Anyone ever hear of this CRDP fraud?

[chaplaincharlie]

That all changes with CRDP because longevity retired pay is disposable retired pay. CRSC is not divisible because that amount is based on disability.

Incorrect

" (A) The term “disposable retired pay” means the total monthly retired pay to which a member is entitled less amounts which— (i) are owed by that member to the United States for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay; (ii) are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a court-martial or as a result of a waiver of retired pay required by law in order to receive compensation under title 5 or title 38; (iii) in the case of a member entitled to retired pay under chapter 61 of this title , are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member’s disability on the date when the member was retired (or the date on which the member’s name was placed on the temporary disability retired list); or (iv) are deducted because of an election under chapter 73 of this title to provide an annuity to a spouse or former spouse to whom payment of a portion of such member’s retired pay is being made pursuant to a court order under this section. (B) For purposes of subparagraph (A), in the case of a division of property as part of a final decree of divorce, dissolution, annulment, or legal separation that becomes final prior to the date of a member’s retirement, the total monthly retired pay to which the member is entitled shall be— (i) in the case of a member not described in clause (ii), the amount of retired pay to which the member would have been entitled using the member’s retired pay base and years of service on the date of the decree of divorce, dissolution, annulment, or legal separation, as computed under section 1406 or 1407 of this title , whichever is applicable, increased by the sum of the cost-of-living adjustments that— (I) would have occurred under section 1401a(b) of this title between the date of the decree of divorce, dissolution, annulment, or legal separation and the time of the member’s retirement using the adjustment provisions under section 1401a of this title applicable to the member upon retirement; and (II) occur under 1401a of this title after the member’s retirement; or (ii) in the case of a member who becomes entitled to retired pay pursuant to chapter 1223 of this title , the amount of retired pay to which the member would have been entitled using the member’s retired pay base and creditable service points on the date of the decree of divorce, dissolution, annulment, or legal separation, as computer under chapter 1223 of this title , increased by the sum of the cost-of-living adjustments as described in clause (i) that apply with respect to the member. "

10 U.S. Code § 1408 - Payment of retired or retainer pay in compliance with court orders

www.law.cornell.edu

 

[Jason Perry]

I have scanned (meaning that I did not read fully and analyze or think about all of the permutations and hypotheticals) the posts on this subject.

I will offer this. First, there is some value to discussing what might happen or should happen in certain situations. I have said it before that this site does also help me in seeing different situations that expose light on issues that I have not seen before. That said, hypotheticals are only so useful in that real cases need to be tested by reality and the issues facing the person trying to get some result that can be relied on to understand what should/could happen in a similar circumstance.

The first point is to address the OP's question of "has anyone ever hear of this CRDP fraud?" This is not a very helpful question (nor are any answers...."yes, I have heard of this," or "no, I have never heard of this," does not help understand what should happen in the bigger picture).

My overall gut reaction to the post is that the veteran may be trying to gain an advantage in his personal divorce case. Is he a scumbag or a bad actor because of this? Maybe. But, would I feel comfortable making that conclusion without more information? No. I would want to know much more about the whole case before coming to that conclusion. Also, I wonder about what legal advice he has gotten (military or in the divorce action). (I smell some bad advice from either an attorney or a "barracks lawyer," going on in this case).

(I also am reminded of the issues in this article about CRSC vice CRDP, and the idea that the election for either can be used to avoid or fight family law obligations:
Military Pension Division: The “Evil Twins” – CRDP and CRSC)

The legal questions seem to turn on whether or not he can do what he is trying to do. Can he? Maybe. But, I would tend to doubt it, at least easily. My further instinct is that the post and the issues here are not helpful to anyone in this forum's audience. Why? Because we don't know all of the facts (on both sides), we don't know what decisions were made at each level, and we especially don't know the state law divorce matters that really get to the main point of this situation. Given the lack of the full picture needed to judge the whole situation, I think we are left with the remaining questions- is this guy a good guy or a bad guy? I assume the judge in the family law matter can get to the bottom of this.

Just not sure how this very rare situation (I have never heard of anything like this before) can give any meaningful insight to any service member or veteran prospectively. By far, not enough information about the case overall, and the resolution is unlikely to give any rule that folks can take away from it.

If the question is only, "is this guy a jerk," or not, maybe we can chime in and say. Still, hard to say without knowing the full case situation.

 

[GatorNavy1]

Incorrect

" (A) The term “disposable retired pay” means the total monthly retired pay to which a member is entitled less amounts which— (i) are owed by that member to the United States for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay; (ii) are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a court-martial or as a result of a waiver of retired pay required by law in order to receive compensation under title 5 or title 38; (iii) in the case of a member entitled to retired pay under chapter 61 of this title , are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member’s disability on the date when the member was retired (or the date on which the member’s name was placed on the temporary disability retired list); or (iv) are deducted because of an election under chapter 73 of this title to provide an annuity to a spouse or former spouse to whom payment of a portion of such member’s retired pay is being made pursuant to a court order under this section. (B) For purposes of subparagraph (A), in the case of a division of property as part of a final decree of divorce, dissolution, annulment, or legal separation that becomes final prior to the date of a member’s retirement, the total monthly retired pay to which the member is entitled shall be— (i) in the case of a member not described in clause (ii), the amount of retired pay to which the member would have been entitled using the member’s retired pay base and years of service on the date of the decree of divorce, dissolution, annulment, or legal separation, as computed under section 1406 or 1407 of this title , whichever is applicable, increased by the sum of the cost-of-living adjustments that— (I) would have occurred under section 1401a(b) of this title between the date of the decree of divorce, dissolution, annulment, or legal separation and the time of the member’s retirement using the adjustment provisions under section 1401a of this title applicable to the member upon retirement; and (II) occur under 1401a of this title after the member’s retirement; or (ii) in the case of a member who becomes entitled to retired pay pursuant to chapter 1223 of this title , the amount of retired pay to which the member would have been entitled using the member’s retired pay base and creditable service points on the date of the decree of divorce, dissolution, annulment, or legal separation, as computer under chapter 1223 of this title , increased by the sum of the cost-of-living adjustments as described in clause (i) that apply with respect to the member. "

10 U.S. Code § 1408 - Payment of retired or retainer pay in compliance with court orders

www.law.cornell.edu

I am going by hundreds of court cases and DFAS.....Don't quite believe we are all wrong. CRDP restores longevity retired pay. CRDP is disposable retired pay. The U.S. Government won't pay twice for the same service connected disability....that is etched in stone. There have been bills in Congress to change that, but those bills have as yet to get out of committee. The most recent bill (that I know of) was sponsored by Sen. Jon Tester(U) S.344 which is to provide for concurrent receipt of veterans' disability compensation and retirement pay for disability retirees with fewer than 20 years of service. Currently though (taken from DFAS) this is how it is:

"Special Rules for Chapter 61 Disability Retirees: Members retired for disability under Chapter 61 of title 10 United States Code may be entitled to CRDP only if they have at least 20 years of service qualifying for regular or reserve retirement. Additionally, any disability retired pay that is in excess of retired pay to which that member would be otherwise entitled (i.e., for years of service) remains subject to offset and may not be restored under the CRDP program."

 

[GatorNavy1]

I have scanned (meaning that I did not read fully and analyze or think about all of the permutations and hypotheticals) the posts on this subject.

I will offer this. First, there is some value to discussing what might happen or should happen in certain situations. I have said it before that this site does also help me in seeing different situations that expose light on issues that I have not seen before. That said, hypotheticals are only so useful in that real cases need to be tested by reality and the issues facing the person trying to get some result that can be relied on to understand what should/could happen in a similar circumstance.

The first point is to address the OP's question of "has anyone ever hear of this CRDP fraud?" This is not a very helpful question (nor are any answers...."yes, I have heard of this," or "no, I have never heard of this," does not help understand what should happen in the bigger picture).

My overall gut reaction to the post is that the veteran may be trying to gain an advantage in his personal divorce case. Is he a scumbag or a bad actor because of this? Maybe. But, would I feel comfortable making that conclusion without more information? No. I would want to know much more about the whole case before coming to that conclusion. Also, I wonder about what legal advice he has gotten (military or in the divorce action). (I smell some bad advice from either an attorney or a "barracks lawyer," going on in this case).

(I also am reminded of the issues in this article about CRSC vice CRDP, and the idea that the election for either can be used to avoid or fight family law obligations:
Military Pension Division: The “Evil Twins” – CRDP and CRSC)

The legal questions seem to turn on whether or not he can do what he is trying to do. Can he? Maybe. But, I would tend to doubt it, at least easily. My further instinct is that the post and the issues here are not helpful to anyone in this forum's audience. Why? Because we don't know all of the facts (on both sides), we don't know what decisions were made at each level, and we especially don't know the state law divorce matters that really get to the main point of this situation. Given the lack of the full picture needed to judge the whole situation, I think we are left with the remaining questions- is this guy a good guy or a bad guy? I assume the judge in the family law matter can get to the bottom of this.

Just not sure how this very rare situation (I have never heard of anything like this before) can give any meaningful insight to any service member or veteran prospectively. By far, not enough information about the case overall, and the resolution is unlikely to give any rule that folks can take away from it.

If the question is only, "is this guy a jerk," or not, maybe we can chime in and say. Still, hard to say without knowing the full case situation.

All good points...I appreciate your evaluation of the situation. My intention is not to litigate the case hear. I wasn't trying to imply what the former spouse is entitled to. I am not really trying to make a point actually. I am just curious if anyone has ever heard of a retiree trying to (temporarily) have his 20 year letter revoked. The Dept. Of Defense Office of Hearings and Appeals (DOHA) is the designated agent to adjudicate retired pay appeals (including CRDP). DOHA has published appeals for the last 25 years. DFAS has never failed to honor a 20 year letter. I think it safe to say that there are more chapter 61 retirees who don't have 20 years than those that do.

I had 10 years active duty in when I was wounded on deployment and became a 100% P&T disabled veteran because of it. I couldn't finish my twenty. Now here is a guy that never got out of CONUS and was injured in a civilian car crash who got his 20 years in before he was injured. I blame the system for that not him. But going to the BCMR and commit fraud, I find untenable.

 

[RonG]

Hello @GatorNavy1 ,

Re: "DFAS has never failed to honor a 20 year letter. I think it safe to say that there are more chapter 61 retirees who don't have 20 years than those that do."

DFAS knows nothing about a "20 year letter" (i.e., 20 good years COE) until they receive the veterans packet for approved RC retirement. Interestingly (to me), I read yesterday that if a 20 year letter was issued in error, the veteran/retiree would not be penalized.

I agree that there are more less-than 20 years CH 61 retirees than 20yrs-or more CH 61 retirees.

Ron

 

[GatorNavy1]

@GatorNavy1 ,

I discussed this matter with a respected colleague on another site. Here is a copy of my reply to only one of his remarks.
[my reply]
Hello,

Re: "A divorce decree can include a provision compelling the member to apply for retirement."--your comment

I wonder if the process involves other than the provision you mention. You made me realize years ago that the judges can use their authority to issue decrees that veterans might not have anticipated, especially those engaged in "avoidance maneuvers ."

This non-military site discusses similar actions: LINK <---

[start quotation] Some states allow payments to be made while the military member is still on active duty; some do not. The law permits the present value of the pension to be used as a set-off or trade against other property that the civilian spouse may receive. Thus, for example, the retired pay might be traded against a marital home. If the numbers do not align properly and equitably, one spouse can make what is called "distributive award" to the other to compensate for the inequality.

Postponement of retirement cannot be used to prevent the distribution of military retirement pay to an ex-spouse. Some courts have held that a former spouse may collect his or her portion of the retirement pay at the time of eligibility for retirement, regardless of whether the service member actually retires. This may sound complex, but it is logical. These courts use the rationale that the service member spouse cannot defeat the non-service member spouse's interest in the community property by relying on a condition within the Service Member spouse's control. [end quotation]

=============

I did not search for the applicable laws that outline the quoted material.

JMO: In summary, this is a matter for attorneys to field.


Ron

Thank you, I appreciate those legal arguments. What I have learned is that each state is different. Community property states tend to award only the service time performed during the marriage. Equity property states tend to have a more inclusive approach and allow "horse trading" of marital property. With Reserve Component retirements it can get a little dicey. Some attorneys go for how many points accrued during the marriage while others go for years of service. Years of service just about always yields a higher percentage award of RC retired pay. I suggest that anyone who is about to be involved in a military divorce buy Col. Mark E. Sullivan's book: The Military Divorce Handbook: A Practical Guide to Representing Military Personnel and Their Families Third Edition. Mark is the Chairman of the military family law committee with the ABA. If you read his book you will at least know what you are getting into and what your options are. There are very few attorneys with military divorce experience. Reversing a Divorce Decree is almost impossible.

 

[GatorNavy1]

Hello @GatorNavy1 ,

Re: "DFAS has never failed to honor a 20 year letter. I think it safe to say that there are more chapter 61 retirees who don't have 20 years than those that do."

DFAS knows nothing about a "20 year letter" (i.e., 20 good years COE) until they receive the veterans packet for approved RC retirement. Interestingly (to me), I read yesterday that if a 20 year letter was issued in error, the veteran/retiree would not be penalized.

I agree that there are more less-than 20 years CH 61 retirees than 20yrs-or more CH 61 retirees.

Ron

Ron wrote: "DFAS knows nothing about a "20 year letter" (i.e., 20 good years COE) until they receive the veterans packet for approved RC retirement."

That is exactly the point. DFAS has the TDRL/PDRL orders for the chap 61 but they won't get any of the longevity retired pay records until he applies through the service component.

The 20 year letter is like gold because the retiree can't jump into a DeLorean and go back in time to finish his 20. They can adjust the points though. Used to be that the service gave the retiree one year after the issue of the 20 year letter to challenge the points specified. Anyone with any brains at all will also safeguard the Points Credit Summary record that was used to generate the 20 year letter. The 20 year letter has been around since 1966. The probability that they would make an error in issuing the 20 year NERP is about that of the Sun going into NOVA tomorrow.

 

[GatorNavy1]

"A divorce decree can include a provision compelling the member to apply for retirement."

Sorry Ron I just caught this. As far as federal law is concerned, I don't think (I am not an attorney) a court can force anyone to apply for any federal benefits whether it be retired pay, VA comp or Social Security for that matter. They can make them liable for the amount of the benefit though, with the exception of VA comp. VA disability compensation is "hands off" for divorce courts or creditors as far as I know.

 

[RonG]

"A divorce decree can include a provision compelling the member to apply for retirement."

Sorry Ron I just caught this. As far as federal law is concerned, I don't think (I am not an attorney) a court can force anyone to apply for any federal benefits whether it be retired pay, VA comp or Social Security for that matter. They can make them liable for the amount of the benefit though, with the exception of VA comp. VA disability compensation is "hands off" for divorce courts or creditors as far as I know.

Part of that segment is missing. I provided: "Re: "A divorce decree can include a provision compelling the member to apply for retirement."--your comment}

The "your" and the source, is my colleague, and was purposely cited. He knows much more about the division of retired pay than me. I usually avoid posts about the subject discussed here and if I post at all, I suggest one should see an attorney.

I have nothing else to offer on this subject. My contribution was mediocre at best.

Good luck to all.

Ron

 

[Jason Perry]

I suggest that anyone who is about to be involved in a military divorce buy Col. Mark E. Sullivan's book: The Military Divorce Handbook: A Practical Guide to Representing Military Personnel and Their Families Third Edition. Mark is the Chairman of the military family law committee with the ABA.

Col Sullivan is very well known in this area of law and, as suggested, he "wrote the book" (or at least a book) on the subject.

Sorry Ron I just caught this. As far as federal law is concerned, I don't think (I am not an attorney) a court can force anyone to apply for any federal benefits whether it be retired pay, VA comp or Social Security for that matter. They can make them liable for the amount of the benefit though, with the exception of VA comp. VA disability compensation is "hands off" for divorce courts or creditors as far as I know.

This gets complicated and plays out differently. Often, courts lack actual authority to order certain things. However, they can often make you wish you did. This is sometimes accomplished with a contempt order if an action is not taken, treatment of something as actually having occurred if it is intentionally avoided to shirk an obligation, or making an evidentiary conclusion based on the conduct. So, while there are some limitations on judicial power in these situations, in some jurisdictions what the reading of a statute might appear to limit power, in reality sometimes things don't quite play out that way.

Clear as mud, right?

 

[RonG]

Re: "Often, courts lack actual authority to order certain things. However, they can often make you wish you did."--Jason

Excellent.

Sorry, could not resist making one additional comment.

Ron

 

[GatorNavy1]

Col Sullivan is very well known in this area of law and, as suggested, he "wrote the book" (or at least a book) on the subject.

This gets complicated and plays out differently. Often, courts lack actual authority to order certain things. However, they can often make you wish you did. This is sometimes accomplished with a contempt order if an action is not taken, treatment of something as actually having occurred if it is intentionally avoided to shirk an obligation, or making an evidentiary conclusion based on the conduct. So, while there are some limitations on judicial power in these situations, in some jurisdictions what the reading of a statute might appear to limit power, in reality sometimes things don't quite play out that way.

Clear as mud, right?

Actually it is very clear and helpful. Thank you!