BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100028854 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, the former spouse of a Soldier, requests correction of records to show that on 16 September 2009, she applied and elected to receive payments under the Uniformed Services Former Spouses' Protection Act (USFSPA) under Title 10, U.S. Code, section 1408(h) (Benefits for Dependents Who are Victims of Abuse by Members Losing Right to Retired Pay) instead of applying for the Transitional Compensation under Title 10, U.S. Code, section 1059(g) (Spouse and Former Spouse Forfeiture Provisions).

2.  She states that she did not receive proper counseling or information from the Army Transitional Compensation Office or the Defense Finance and Accounting Service (DFAS).  She kept receiving incorrect information.  First, she was told she would be able to file for both programs, the transitional compensation for her children and the USFSPA for herself.  Then, she was told her children were not entitled to any payments and that she would have to repay the amount of $9,607.50 in transitional compensation back to DFAS.  She was further informed if the record is not corrected, DFAS would recoup this amount.  However, she was also told the recoupment could be prevented if she gets a correction to the record to show she applied for USFSPA payment under section 1408(h) of the law instead of the transitional compensation.

3.  She provides a letter from DFAS authorizing her entitlements under Title 10, U.S. Code, section 1408(h) and section 1059, and encouraging her to seek a correction with the Army Board for Correction of Military Records (ABCMR).

CONSIDERATION OF EVIDENCE:

1.  The Soldier entered active service on 4 March 1986 and he held military occupational specialty 91B (Health Care Specialist).  He served through multiple reenlistments in the Regular Army and attained the rank/grade of first sergeant (1SG)/E-8.  The Soldier and the applicant were married on 29 August 1986.

2.  On 3 November 2006, the Soldier and applicant were divorced.  Their divorce decree stipulated the applicant was entitled to the sum equal to 50 percent (%) of the disposable retired pay of an E-8 with 20 years of creditable active service to be paid as a result of the Soldier's service in the armed forces.  The Soldier and the applicant had three children:

* KLT, born on 25 November 1988
* KRT, born on 3 November 1993
* TWT, born on 22 August 1997

3.  In 2007, the Soldier was diagnosed with various ailments.  He entered the Army's physical disability evaluation system (PDES) and it appears his records were considered by a medical evaluation board (MEB) that referred him to a physical evaluation board (PEB).

4.  On 24 August 2007, an informal PEB convened at Fort Sam Houston, TX, and found the Soldier's conditions prevented him from performing the duties required of his grade and specialty.  It further determined he was physically unfit due to various conditions.  The PEB rated him under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and he was granted a 40% disability rating percentage for a major depressive disorder, low back pain, and right lower extremity radiculopathy.  The PEB recommended placing the SM on the temporary disability retired list (TDRL).  The Soldier concurred with the findings and recommendation.

5.  On 19 September 2007, Headquarters, III Corps and Fort Hood, Fort Hood, TX, published Orders 262-0114, ordering the Soldier's retirement by reason of temporary disability, effective 27 November 2007, and placement on the TDRL on the following day.

6.  On 26 October 2007, his retirement orders were rescinded.

7.  On 16 September 2009, the SM was convicted by a general court-martial of:

* two specifications of rape of a person under the age of 16
* 
one specification of committing an indecent act on KLT
* one specification of being absent without leave (AWOL) from 24 May to  30 June 2009

The court sentenced him to confinement for 16 years and a dishonorable discharge.

8.  On 15 April 2010, the convening authority approved the sentence and except for the dishonorable discharge, he ordered it executed.  The automatic forfeiture of all pay and allowances was deferred effective 30 September 2009 and ceased on 30 March 2010.  The automatic forfeiture of all pay and allowances was waived, effective 30 September 2009, for a period of 6 months with direction that these funds be paid to the applicant.

9.  On 15 October 2009, she submitted a DD Form 2698 (Application for Transitional Compensation).  The application was certified by a Fort Hood Deputy Staff Judge Advocate on 30 October 2009.

10.  On 18 February 2010, by memorandum, an official at Headquarters, Department of the Army, Family and Morale, Welfare and Recreational Command (FMWRC), Alexandria, VA, notified the applicant that:

* in accordance with DOD Instruction 1342.24, Transitional Compensation for Abused Dependents, the FMWRC authorized payment to her for her dependent children
* payments were authorized for 36 months beginning on 16 September 2009 and ending on 15 September 2012
* payment is at the rate in effect for Dependency and Indemnity Compensation (DIC) under Title 38, U.S. Code, section 1311(b) ($305.00 for each child, total $915.00 per month)
* during the entitlement period, the children are entitled to commissary and exchange privileges, medical care under TRICARE, and dental services (space available)

11.  On 12 November 2010, by letter to the applicant, an assistant counsel at the Garnishment Operations Office, DFAS, Cleveland, OH, notified the applicant that:

	a.  she applied for Transitional Compensation payments under Title 10, U.S. Code, section 1059, on 16 September 2009.  Then, in May 2010, she applied for division of property payments pursuant to the USFSPA, Title 10, U.S. Code, section 1408(h).
	b.  in August 2010, the Retired Pay Office terminated the monthly payments of transitional compensation in favor of the entitlements under section 1408(h), which is the greater of the two and of a longer duration.  The official recommended she requests correction of the record to show she applied for an elected direct payment of the court ordered division of property payments pursuant to section 1408(h).

	c.  she obtained incorrect information when she applied for transitional compensation.  She was informed she would receive transitional compensation for the children under section 1059 and for herself under section 1408(h).  She was never informed that any amounts of transitional compensation that she received would be recouped.

	d.  there is no legal authority in section 1059(g) to make independent payments directly to a member's dependent children if they were residing with the spouse or former spouse.  Section 1059(g) clearly indicates the spouse or former spouse shall not receive payments under section 1059 and section 1408(h).  Additionally, DOD Financial Management Regulation (DODFMR), paragraph 600108, states if the spouse or former spouse receives transitional compensation under Title 10, U.S. Code, section 1059 and is later determined to be eligible for payment under section 1408(h), the amount of transitional compensation shall be recouped.  Therefore, the recoupment of the $9,607.50 is a matter of law.

	e.  the court order pertaining to direct payment under section 1408(h) was in effect at the time she applied for transitional compensation (i.e. she had a valid court order that awarded her the division of the Soldier's retirement pay on
16 September 2009).  Under these circumstances, if she had been properly counseled to apply for the direct payment under section 1408(h), she would not have received the transitional compensation amounts and no recoupment would be necessary.  Because the effective counseling does not appear to have been afforded to her, it was recommended that she request correction to the record.

	f.  if the record is corrected to show she applied for and elected section 1408(h) payment from 16 September 2009, all amounts paid to date may be characterized as such and no recoupment of transitional compensation would be required.  However, if a determination is made that she was overpaid for section 1408(h) amounts, then she would still owe this amount.

12.  Title 10, U.S. Code, section 1059 (Dependents of members separated for dependent abuse:  transitional compensation; commissary and exchange benefits) states the Secretary of Defense, with respect to the armed forces (other 

than the Coast Guard when it is not operating as a service in the Navy) may establish a program to pay monthly transitional compensation in accordance with this section to dependents or former dependents of a member of the armed forces described in subsection (b).  Upon establishment of such a program, the program shall apply in the case of each such member described in subsection (b) who is under the jurisdiction of the Secretary establishing the program.

	a.  Subsection b (Punitive and other adverse action covered) of this law applies in the case of a member of the armed forces on active duty for a period of more than 30 days who is convicted of a dependent-abuse offense (as defined in subsection (c)) and whose conviction results in the member being separated from active duty pursuant to a sentence of a court-martial; or forfeiting all pay and allowances pursuant to a sentence of a court-martial; or who is administratively separated, voluntarily or involuntarily, from active duty in accordance with applicable regulations.

	b.  Subsection d (Recipients of payments) states in the case of any individual described in subsection (b), the Secretary shall pay such compensation to dependents or former dependents of the individual as follows: 

		(1)  If the individual was married at the time of the commission of the dependent-abuse offense resulting in the separation, such compensation shall be paid to the spouse or former spouse to whom the individual was married at that time, including an amount (determined under subsection (f)(2)) of this law for each, if any, dependent child of the individual described in subsection (b) who resides in the same household as that spouse or former spouse. 

		(2)  If there is a spouse or former spouse who is or, but for subsection (g) of this law, would be eligible for compensation under this section and if there is a dependent child of the individual described in subsection (b) who does not reside in the same household as that spouse or former spouse, compensation under this section shall be paid to each such dependent child of the individual described in subsection (b) who does not reside in that household.

		(3)  If there is no spouse or former spouse who is (or but for subsection (g) of this law would be) eligible under paragraph (1), such compensation shall be paid to the dependent children of the individual described in subsection (b). 

		(4)  For purposes of this subsection, an individual’s status as a "dependent child" shall be determined as of the date on which the individual described in subsection (b) is convicted of the dependent-abuse offense or, in a case 

described in subsection (b)(2), as of the date on which the individual described in subsection (b) is separated from active duty

	c.  Subsection g (Spouse and former spouse - Forfeiture provisions) states:

		(1)  If a former spouse receiving compensation under this section remarries, the Secretary shall terminate payment of such compensation, effective as of the date of such marriage.  The Secretary may not renew payment of compensation under this section to such former spouse in the event of the termination of such subsequent marriage. 

		(2)  If after a punitive or other adverse action is executed in the case of a former member as described in subsection (b) of the law the former member resides in the same household as the spouse or former spouse, or dependent child, to whom compensation is otherwise payable under this section, the Secretary shall terminate payment of such compensation, effective as of the time the former member begins residing in such household.  Compensation paid for a period after the former member’s separation, but before the former member resides in the household, shall not be recouped.  If the former member subsequently ceases to reside in such household before the end of the period of eligibility for such payments, the Secretary may not resume such payments.

		(3)  In a case in which the victim of the dependent-abuse offense resulting in a punitive or other adverse action described in subsection (b) of the law was a dependent child, the Secretary concerned may not pay compensation under this section to a spouse or former spouse who would otherwise be eligible to receive such compensation if the Secretary determines (under regulations prescribed under subsection (k)) of the same law that the spouse or former spouse was an active participant in the conduct constituting the dependent-abuse offense.

13.  Title 10, U.S. Code, section 1408 (Payment of retired or retainer pay in compliance with court orders) states in subsection (h):

	a.  Subsection 1a, if, in the case of a member or former member of the armed forces referred to in paragraph (2)(A) of this section, a court order provides (in the manner applicable to a division of property) for the payment of an amount from the disposable retired pay of that member or former member (as certified under paragraph (4)) of this section to an eligible spouse or former spouse of that member or former member, the Secretary concerned, beginning upon effective service of such court order, shall pay that amount in accordance with this subsection to such spouse or former spouse. 

	b.  Subsection 1b, if, in the case of a member or former member of the armed forces referred to in paragraph (2)(A) of this section, a court order provides for the payment as child support of an amount from the disposable retired pay of that member or former member (as certified under paragraph (4)) of this section to an eligible dependent child of the member or former member, the Secretary concerned, beginning upon effective service of such court order, shall pay that amount in accordance with this subsection to such dependent child. 

	c.  Subsection 2, a spouse or former spouse, or a dependent child, of a member or former member of the armed forces is eligible to receive payment under this subsection if: 

		(1)  Subsection 2A, the member or former member, while a member of the armed forces and after becoming eligible to be retired from the armed forces on the basis of years of service, has eligibility to receive retired pay terminated as a result of misconduct while a member involving abuse of a spouse or dependent child (as defined in regulations prescribed by the Secretary of Defense).

		(2)  Subsection 2B, in the case of eligibility of a spouse or former spouse under paragraph (1)(A), the spouse or former spouse was the victim of the abuse and was married to the member or former member at the time of that abuse; or  is a natural or adopted parent of a dependent child of the member or former member who was the victim of the abuse.

		(3)  Subsection 2C, in the case of eligibility of a dependent child under paragraph (1)(B), the other parent of the child died as a result of the misconduct that resulted in the termination of retired pay. 

	d.  Subsection 3, the amount certified by the Secretary concerned under paragraph (4) with respect to a member or former member of the armed forces referred to in paragraph (2)(A) shall be deemed to be the disposable retired pay of that member or former member for the purposes of this subsection. 

	e.  Subsection 4, upon the request of a court or an eligible spouse or former spouse, or an eligible dependent child, of a member or former member of the armed forces referred to in paragraph (2)(A) in connection with a civil action for the issuance of a court order in the case of that member or former member, the Secretary concerned shall determine and certify the amount of the monthly retired pay that the member or former member would have been entitled to receive as of the date of the certification:

		(1)  Subsection 4A, if the member or former member’s eligibility for retired pay had not been terminated as described in paragraph (2)(A); and 

		(2)  Subsection 4B, if, in the case of a member or former member not in receipt of retired pay immediately before that termination of eligibility for retired pay, the member or former member had retired on the effective date of that termination of eligibility. 

	f.  Subsection 5, a court order under this subsection may provide that whenever retired pay is increased under section 1401 of this title (or any other provision of law), the amount payable under the court order to the spouse or former spouse, or the dependent child, of a member or former member described in paragraph (2)(A) shall be increased at the same time by the percent by which the retired pay of the member or former member would have been increased if the member or former member were receiving retired pay. 

	g.  Subsection 6, notwithstanding any other provision of law, a member or former member of the armed forces referred to in paragraph (2)(A) shall have no ownership interest in, or claim against, any amount payable under this section to a spouse or former spouse, or to a dependent child, of the member or former member. 

	h.  Subsection 7A, if a former spouse receiving payments under this subsection with respect to a member or former member referred to in paragraph (2)(A) marries again after such payments begin, the eligibility of the former spouse to receive further payments under this subsection shall terminate on the date of such marriage; and subsection 7B, a person’s eligibility to receive payments under this subsection that is terminated under subparagraph (A) by reason of remarriage shall be resumed in the event of the termination of that marriage by the death of that person’s spouse or by annulment or divorce. The resumption of payments shall begin as of the first day of the month in which that marriage is so terminated. The monthly amount of the payments shall be the amount that would have been paid if the continuity of the payments had not been interrupted by the marriage. 

	i.  Subsection 8, payments in accordance with this subsection shall be made out of funds in the DOD Military Retirement Fund established by section 1461 of this title.

	j.  Subsection 9:

		(1)  Subsection 9A, a spouse or former spouse of a member or former member of the armed forces referred to in paragraph (2)(A), while receiving payments in accordance with this subsection, shall be entitled to receive medical and dental care, to use commissary and exchange stores, and to receive any other benefit that a spouse or a former spouse of a retired member of the armed forces is entitled to receive on the basis of being a spouse or former spouse, as the case may be, of a retired member of the armed forces in the same manner as if the member or former member referred to in paragraph (2)(A) was entitled to retired pay. 

		(2)  Subsection 9B, a dependent child of a member or former member referred to in paragraph (2)(A) who was a member of the household of the member or former member at the time of the misconduct described in paragraph (2)(A) shall be entitled to receive medical and dental care, to use commissary and exchange stores, and to have other benefits provided to dependents of retired members of the armed forces in the same manner as if the member or former member referred to in paragraph (2)(A) was entitled to retired pay. 

		(3)  Subsection 9C, if a spouse or former spouse or a dependent child eligible or entitled to receive a particular benefit under this paragraph is eligible or entitled to receive that benefit under another provision of law, the eligibility or entitlement of that spouse or former spouse or dependent child to such benefit shall be determined under such other provision of law instead of this paragraph.

	k.  Subsection 10:

		(1)  Subsection 10A, for purposes of this subsection, in the case of a member of the armed forces who has been sentenced by a court-martial to receive a punishment that will terminate the eligibility of that member to receive retired pay if executed, the eligibility of that member to receive retired pay may, as determined by the Secretary concerned, be considered terminated effective upon the approval of that sentence by the person acting under section 860c of this title (article 60(c) of the Uniform Code of Military Justice). 

		(2)  Subsection 10B, if each form of the punishment that would result in the termination of eligibility to receive retired pay is later remitted, set aside, or mitigated to a punishment that does not result in the termination of that eligibility, a payment of benefits to the eligible recipient under this subsection that is based on the punishment so vacated, set aside, or mitigated shall cease. The cessation 

of payments shall be effective as of the first day of the first month following the month in which the Secretary concerned notifies the recipient of such benefits in writing that payment of the benefits will cease. The recipient may not be required to repay the benefits received before that effective date (except to the extent necessary to recoup any amount that was erroneous when paid).

	l.  Subsection 11.  In this subsection, the term "dependent child," with respect to a member or former member of the armed forces referred to in paragraph (2)(A), means an unmarried legitimate child, including an adopted child or a stepchild of the member or former member, who:

		(1)  Subsection 11A, is under 18 years of age.

		(2)  Subsection 11B, is incapable of self-support because of a mental or physical incapacity that existed before becoming 18 years and is dependent on the member or former member for over one-half of the child’s support; or 

		(3)  Subsection 11C, if enrolled in a full-time course of study in an institution of higher education recognized by the Secretary of Defense for the purposes of this subparagraph, is under 23 years of age and is dependent on the member or former member for over one-half of the child’s support. 

DISCUSSION AND CONCLUSIONS:

1.  The Soldier entered active duty on 4 March 1986 and he married his spouse, the applicant, on 29 August 1986.  They were divorced on 3 November 2006.  They had 3 children at the time.  Their divorce decree stipulated that the Soldier would pay 50% of his retired pay to the applicant.  The Soldier was to be retired and placed on the TDRL effective 28 November 2007.  However, his retirement orders were rescinded prior to the effective date and he was subsequently convicted by a general court-martial for various specifications that resulted in confinement and a dishonorable discharge.

2.  After his conviction, his former spouse, the applicant, submitted an application for transitional compensation under Title 10, U.S. code, section 1059, using a
DD Form 2698.  Her application was approved and she was authorized monthly payment for each of her 3 children at the rate of $305.00 per child, effective 16 September 2009, the date the court-martial was approved.  She received a total of $9,607.50.

3.  However, it appears that at the time she submitted her application she was not properly counseled.  As the DFAS letter states, she obtained incorrect 

information when she applied for transitional compensation.  She was informed she would receive transitional compensation for the children under section 1059 and for herself under section 1408(h).  She was never informed that any amounts of transitional compensation that she received would be recouped.

4.  There is no legal authority in section 1059(g) to make independent payments directly to a member's dependent children if they were residing with the spouse or former spouse.  Section 1059(g) clearly indicates the spouse or former spouse shall not receive payments under section 1059 and section 1408(h).  Additionally, DODFMR, paragraph 600108 states if the spouse or former spouse receives transitional compensation under section 1059 and later determined to be eligible for payment under section 1408(h), the amount of transitional compensation shall be recouped.  Therefore, the recoupment of the $9,607.50 is a matter of law.

5.  The court order pertaining to direct payment under 1408(h) was in effect at the time she applied for transitional compensation (i.e. she had a valid court order that awarded her the division of the Soldier's retirement pay on
16 September 2009).  Under these circumstances, if she had been properly counseled to apply for the direct payment under 1408(h), she would not have received the transitional compensation amounts and no recoupment would be necessary.  Because the effective counseling does not appear to have been afforded to her, it was recommended that she request correction to the record.

6.  In the interest of justice, her application should be corrected to show she applied for and elected section 1408(h) payment from 16 September 2009, and as such, all amounts paid to date may be characterized as such and no recoupment of transitional compensation would be required.  However, if a determination is made that she was overpaid for 1408(h) amounts, then she would still owe this amount.

BOARD VOTE:

____x___  ___x____  __x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

	a.  showing that on 16 September 2009 the applicant timely applied for and elected the direct payment of the court ordered division of property payments pursuant to Title 10, U.S. Code, section 1408(h), instead of applying for transitional compensation payments under Title 10, U.S. Code, section 1059; and

	b.  showing the Defense Finance and Accounting Service timely received and processed her application.

2.  The Board further recommends the Defense Finance and Accounting Service conduct an audit and if applicable pay the applicant any amount due as a result of this correction.



      _________x_____________
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20100028854



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ABCMR Record of Proceedings (cont)                                         AR20100028854



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