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Fourth in a series of articles addressing Reserve & National Guard issues in Family Court By Barry J. Bernstein Some issues in Family Court may focus on the military discharge of the Servicemember. The discharge formally reflects the character of service and entitlement to future benefits. If a former servicemember does not know their type of discharge, it is for one of two likely reasons: 1) entry level discharge and not further characterized or 2) concealing the type of discharge. Most veterans know their discharge, so denying knowledge of it is often a tell. “DD 214” is the magic term for discharge, coming from the name of the standard form. In a very simple format, you will find character of service, dates, military training, specialties, and decorations. If a witness or litigant relies on credibility from military service, the DD 214 is vital for cross-examination and is universally recognized as the authority for identifying service. DISCHARGES IN ORDER OF QUALITY: HONORABLE DISCHARGE:. In the reality of today’s world, if the servicemember completes the full period of service without adverse action, an honorable discharge is likely. If a litigant does not have an honorable or administrative discharge, there may be something to explore. Other “clean” discharges:
GENERAL DISCHARGE: This is more complicated than other types of discharges. VA benefits may be precluded, but there will be additional paperwork to explain the character of the discharge. It is often associated with non-judicial punishment or unacceptable behavior. OTHER THAN HONORABLE (“OTH”) DISCHARGE: OTH is the worst you can receive without a court martial. Common sources are violence, civilian convictions, or a bartered deal to avoid court martial, yet still allowing the government to preclude giving future VA benefits. BAD CONDUCT DISCHARGE (“BCD”): BCD must be from a court martial, likely a special court martial and military incarceration. Veteran benefits are likely forfeited. DISHONORABLE DISCHARGE: Reprehensible conduct. Severe violence convictions from a General Court Martial (highest level) are a foundation. Not only do they forfeit all military and veteran benefits, federal law precludes the recipient from owning a firearm.  While this article is intended to inform you of unique issues of the military and veterans, it does not replace the need for proper legal advice by a licensed attorney in your jurisdiction.
* The author retired as a colonel after 34 years of service. He now practices law at Bernstein Law Firm, LLC in Irmo, SC, advising clients and attorneys on military issues.
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While this article is intended to inform you of unique issues of the military and veterans, it does not replace the need for proper legal advice by a licensed attorney in your jurisdiction. by Barry J. Bernstein* The Uniformed Services Former Spouse Protection Act (USFSPA) is a federal law that protects an ex-spouse of a servicemember from losing some benefits. It is not federal law that grants protection but allows state courts authority. It not only provides for child support and alimony from a military retiree, but also may provide other benefits as well. Primarily, USFSPA provides the Defense Finance and Accounting Service (DFAS) to honor a state court order in certain circumstances. No federal law automatically entitles a former spouse to any portion of a military retiree's pay. USFSPA authorizes state courts to divide military retired pay as a marital asset and to be disbursed directly to the former spouse. It also provides a method of enforcing child support and current alimony payments from a military retiree. In South Carolina, a division of retired pay is considered a property division, not alimony. Therefore, it must follow the property division rules of USFSPA. This requires the 10/10 rule. The 10/10 rule requires there to be 10 years of marriage AND 10 years of qualifying military service. Without the 10/10 rule, DFAS does not process it, nor will it make direct disbursements, so a Family Court can order the split, but it would have to happen between the parties, without automated payments by DFAS. The USFSPA may permit former spouses to continue receiving commissary, exchange, and health care benefits after a divorce in certain cases. Again, it is not automatic. It has has limited application and requires affirmative steps to secure. 20/20/20 Rule. 20 years of creditable service/20 years of marriage/20 years overlapped. Basically, you must show 20 years of service while the spouse was in the military for those 20 years. If the former spouse meets the 20/20/20 rule, the former spouse may be entitled to health care, exchange, and commissary benefits. 20/20/15 Rule. If the parties the servicemember served 20 years and the marriage lasted for 20 years, but the period overlapping marriage and service was more than 15 but less than 20, they may be entitled to a transitional period of health care, with the option to purchase a policy afterward. Non 20/20/20 or 20/20/15 opportunity: Former spouses who do not fit the two options above are not entitled to any Tricare benefits after a divorce. But they are eligible for the DOD Continued Health Care Benefit Program, an at cost health care coverage program for 36 months of coverage until alternative coverage can be obtained, if done within 60 days of losing full military health care benefits. Future federal benefits to the “Ex” is possible, but not automatic, and may be very technical to ensure receiving! *Barry J. Bernstein, retired from the Army after 34 years as a Colonel. He now practices law in South Carolina, advising clients and attorneys on military issues in South Carolina.
While these articles are intended to inform you of unique issues of the military and veterans, it does not replace the need for proper legal advice by a licensed attorney in your jurisdiction. by Barry J. Bernstein “DFAS” is the center of personnel finances for the US military, whether active duty or reserve, retiree or current, or any military branch. They not only handle personnel payments, but also payments to military contractors and overseas military sales. Since 1991, they have consolidated over 300 field offices into one central office, using about 1,200 employees, and disbursing about $500 Billion annually. DFAS is the mother of all bureaucracies. Do it the DFAS way or don’t get paid timely. They are the 800-pound gorilla. DFAS holds the money, and they are careful before disbursing it. You will eventually get what you are due, but your equitable arguments and your logic, if different from DFAS procedure won’t work. Remember, DFAS is the Finance and Accounting office. They will not be the repository of personnel records. However, they will review an Order to ensure it is compliant before making payment or changing their prior records. They are efficient, but highly technical in screening material. Do not expect requests to be approved in the next payment cycle. Send your document well before the expected disbursement date. When dividing retirement benefits, the common tool is a Qualified Domestic Relations Order (“QDRO”). Simply stated, lawyers think QDROs are a pain, because the retirement system or clearinghouses for funds are very picky. Often, the agreement of the parties or the order of the court can be difficult for the receiving holder of the funds or the accounts to completely understand. Common terms in South Carolina may not be common to the reviewer. DFAS is no different, and QDROs will be highly scrutinized and may even require a new Order to comply. It is difficult to determine the entitlement of a RC servicemember until the period of service is complete. In theory, the parties could guess at the split, but a proper determination of the percentage of the retirement cannot be calculated until the service is complete. DFAS may refuse any QDRO when the RC servicemember is not yet entitled to retirement. HOWEVER, when the service is complete and the retirement is decided, the Order of Divorce may set out the retirement clearly enough that no QDRO may be required. DFAS has plenty of information available of the key points they are looking for, and an Order of Divorce can meet all these requirements. There is a “gray area” for RC servicemembers (time between completing service and awaiting age 60). Attorneys should jump at the opportunity to avoid a last minute QDRO. Using the gray area period is an excellent opportunity to resolve anxiety before the first expected payment. DFAS can be a royal pain if you send in sloppy or incomplete documents. However, their online information provides a plethora of explanations of how to their process works. Attention to detail will save a great deal of time and preclude lots of headaches. * The author retired as a colonel after 34 years of service. He now practices law at Bernstein Law Firm, LLC in Irmo, South Carolina, advising clients and attorneys on military issues.
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April 2023
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