Chapter 61

L

ldvorak

PEB Forum Regular Member
Registered Member
I have a question not sure if this is the right place to post it. I was ADAF for 21 yrs. I was put through the MEB process found unfit for duty and medically retired with DoD 80% and VA 100%. Reason for retirement Medical Disability Permanent (Enhanced) Separation code SEJ on my DD form 214.
My DoD retirement pay based on 75% DOD I also get VA compensation based on being 100% T & P. So I get CDRP.
Am I considered Chapter 61? The reason I ask is I have been going through a divorce and my ex is trying to get 1/2 my DoD money but DFAS told him I don't have any disposable retirement pay. I can't find others who understand what I am going through, Any advice would be great thanks
 
The law that Congress passed to allow military pay to be split with a spouse by a judge hearing a divorces case allows the judge up to 50% (or a little more is there dependent children) of DISPOSABLE RETIRED PAY.

So 50% (no dependent children) of a person who is a 100% disable is zero dollars.
 
Hello @ldvorak

From DFAS: Defense Finance and Accounting Service > Garnishment > usfspa > faqs <---Link to FAQs for division of retired pay with a former spouse.

"There is no Federal law that automatically entitles a former spouse to a portion of a member’s military retired pay. A former spouse must have been awarded a portion of a member’s military retired pay in a State court order. The Uniformed Services Former Spouses’ Protection Act (USFSPA), Title 10, United States Code, Section 1408, passed in 1981, accomplishes two things. First, it authorizes (but does not require) State courts to divide military pay as a marital asset or as community property in a divorce proceeding. Second, it provides a mechanism for a former spouse to enforce a retired pay as property award by direct payments from the member’s retired pay. Retired pay as property payments are prospective only. Retired pay arrears cannot be collected under the USFSPA."

See the FAQs for more info.

Odds and ends:
1. CRDP is restored retired pay based on the longevity portion. The amount of the CRDP you receive is shown on page two of the DFAS RAS and it is included in the gross pay on page one.
2. Chapter 61 is commonly used to describe a veteran who was either separated or retired for medical disability.

Ron
 
I was medically retired due to a medical disability. I went through this whole process.
What is frustrating is that during my divorce which was 3 years after I retired I kept asking why if I was medically retired with DoD 80%/ VA 100% it was fair that he get 1/2 my military retirement. My lawyer who is a reservist kept telling me that's just the way it is in Nebraska. They all knew I was 100% T&P. They had copies of my DD form 214 that says:

TYPE OF SEPARATION: Retirement
NARRATIVE REASON FOR SEPARATION: Disability, Permanent (Enhanced)
SEPARATION CODE: SEJ

When I was retired I still had a Active Duty Service commitment and to keep my last rank I had to stay in even longer. My ex knew that. I also had to go through MEB/RILO process from 2010 until they medically retired me in 2016. Every year I worried about my job.

In our Divorce Decree it states I get all of my Military Disability and he is entitled to 1/2 of my Military pension under USFSPA Title 10 US Code Section 1408. 1/2 of my Disposable pay. Well again since I was told he gets 1/2 of my $$ for DFAS I continued to pay him and kept telling him to file the paperwork with DFAS. Heck I was getting taxed on everything and he was getting money Tax free. So 7 mos after our divorce he finally got the letter from DFAS explaining I didn't have any disposable retirement pay.
I was like Yeah!! This makes sense! I was forced to retire and due to medical issues I can't work forever just for him to get 1/2 of my income for the rest of his life.
Well he has brought me back to court and they are saying I committed fraud. I'm so pissed. He is saying he had no idea I was medically retired!!!!
It is crazy and costing a ton in lawyer's fees.
I hope someone can give me insight or I can help someone else who is going through this. It is draining, I am the disabled vet yet they want me to support him!!!!
 
Your ex sounds like a piece of shit. I'm sorry you have to deal with that. There has to be someone on this forum who has had a similar experience.
 
Paramount said:
Your ex sounds like a piece of shit. I'm sorry you have to deal with that. There has to be someone on this forum who has had a similar experience.
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thanks he is. He already gets child support and a property settlement. We have physical joint custody!!
 
Unfortunately this sounds all to familiar. I'm sorry your going through that non sense as well.
 
I know little about divorce, although I have had a couple.

Some additional remarks:
--As I mentioned earlier, any CRDP (which replaces the dollar amount of longevity retired pay) is retired pay itself. Your Disability retired pay has a portion that is the longevity amount to be considered for CRDP and any pay in excess of the longevity pay amount cannot be restored via CRDP.
--Per DFAS: "
"Disposable retired pay is gross retired pay less authorized deductions. The authorized deductions depend on the effective date of the parties’ divorce, dissolution, annulment or legal separation. If the date was on or after February 3, 1991, the authorized deductions are:
  • Amounts owed to the United States for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay.
  • Forfeitures of retired pay ordered by court-martial.
  • Amounts of retired pay waived in order to receive compensation under Title 5 (federal civilian employment) or Title 38 (Department of Veterans Affairs) of the United States Code.
  • The amount of the member's retired pay under 10 U.S. Code Chapter 61 (Retirement or Separation for Physical Disability) 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).
  • Premiums paid as a result of an election under 10 U.S. Code Chapter 73 (Survivor Benefit Plan) 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."

DFAS FAQs discusses switching between CRDP and CRDC:

Q: What happens to my Retired Pay if I switch to CRDP?
A: If you elect to receive CRDP, your VA Waiver will be reduced by the amount of your CRDP pay. As a result, your taxable/disposable income will increase. Former Spouse deductions or garnishments will also increase, if your disposable incomes. SBP monthly premiums (if applicable) will be deducted from your retired pay. In addition, if you want to start or resume any allotments, you will need to make a request through myPay to start these deductions. Since you will no longer receive a separate payment for CRSC, you will only receive one payment for your Retired Pay/CRDP.

Q: What if I have a Former Spouse who receives a portion of my retired pay?
A: It is important to understand that CRSC is not subject to the provisions of the Uniformed Services Former Spouse Protection Act. This means that if you switch to CRSC, your former spouse’s payments may decrease, or stop altogether. This is because the amount of your disposable income may change, depending on the amount of your VA Waiver. CRSC payments are subject to garnishments for alimony and child support.

Here is a thread that discusses a case somewhat similar to yours: Disposable income Medical Retirement CDRP <---LINK

Your attorney should be able to field the questions you have, UNLESS he is unfamiliar with the pay of military retirees.

Good luck,
Ron
 
I also commented on the linked 2019 thread, but a Chapter 61 medical retirement is not the same as a regular 20 year retirement. A chapter 61 CRDP should not be divisible in court.
 
SRVC_CMPLT said:
I also commented on the linked 2019 thread, but a Chapter 61 medical retirement is not the same as a regular 20 year retirement. A chapter 61 CRDP should not be divisible in court.
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As I mentioned in the other thread, your comment about CRDP is incorrect.

CRDP does not restore waived disability retirement pay. CRDP pertains only to the longevity portion of retired pay.

Ron
 
Ron,

Can you expand your answer to clarify is a Chapter 61 PDRL Method B longevity retirement, CDRP, divisible in a divorce with no alimony or child support?
 
Cainfopro said:
Ron,

Can you expand your answer to clarify is a Chapter 61 PDRL Method B longevity retirement, CDRP, divisible in a divorce with no alimony or child support?
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Specifically- Can you validate that chapter 61 PDRL longevity pay and VA disability tax free pay is not divisible in a divorce.
 
Cainfopro said:
Specifically- Can you validate that chapter 61 PDRL longevity pay and VA disability tax free pay is not divisible in a divorce.
Click to expand...
Hello,

Most of the info I have posted in this forum regarding payments to a former spouse OR taxes has been copied from the DFAS web site. I have no background in divorce laws.

DfAS provides info regarding payments to a former spouse at

Online questions and answers

Recommend presenting your divorce-related questions to an attorney and DFAS can clarify some of the other issues. You can call Retired pay at DFAS if you choose.

I had a regular retirement 33 years ago and have no direct experience with the CH 61 process.

Good luck,
Ron
 
Cainfopro said:
Specifically- Can you validate that chapter 61 PDRL longevity pay and VA disability tax free pay is not divisible in a divorce.
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Only residual retired pay is divisible with an eligible (20/20 rule) former spouse. If you have no residual retired pay, there is nothing to divide with an eligible former spouse.
 
chaplaincharlie said:
Only residual retired pay is divisible with an eligible (20/20 rule) former spouse. If you have no residual retired pay, there is nothing to divide with an eligible former spouse.
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Thanks. Response is for forum: Issue I’ve had with DFAS is they will not give me advice until after there is a final ruling on my case, which is when I have to decide 1 of 3 options:
1) waive out of IDES and do a regular retirement with 42 years, take my 105%xbase pay ($14,250 + 100% VA Disability CDRP
2) Do Chapter 61 PDRL Method B longevity and secure $14,250 + 100% VA Disability (CDRP) monthly. My retirement pay should be same as #1 but Retirement Classification should reflect Medical Retirement. I am unsure if Chapter 61 PDRL Method B longevity is treated different than PDRL Method A, disability percentage method. I know Method A has the 30 year/75% cap x 2.5% formula. Method B longevity has no 30 year cap but I rcant find anything in Chapter 61 that states because they use Method B then it would no longer be medical retirement or treated differently in a divorce.
3) Do Chapter 61 Method A “Disability” and settle for $10,000 + 100% VA Disability monthly. Lose $4,000+ a month to know for sure my retirement would be “medical Disability” and not divisible in a divorce to protect my income for the future.
 
Cainfopro said:
Thanks. Response is for forum: Issue I’ve had with DFAS is they will not give me advice until after there is a final ruling on my case, which is when I have to decide 1 of 3 options:
1) waive out of IDES and do a regular retirement with 42 years, take my 105%xbase pay ($14,250 + 100% VA Disability CDRP
2) Do Chapter 61 PDRL Method B longevity and secure $14,250 + 100% VA Disability (CDRP) monthly. My retirement pay should be same as #1 but Retirement Classification should reflect Medical Retirement. I am unsure if Chapter 61 PDRL Method B longevity is treated different than PDRL Method A, disability percentage method. I know Method A has the 30 year/75% cap x 2.5% formula. Method B longevity has no 30 year cap but I rcant find anything in Chapter 61 that states because they use Method B then it would no longer be medical retirement or treated differently in a divorce.
3) Do Chapter 61 Method A “Disability” and settle for $10,000 + 100% VA Disability monthly. Lose $4,000+ a month to know for sure my retirement would be “medical Disability” and not divisible in a divorce to protect my income for the future.
Click to expand...
 
So in my case if I take Longevity then the difference between Disability and Longevity is divisible in a divorce. So 14,250 - 10,000 = $4,250 would be the base pay amount that would be used in the military divorce formula.
 
Cainfopro said:
So in my case if I take Longevity then the difference between Disability and Longevity is divisible in a divorce. So 14,250 - 10,000 = $4,250 would be the base pay amount that would be used in the military divorce formula.
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Re: Concurrent Receipt and CH 61 retirees who qualify for regular retirement

Hello,

Reference:
VOLUME 7B, CHAPTER 64: “CONCURRENT MILITARY RETIREMENT PAY AND DEPARTMENT OF VETERANS AFFAIRS (DVA)
DISABILITY COMPENSATION”



The changes in 2023 to the interpretation of the intent of the “CONCURRENT MILITARY RETIREMENT PAY AND DEPARTMENT OF VETERANS AFFAIRS DISABILITY COMPENSATION” entitlement to the former CRDP (this term is obsolete), effects computations for Disability Retirees who also qualify for a regular retirement (and maybe the reserve folks too).

The term CRDP is no longer in use.
The former “residual retired pay” no longer exists.
The retiree, if otherwise qualified, will automatically receive their full longevity amount AND any amount in excess of the longevity must be waived.

Some highlights:

2.3.2. Qualified Career Disability Retirees - 20 Years or More. Such members may receive concurrent Title 10, U.S.C., Chapter 61 Disability Retired Pay and DVA Disability Compensation but, in certain circumstances, may be required to waive a portion of the Title 10, U.S.C., Chapter 61 Disability Retired Pay.

2.3.3. Nature of the Payments. A Qualified Career Disability Retiree is entitled to be paid Title 10, U.S.C., Chapter 61 Disability Retired Pay concurrently with DVA Disability Compensation. The Qualified Career Disability Retiree continues to receive Title 10, U.S.C., Chapter 61 Disability Retired Pay. The nature of the Title 10, U.S.C., Chapter 61 Disability Retired Pay is not changed because Career Disability Retiree becomes a Qualified Retiree under 10 U.S.C. § 141

2.3.4. Special Rules for Qualified Career Disability Retirees. The law limits the amount of Chapter 61 Disability Retired Pay that remains subject to the General Waiver Requirement. Specifically, a Career Disability Retiree receiving Title 10, U.S.C., Chapter 61 Disability Retired Pay must waive Chapter 61 Disability Retired Pay, but only to the extent that the amount of Chapter 61 Disability Retired Pay exceeds the amount of hypothetical longevity retired pay to which the member would have been entitled under any other provision of law if the member had not been retired for disability under Title 10, U.S.C., Chapter 61. After application of the limited general waiver requirement, a Qualified Career Disability Retirees will receive their Chapter 61 Disability Retired Pay in an amount equal to the dollar amount of hypothetical longevity retired pay. In cases where a Qualified Career Disability Retiree’s hypothetical retired pay computation exceeds their Title 10, U.S.C., Chapter 61 Disability Retired Pay (based on percentage of disability), the General Waiver Requirement does not apply.
--------------------



See: DoD 7000.14-R Financial Management Regulation Volume 7B, Chapter 64 * February 2023.
for the full details.

Ron
 
Agree post is confusing and could be misleading.

In layman’s terms the reference is saying your Disability Retirement Pay cannot exceed what your Longevity Pay would be in order to receive VA Disability.

If your Disability Retirement does exceed what your Longevity would be you must waive the excess to get VA Disability.

That’s my takeaway!
 
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