Check out an excerpt from 12/12/12 NBI CLE webcast “Military Divorce” written by attorney Henry M. DeWoskin. For more information on the topic, on Henry’s co-presenters, or to register for this event visit the seminar page.
The focus of this paper is to describe the documents that are needed in a military divorce case. There are nuances that an attorney must be aware of in order to represent a servicemember and his or her spouse properly in a domestic relations case. When an attorney begins a military divorce case, there are several important documents that the attorney will need.
First, the attorney needs to get the servicemembers’ Leave and Earnings Statement (LES). The Leave and Earnings Statement contains all of the wage information that the servicemember receives. Defense Finance and Accounting Service (DFAS) manages and administers the payroll for all of the branches of the military except for the Coast Guard. When a servicemember gets paid, he is paid on a monthly basis. However, the servicemember has the option of being paid twice a month or once a month. If the servicemember decides to be paid twice a month, the servicemember would receive his or her pay on the first of the month and on the fifteenth of the month. If pay day falls on a holiday or weekend, the servicemember will get paid on the weekday prior to the 1st or 15th of the month. Servicemembers are able to access their LES on DFAS’ website through “myPay” 24 hours a day. The website is located at mypay.dfas.mil/mypay.aspx. Through the “myPay” website, servicemembers have access to their LES for the last twelve months. By reviewing the LES, an attorney can ascertain a lot of information in addition to the income and deductions that a servicemember receives.
The LES is broken down into many fields. To assist, a copy of the LES is attached in seminar materials. A the top of the LES, there are nine fields. Fields 1-9 contain the identification portion of the LES.
- Field 1 is the name of the servicemember.
- Field 2 is the servicemember’s social security number.
- Field 3 is the servicemember’s grade. In the military, each rank corresponds to a grade. If the servicemember is enlisted, that servicemember’s grade will be E-1 through E-9. If the servicemember is an officer, that servicemember’s grade will be 0-1 through 0-10. Knowing the servicemember’s grade is important because it helps determine what the servicemember’s pay and allotments will be.
- Field 4 is the Pay Date which is synonymous with the Pay Entry Base Date (PEBD). This is the date that the servicemember entered the military for pay purposes.
- Field 5 is how many years the servicemember has for creditable service. this is important because of military retirement.
- Field 6 is the expiration term of service (ETS). This is the date that the servicemember’s current contract expires.
- Field 7 is the branch of service, i.e. Army, Navy, air Force, Marine Corps.
- Field 9 is the period covered by the individual LES. Normally, it is for one calendar month for active duty. For the reserves, field 9 will be the check date.
The next section contains fields 10 through 24. These fields contain entitlements, deductions and allotments. The entitlement field consists of the pay that the servicemember receives. The pay includes basic pay, basic allowance for subsistence (BAS) and basic allowance for housing (BAH). It may also include cost of living allowance (COLA), hazardous duty pay and separation pay. Basic pay is determined by the rank of the servicemember and the number of years of service from the Pay Entry Base Date. the 2012 Pay Chart from DFAS is included in the seminar materials. BAS is for food and the amount is based on whether the servicemember is an officer or enlisted. BAH is for lodging and is based on the location of the servicemember, the servicemember’s rank and whether or not the servicemember has dependents. Both of these allowances are nontaxable income. the next field is the deduction field. Deductions include taxes, Servicemembers Group Life Insurance (SGLI), mid-month pay (if on active duty) and dependent dental plan. field 12 consists of the allotments. Allotments can either be discretionary or non-discretionary. a discretionary allotment is an allotment that the servicemember requested. These types of allotments are used for savings/checking accounts, insurance and savings bonds, etc. These allotments are usually for child support, alimony/maintenance or monetary judgment against the servicemember.
The next set of fields relate to the servicemember’s leave. Leave is synonymous with vacation. A servicemember earns 2.5 days of leave per month that he or she is on active duty. the earned leave that a servicemember receives translates into future money for the servicemember. Currently the servicemember can carry over 75 days of leave per year. the number of carry over days may revert back to 60 days in 2013. If the servicemember is in the Reserves or National Guard, there will be zeros in the fields that pertain to leave.
The next fields which an attorney needs to understand are the Pay Data fields. In the first block on that line is the BAQ Type that is being paid. BAQ is BAsic Allowance for Quarters. Basic Allowance for Quarters is the same as BAsic Allowance for Housing. There are only two types of BAH that can be paid: Without dependents and With dependents. In the next block is the BAQ DEPN (Basic Allowance for Quarters Dependent). In this block is a code that indicates the type of dependent. The codes are: 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 – tudent (age 21-22); T – Handicapped child over age 21; W – Member married to member, child under 21. the next block is the VHA ZIP. VHA is Variable Housing Allowance. The zip code that is used in computing BAH, if the entitlement exists, will be located in this block.
In order to determine BAH, one can go to the Defense Travel Management website at www.defensetravel.dod.mil/site/bahCalc.cfm. when someone goes to this website, he or she inserts the zip code and the pay grade of the servicemember. This calculator will then determine the amount of BAH at the Without dependent rate and the With dependent rate that the servicemember could be receiving.
The next set of fields that an attorney needs to be aware of is the thrift Savings Plan (TSP). the thrift avings Plan is similar to a 401k in the civilian world. If there are numbers in these fields, the servicemember is currently contributing to this Thrift Savings Plan account. If the servicemember contributed to the TSP in the past, but is not currently contributing to it, these fields will be blank or filled with zeroes.
At the bottom f the LES is the Remarks section. This section is used to provide the servicemember “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.”
The second document that an attorney needs to review is a servicemember’s DD Form 214 if they have been released or discharged from active duty. DD stands for Department of Defense. This is the form that shows when the servicemember was released or discharged from active duty. In addition, it shows the grade or rank of the servicemember at the time of release or discharge. The servicemember’s home of record at the time of entry on active duty will be annotated on the form. Further, the servicemember’s date of entry on active duty and date released from active duty are on the form. The servicemember’s decorations, medals, badges and citations will be annotated on the form. At the bottom of the form, it will state the characterization o discharge (honorable, general under honorable conditions, other than honorable, bad conduct discharge or dishonorable). A copy of the DD Form 214 is attached in the seminar materials.
The third document that an attorney needs to review is the Retiree Account Statement (RAS). This statement is used for military retirees who are receiving retired pay. The RAS is a two page document. On the first page, the retiree’s gross pay, any VA waiver amount, Survivor Benefit Plan (SBP) premium and the retiree’s net pay are shown. This part of the RAS is important in determining military retirement pay, SBP designation and if there are any VA disability payments being paid to te retiree. On the second page, garnishments, former spousebeneficiary of the SBP, allotments or bonds, and miscellaneous debts will be shown. A copy of a Retiree Account Statement is attached in the seminar materials.
The fourth document that an attorney needs to review is the Statement of Retirement Points. This statement is used for Reservists and National Guard. This statement shows the history of the Reservist or National Guard. The number of points earned during any given year, and the amount of creditable or qualifying ears toward retirement will be listed on the statement. This information is important in determining the military retirement pay for Reservists or National Guard.
About the author:
Henry M. DeWoskin is a partner in the law firm of Alan E. DeWoskin, P.C. He has a general practice with an emphasis on military and family law. Mr. DeWoskin is licensed to practice in Missouri; Illinois; the Federal District Court, Eastern District of Missouri; the Court of Appeals for the Armed Forces; and the U.S. Supreme Court. He served as a military police officer in the U.S. Army Reserve for 7 years. Since 1999, Mr. DeWoskin has served in the U.S. Army JAG Corps. He currently serves as a major in the U.S. Army Reserve. Mr. DeWoskin’s in-depth knowledge and experience with military law helps him to effectively serve servicemembers and/or their families. As a member of the American Bar Association, he holds multiple leadership positions in the Section of Family Law, including Chair of the Military Committee and General Practice, Solo & Small Firm Division. Further, Mr. DeWoskin is currently a member of the Board of Governors of the Bar Association of Metropolitan St. Louis. He earned his B.A. degree from Bucknell University and his J.D. degree from Temple University.