuant to 10 U.S.C. §1408 (a)(4)(A), to the military pension division cases where the divorce was granted after December 23, 2016 and the member was not receiving retired pay at divorce.

There is no exception if you’re within this window.  Congress did not leave a loophole for the parties to “consent otherwise.” Thus the husband and wife are not free to write their own agreement, since Congress has decided to tell them what they can do.

“High-3” Pay, Years of Service

The High-3 compensation of an individual is his or her highest three years of base pay, stated as a monthly amount (e.g., “John Doe’s High-3 at divorce was $4,567.89 per month”).  That will require a clear understanding of John Doe’s current rank and years of service, as well as his date of initial entry into military service (or DIEMS) and his last promotion date, unless counsel somehow “gets lucky” and obtains the appropriate number of past pay statements from the servicemember.  While not on a par with calculus, the computations are not easy for most attorneys.

The years of creditable service will depend on pay records (and other documents when there was a break in service).  Counsel must know the difference between DIEMS (see above) and the PEBD, or Pay Entry Base Date.  The retirement points calculation means that counsel must have access to John Doe’s annual Reserve/Guard points statement.

None of this is simple, and it’s often a wise idea to hire an attorney who’s “been around the block” with these problems a couple of times.  That’s what we call a co-pilot or – in the words of Tom Cruise – a “wingman.”  It’s also possible to attempt this alone by reading “Military Pension Division and the Frozen Benefit Rule: Nuts ‘n’ Bolts,” a Silent Partner infoletter which may be found at https://www.americanbar.org/groups/family_law/ > Military Law Committee, or at www.nclamp.gov > Publications.

All of this (and more) can be found at “The Frozen Benefit Rule” in Chapter 8 of THE MILITARY DIVORCE HANDBOOK (Am Bar Assn., 3rd Ed. 2019).

“Magic Words” in the Military Divorce

In “Jack and the Beanstalk” it is the “magic beans” that start the story.  In “My Cousin Vinny,” the best line in cross-examination features “magic grits.”  In military divorce cases, “magic words” are sometimes the answer.

There are several military pension division areas in which “magic words” or specific language can make the difference between success and defeat, between a happy client and a grievance (or worse!).  One of the most important places to focus on language is in the paragraph in the pension division order which deals with the Survivor Benefit Plan. Attorneys who represent the non-military spouse or former spouse know that providing for this survivor annuity is an essential part of a property settlement.

Whether the pension-division text is found in the divorce decree, an incorporated settlement, or a separate consent order (often called a Military Pension Division Order, or MPDO), the attorney representing the spouse or the former spouse (FS) must be sure that specific requirements are set out clearly in order to secure SBP coverage.  Without terms which anchor the SBP in the settlement, the retired pay center will deny the spouse or former spouse this substantial benefit, since the pension-share payments end when the servicemember or retiree dies.  [Note: The retired pay center is DFAS, the Defense Finance and Accounting Service, for Army, Navy, Air Force and Reserve retirees; for those retiring from the Coast Guard or the commissioned corps of the Public Health Service or the National Oceanic and Atmospheric Administration, it is the Coast Guard Pay & Personnel Center.]

SBP is an income-continuation program, not strictly speaking a part of the pension.  It allows the FS to continue receiving payments after the member’s death.  The amount paid is 55% of the selected base amount.  Payments constitute taxable income, and they increase annually with inflation through cost-of-living adjustments, or COLAs.

The basic language to be use – the “magic words,” if you wish – can be written quite simply into the instrument that divides the pension: “John Doe will immediately elect his wife, Jane Doe, for former-spouse Survivor Benefit Plan coverage.”  It’s that simple!

Those who want to put a bit of frosting on the cake can use some additional language.  Here are several add-ons to insert after the above sentence regarding SBP election:

  • “He will elect SBP for her using his full retired pay as the base amount.” [Note: The base can be anything from full retired pay down to $300 a month; failure to specify the base results in a base amount of one’s full retired pay.]
  • “He will make the election on DD Form 2656-1, will send a copy promptly to the retired pay center along with the divorce decree and any other order requiring former-spouse SBP coverage, and he will transmit a copy of these documents promptly to Jane Doe’s lawyer.” [Note: For members of the Reserves and National Guard, as well as their spouses, the forms need to be sent to that agency, not to the retired pay center; thus the Army Reserve office would be Human Resources Command at Ft. Knox, and the Air National Guard would be at Buckley AFB, Colorado.]
  • “Jane Doe may submit a deemed election to secure her SBP coverage, using DD form 2656-10.”

The addresses to use are on the forms.  The deadlines for submission of the necessary documents are one year from the divorce (for the member/retiree) and one year from the order requiring SBP coverage (for the former spouse.).

All of this (and more) can be found at “SBP – Choose It or Lose It” in Chapter 8 of THE MILITARY DIVORCE HANDBOOK (Am Bar Assn., 3rd Ed. 2019).

 

Mark E. Sullivan, COL, USA (Ret.)

Sullivan & Hilscher Family Law