WORKING WITH THE MILITARY: LEGAL CHALLENGES AND SOLUTIONS (CLE)

Transcription

1 Tuesday: Breakout Session 5 Workshop A Time: 2:45 p.m. - 4:00 p.m. Location: Regency 1 WORKING WITH THE MILITARY: LEGAL CHALLENGES AND SOLUTIONS (CLE) Straight from the Horse s mouth! Come to this session to learn about Department of Defense operations and how to best work within the DoD system directly from DoD attorneys. Also hear how to make the best use of all the locate, income, and medical support information available from DoD. You ll have an opportunity to ask questions and decide on your next move when your child support case involves a military member. Presenters: Neil Nelson Assistant General Counsel and Director of Garnishment Operations Defense Finance and Accounting Service (DFAS). Washington, DC Lieutenant Colonel Thomas R. Williams, II Deputy Director Office of Legal Policy Office of the Under Secretary of Defense for Program Integration Washington, DC Moderator: Linda Hudson FPLS State Technical Support Liaison Northrup Grumman Information Technology Panama City, FL My Notes... ERICSA 47th Annual Training Conference & Exposition Lexington, Kentucky 10

2 Eastern Region Interstate Child Support Association Annual Conference May, 2010 Dealing with the Special Needs of the Military Neal W. Nelson Assistant General Counsel Director, DFAS Garnishment Operations Lt Col Thomas R. Williams III Deputy Director, Office of Legal Policy Office of the Under Secretary of Defense

3 RESPONSIBILITIES All Child Support/Alimony Garnishments for All Civilian Employees and Military members Paid by DFAS DoD, DOE, DHHS, DVA, EPA, BBG USFSPA Applications for Court-Ordered Divisions of Military Retired Pay Commercial Garnishments Civilian Employees Military Commercial Debt Involuntary Allotments Bankruptcies

4 STRUCTURE Assistant General Counsel Neal W. Nelson Deputy Assistant General Counsel Scott Lafferty 1 Directorate Secretary Four Multi-disciplined Teams Four Supervisory Attorneys Four Supervisory Paralegals Twelve Paralegals Per Team Three Support Staff: 1 Chief of Staff, 1 State Child Support Liaison; 1 Garnishment Systems Analyst Eight Mail Equipment Operators

5 WORKLOAD Workcounts Processed: FY 2003: 365,302 FY 2004: 425,127 FY 2005: 341,281 FY 2006: 324,281 FY ,734 FY ,807 FY ,133 15% Increase! Average Monthly Pay Out: $ Million

6 WORKLOAD BY CASE TYPE Alimony/Child Support: 71.94% USFSPA: 11.91% Commercial Debt: 13.17% Military: 2.6% Civilian: 10.57% Bankruptcy: 2.98%

7 SYSTEMS Payroll Locator File System (PLFS) PLFS contains DoD Civilians, Military Active Duty, Reserves and Retirees Also contains information for employees of other agencies that DFAS pays Dramatic Reduction in Search Time Electronic Document Management System (IGARN) Interfaces with PLFS & IGS & Kids 1st All Documents Received by Mail Now Imaged Fax Gateway Electronically routes Documents to IGARN

8 SYSTEMS (Continued) Integrated Garnishment System (IGS) The Single Interface Between Imaging, PLFS and Payroll Systems Implementation Status of IGS Interface with Various Pay Systems Civilian Pay System (DCPS, NAFCPS) Retired Pay System All Active Duty Military Pay Systems Reserve Pay In Planning Phase

9 EC/EDI Initiatives Kids 1st DFAS Kids 1 st Program Child Support Enforcement Agencies Send Orders Directly to DFAS over secure network - First of its kind in the country! Kids 1 st file layout served as the model for the electronic Income Withholding Order (eiwo) program Developed in coordination with DFAS, OCSE and the states We currently have 26 states using EC to send child support orders to DFAS FY 09 - eiwo Production up 40% over FY 08 FY 09 Production Over 100,000 electronic orders received

10 EC/EDI Initiatives Kids 1 st / eiwo Five states use the Web Based process; Hawaii Wisconsin - New Mexico Utah Georgia Two states use the Batch Process; South Dakota Iowa Nineteen states in Production with eiwo- Arizona - California Colorado Illinois - Indiana Massachusetts Nebraska New York - North Carolina North Dakota Ohio - Oklahoma Oregon Pennsylvania Texas Virginia Washington Washington D.C. - West Virginia Three states In Development/Testing Projected Implementation this Calendar Year Idaho - New Jersey Michigan

11 Electronic Bankruptcy Court Interface (ebci) ebci Implemented Feb 2010 The ebci interface allows electronic transfer of Chapter 7 and Chapter 13 bankruptcy court documents from the court to DFAS. Electronic formatting of bankruptcy documents greatly increases processing timeliness and assists DFAS in becoming more responsive to court filings.

12 DoD Policy Parents Are To Be Fiscally Responsible For Their Children

13 Service Regulations Army - AR Air Force - AFI Navy - SECNAVINST Marine Corps - Marine Corps Order P (LEGADMIN) Chapter 15 Coast Guard - PERSMAN Chapter 8M

14 Resources A Caseworker s Guide to Support Enforcement and Military Personnel (Click on virtual library of training materials) Working with the Military on Child Support Matters: Trainer Guide

15 Service of Process Jurisdictional Issue Personal Service Service Overseas

16 Locate Issues and VOE S The information is contained in the Quarterly Wage & New Hire Reports these include all pays the member received for the quarter. Ask State Child Support Office for DoD External Locate Requests sent from the state to DMDC Active duty/unit duty address Reserves-unit/duty address Retired-home address Contact your state technical support liaison listed on ACF website under new hire contacts Use of subpoena is cumbersome for states & puts heavy burden on DFAS.

17 Military Locator Army Active Duty: Army Worldwide Locator 8899 E. 56th Street Indianapolis, IN Navy: Navy Personnel Command (PERS 312) 5720 Integrity Drive Millington, TN (901) fax (901) Army Reserve: Commander ARPERCEN 9700 Page Blvd St. Louis, MO (314) Air Force: HQ/AFPCDPDXIDL 550 C. St. West, Suite 50 Randolph AFB, TX (210) (210)

18 Military Locator Marine Corps: HQMC MMSB Elliot Road, Room 203 Quantico, VA (703) Coast Guard: US Coast Guard Personnel Command nd St. SW Washington, DC (202) fax (202)

19 Facilitating Service of Process Army: Office of the Judge Advocate General Attn: DAJA-LA 2200 Army Pentagon Washington, D.C (703) Navy: Office of the Judge Advocate General (Code 16) 1322 Patterson Avenue, SE Suite 3000 Washington Navy Yard, D.C (202) Air Force: AFLSA/JACA 1420 Air Force Pentagon Washington, D.C (703)

20 Facilitating Service of Process Marine Corps: Paralegal Specialist Headquarters, US Marine Corps (JAR) 2 Navy Annex Quantico, VA (703) Coast Guard: United States Coast Guard G-PC (USCG) Room 4100E, CGHQ Department of Transportation Washington, D.C (202)

21 Servicemembers Civil Relief Act (SCRA)

22 Time for a Change Congress has long recognized that the men and women of our military services should have civil legal protections so they can "devote their entire energy to the defense needs of the Nation." With hundreds of thousands of servicemembers fighting in the war on terrorism and the war in Iraq, many of them mobilized from the reserve components, the Committee believes the Soldiers' and Sailors' Civil Relief Act (SSCRA) should be restated and strengthened to ensure that its protections meet their needs in the 21st century. House Committee on Veterans Affairs Report 108 H. Rpt. 81

23 Purposes of the SCRA (1) to provide for, strengthen, and expedite the national defense through protection extended by this Act to servicemembers of the United States to enable such persons to devote their entire energy to the defense needs of the Nation; and (2) to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service.

24 ORGANIZATION Found at 50 USC App (cites herein are to 50 U.S.C. App. ) Title I - General Provisions Title II - General Relief Default judgments and stays , 522, 524, 525 Fines & Penalties in contracts Statutes of Limitation Maximum rate of interest - 527

25 ORGANIZATION (cont.) Title III ( ) Major substantive protections against evictions, termination of installment contracts, foreclosure on mortgages, and termination of leases by lessees, protection to dependents Title IV - Life Insurance ( ) Title V - Taxes and Public Lands Residence for tax purposes Title VI - Administrative Remedies Title VII - Further Relief

26 New, Improved SCRA On 19 December 2003, President Bush signed the SCRA, a complete revision of the SSCRA. The SCRA was written to: clarify the language of the SSCRA incorporate and codify many years of judicial interpretation of the SSCRA update the SSCRA to reflect developments in American life since 1940

27 Recent SCRA Amendments 2004: Amended 50 USC App 511 judgment to includes any judgment, decree, order or ruling final or temporary. Waivers of SCRA rights must be in separate documents with 12 point type. Made the stay provisions available to plaintiffs as well as defendants. Lease termination protections of 50 USC App 535 apply to spouses 2006: Amended 50 USC App 594 to insulate Service members from health insurance premium increases other than those of general applicability.

28 Recent SCRA Amendments (cont.) Default judgment protections clarified: 2008: applies to any civil proceeding, including child custody proceeding ( 521) Stay procedures clarified: applies to any civil proceeding, including child custody proceeding ( 522) Interest rate cap for mortgage type obligations extended one year beyond end of active duty ( 527) Violations of interest rate caps made punitive ( 527) Protections for pre-service mortgage obligations extended to 9 months after active duty (stays/ foreclosures) ( 533) Authority to terminate some cell phone contracts ( 535A)

29 Scope of the SCRA Who is Covered: Active Military Army, Navy, Air Force, Marine Corps, Coast Guard Reservists called to active duty National Guard in Title 10 status or Title 32 status if called to active duty for more than 30 days for purposes of responding to a national emergency declared by the President and supported by federal funds Not applicable to: Retirees Civilian Employees DoD Contractors Dependents* *Certain protections may apply to contractual obligations of dependents (e.g., leases terminations)

30 Proceedings/Orders Covered by SCRA Judicial Proceedings Administrative proceedings (as of Dec. 2003) Entry of interim orders (as of Dec. 2004) Entry of final orders The SCRA has very limited effect on the enforcement of orders

31 Automatic Stays As a general rule, the court must grant an initial stay of proceeding for no less than 90 days if properly requested by the Service member (plaintiff or defendant). Rationale: With delayed mail delivery and diminished opportunities to consult with legal counsel so common to military service, a period of time is needed to allow an adequate opportunity for servicemembers to consult with military or civilian counsel, and to respond to the courts.

32 Member Request for Stay Two-fold request: Communication from the service member: Setting forth facts in which current military duty requirements materially affect his/her ability to appear Stating a date when the Service member will be available to appear Letter from the Service member s commanding officer affirming the following: Service member's military duty prevents an appearance Military leave is not authorized for the Service member at the time of the letter *If this letter contains the Service member s available court dates, the court may deem the letter sufficient to pass the two-fold test.

33 DOD Instruction Leave & Liberty Mandates that Service member s commander grant leave for paternity and support hearings. Exceptions: Service member is deployed in a war Exigencies of military service require denial of such a request

34 Subsequent Request for Stay of Action Court has the discretion to grant or deny the stay If the court denies the stay, it must appoint an attorney to represent the Service member

35 Effect of Request on Member s Trial Application for a stay under 522 does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defense (including a defense relating to lack of personal jurisdiction).

36 SCRA and Default Judgments When a defendant does not appear in court or respond to Agency summons, the SCRA requires a sworn affidavit by the plaintiff stating either: Whether or not the defendant is in military service and showing necessary facts to support the affidavit The plaintiff is unable to determine whether or not the defendant is in military service. Consequences of failing to file an affidavit A non-service member defendant has no remedy. If the defendant is a Service member, then the order can be voided and is subject to attack upon a showing that the Service member: is materially affected by reason of military service in making a defense to the action has a meritorious or legal defense to all or part of the action.

37 SCRA and Default Judgments If defendant is not in the military, the plaintiff may proceed to final judgment. If defendant is in the military, the court is required to appoint an attorney for the defendant.

38 Appointed Counsel When defendant is a Service member, must appoint prior to granting default judgment Duties of appointed attorney protects Service member s rights determines status and seeks stay Can t waive rights or bind Service member

39 SCRA and Default Judgments SCRA default guidance applies to all of the following: Final Judgments Interim Orders (New) Court Orders Administrative Support Orders but not to administrative enforcement remedies, such as liens, wage withholdings, etc.

40 SCRA and Default Judgments Defense Manpower Data Center (DMDC) Provide Certificate as to military service on the Internet acceptable documentation to show whether he/she is in the military

41 SCRA and Default Judgments If the Service member is on active duty, this is what you ll see:

42 SCRA and Default Judgments If the Service member is NOT on active duty, this is what you ll see:

43 Reopening a Default Judgment Service member can request court to re-open judgment any time during Service member s period of military service Service member/attorney can also file an application to reopen within 90 days of the end of military service

44 6% Rate Cap SCRA rule on interest New law clarifies that interest above 6% must be forgiven (some creditors were deferring interest) Applies to child/spousal support arrearages Applies to only those arrearages incurred prior to induction to active duty Material affect analysis applies Under SCRA, Service member must request the cap and produce orders

45 Contact Information Send garnishment orders to: DFAS-HGA-CL P O Box Cleveland, OH Customer Service: Fax Gateway: Website: (click on the Garnishment link under the Quick Links Section)

46 FEIN for Military & Civilian Employees Army (Active Duty) Army (Reserve Duty) Air Force (Active Duty) Air Force (Reserve Duty) Navy (Active Duty) Navy (Reserve Duty) Marine Corp (Active & Reserve) Retired Pay DoD Civilian Employees DoE Civilian Employees HHS Civilian Employees EPA Civilian Employees BBG Civilian Employees Department of Veterans Affairs

47 Military Pay The quarterly wage report provided to NDNH includes all income received by a military person. Special Skills Pays Flight pay Hazardous duty pay Career Sea pay Submarine duty pay Jump pay Many others Bonuses Lump-sum (usually for Re-enlisting) A detailed list of those pays can be found in the DFAS Quick Guide. (See DFAS web site under child support agencies information).

48 Figuring Support Obligations States will establish support amount in accordance with their State s guidelines: Most States use all income to compute the amount Includes both taxable and non-taxable income Includes pay and allowances Military Base Pay by Rank and Time in Service Special Pays Allowances: BAH (Basic Allowance for Housing) Amount increases with Rank BAS (Basic Allowance for Subsistence)

49 What is Disposable Pay? IT DEPENDS! The Type of Garnishment Action Determines how Disposable Pay is Calculated Generally: Gross Pay Minus Authorized Deductions For Child Support Cases: Includes All Pay Items Base Pay and Special Pays Bonuses Included However Excludes Allowances like BAH, BAS, Taxes But Normal retirement deductions TSP See 5 C.F.R. 581

50 Pay System Addresses Obtain Service Members Payroll Information from the Appropriate Military Finance Center Air Force Active Duty, Air Force Reserves & National Guard DFAS Indianapolis Attn: DFAS IN-GA 8899 East 56 th Street Indianapolis, IN Navy Active Duty, Navy Reserves, All Military Retirees DFAS Cleveland Attn: DFAS CL-GAF 1240 East 9th Street Cleveland, OH Army Active Duty, Army Reserves & Army National Guard DFAS Indianapolis Attn: DFAS IN-FJEF 8899 East 56th Street Indianapolis, IN Marine Corps Active Duty DFAS Cleveland Attn: DFAS-CL -FCRAF 1240 E. 9 th Street Cleveland, OH Marine Corps Reserve Duty DFAS Cleveland Attn: DFAS-CL-FPPR 1240 East 9th Street Cleveland, OH 44199

51 Military Pay DoD Pay Tables Basic Allowance for Housing (BAH) (Contains BAH tables & zip code feature to search) Leave and Earnings Statement (LES)

52 Legal Process The laws we use: Child Support/Alimony Statutory Involuntary Allotments - 42 USC 665, 32 CFR 54 Garnishments - 42 USC 659, 5 CFR 581 Commercial Debt - Civilian/Military Civilian - 5 USC 5520a, 5 CFR 582 Military - 5 USC 5520a, 32 CFR 112, 113 Uniformed Services Former Spouses Protection Act 10 USC 1408, DoDFMR Vol 7B, Chap 29 Consumer Credit Protection Act - 15 USC 1673 Servicemembers Civil Relief Act - 50 USC App. 501 Et seq.

53 Child Support - Allocation Allocation - When we receive a second or subsequent order and the member s disposable pay is insufficient to pay all ordered amounts, we must allocate payments between the orders.

54 USFSPA Update Stringent Legal Requirements for Direct Payment Final order from Court of Competent Jurisdiction No Foreign Courts Jurisdiction over the member Residence in the jurisdiction by reason other than military assignment Domicile Consent SCRA If member is on Active Duty at time of divorce 10/10 Rule Marriage must be at least ten years that overlaps with ten years of creditable service

55 USFSPA Update Other Considerations Maximum Payment: 50% of Disposable Pay If combined with Garnishment Order - 65% Maximum Order should award fixed amount or percentage Can apply for current child support and alimony without an IWO Can apply for child support arrears

56 Voluntary Acknowledgement of Paternity Previous DoD policy - Out of wedlock children were dependents for health care benefits Judicial determination of paternity Dependent upon member for more than 50 percent of his or her support January 28, New policy expands and creates a third category: a voluntary acknowledgement of paternity Policy is to facilitate entitlements to military benefits provided to children of Uniformed Service Members

57 Medical Support From Military OCSE works with the states on a FCR and DOD Medical coverage match - First match December 2005 Provided on a Quarterly Basis Identifies children currently enrolled and eligible for enrollment in DEERS Eliminates the need to send NMSN to DMDC - get info faster Use automated match for Active, Reserves, and Retired Military Civilians - no change. Human resource address on New hire and Quarterly wage records provides medical coverage information Enrollment Nearest location or web site - RAPID s address Need name & SSN of obligor plus name, SSN and date of birth of child

58 Medical Support - Military Case Actions: For children already enrolled, annotate the case and ensure medical support is in the order (counts on OCSE 157) New! Sponsor information is available for child, preadoptive child, foster child, or ward. When one parent is in the military, but child is not enrolled, refer the CP to the nearest RAPIDS Center For children previously covered, update record and ensure actions are taken to obtain new medical coverage

59 Medical Support - Civilians Dept of Energy-DOE payroll, Germantown Rd Germantown, MD Dept of HHS- DHHS payroll Support Division, PO BOX 14950, Silver Spring, MD Dept of EPA-USEPA/OARM/OHR/3661A, Room B324H, 1200 Pennsylvania Ave, NW Washington DC 20460

60 Dealing with the Special Needs of the Military

61 Helpful Website Links DFAS Pay Tables Explanation of LES BAH Calculator My Pay Combat Zone - IRS Impact Combat Zones around the world RAPIDS Locator MAIL USPS Domestic Manual International Mail Manual Military Mail Address APO/FPO Military Postal Service Agency LOCATE Military Installation Guide Find a buddy Together we served Navy Ship Addresses Marine Unit Locations Army Installations SCRA Hague Convention Service of Process Convention Evidence Convention US State Department-service of pro US State Department-child support

62 Military Rank and Pay Grade Chart Pay Grade Navy Army Air Force Marine Corps Coast Guard Commissioned Officers 0-1 Ensign (ENS) 2nd Lieutenant (2LT) 2nd Lieutenant (2d Lt) Second Lieutenant (2ndLt) Ensign (ENS) Lieutenant Junior Grade 1st Lieutenant 1st Lieutenant 1st Lieutenant Lieutenant Junior Grade 0-2 (LTJG) (1LT) (1LT) (1LT) (LTJG) 0-3 Lieutenant (LT) Captain (CAPT) Captain (CAPT) Captain (CAPT) Lieutenant (LT) 0-4 Lieutenant Commander (LCDR) Major (MAJ) Major (MAJ) Major (MAJ) Lieutenant Commander (LCDR) Lieutenant Colonel Lieutenant Lieutenant Commander 0-5 Commander (CDR) (LTC) Colonel (Lt Col) Colonel (Lt Col) (CDR) 0-6 Captain (CAPT) Colonel (COL) Colonel (Col) Colonel (Col) Captain Rear Admiral (Lower Half) ( (RADM) (L) Rear Admiral (Upper Half) (RADM) (U) 0-9 Vice Admiral (VADM) Brigadier General (BGEN) Major General (MGEN) Lieutenant General (LGEN) Brigadier General (Brig Gen) Major General (Maj Gen) Lieutenant General (Lt Gen) Brigadier General (BrigGen) Major General (MajGen) Lieutenant General (LtGen) Rear Admiral (Lower Half) ( (RADM) (L) Rear Admiral (Upper Half) (RADM) (U) Vice Admiral (VADM) 0-10 Admiral (ADM) General (GEN) General (Gen) General (Gen) Admiral (ADM)

63 Military Rank and Pay Grade Chart cont. Pay Grade Navy Army Marine Corps Coast Guard Warrant Officers W1 Warrant Officer-1 (WO1) W2 Chief Warrant Officer-2 (CWO-2) Warrant Officer-2 (CW) Chief Warrant Officer 2 (CWO2) Chief Warrant Officer 2 (CWO2) W3 W4 Chief Warrant Officer-3 (CWO-3) Chief Warrant Officer-4 (CWO-4) Warrant Officer-3 (CWO-3) Chief Warrant Officer-4 (CWO-4) "Chief" Chief Warrant Officer-3 (CWO-3) Chief Warrant Officer 4 (CWO-4) Chief Warrant Officer-3 (CWO-3) Chief Warrant Officer 4 (CWO-4)

64 Military Rank and Pay Grade Chart cont. Pay Grade Navy Army Air Force Marine Corps Coast Guard Enlisted Personnel E-1 Seaman Recruit (SR) Private E-1 (PV1) Airman Basic (AB) Private (Pvt) Seaman Recruit (SR) E-2 Seaman Apprentice (SA) Private E-2 (PV2) Airman (Am) Private First Class (PFC) Seaman Apprentice (SA) E-3 Seaman (SN) Private First Class (PFC) Airman First Class (A1C) Lance Corporal (LCpl) Seaman (SN) E-4 Petty Officer, 3rd Class (PO3) "Third Specialist 4 (SPC) OR Corporal (CPL) Sergeant (SGT) OR Sernior Airman (SrA) Corporal (Cpl) Petty Officer 3rd Class (PO3) "Third Class" E-5 Petty Officer, 2nd Class (PO2) Sergeant (SGT) Staff Sergeant (SSgt) Sergeant (Sgt) Petty Officer 2nd Class (PO2) E-6 E-7 Class (PO1) "First Class" Chief Petty Officer (CPO) "Chief" Staff Sergeant (SSG) Sergeant First Class (SFC) Technical Sergeant (TSgt) Master Sergeant (MSgt) OR First Sergeant Staff Sergeant (SSgt) Gunnery Sergeant (GySgt) Petty Officer 1st Class (PO1) "First Class" Chief Petty Officer (CPO) "Chief" E-8 E-9 Senior Chief Petty Officer (SCPO) "Senior Chief" Fleet (or Command) Master Chief Petty Officer OR Master Chief Petty Officer (MCPO) Master Sergeant (MSG) OR First Sergeant (1SG) Sergeant Major (SMAJ) OR Command Sergeant Major (CSM) Senior Master Sergeant (SMSgt) OR First Sergeant (E-8) Chief Master Sergeant (SMSgt OR First Sergeant (E-9) First Sergeant (1Sgt) or Master Sergeant (MSgt) Sergeant Major (SgtMaj) OR Master Gunnery Sergeant (MGySgt) Senior Chief Petty Officer (SCPO) "Senior Chief" Command Enlisted Advisor OR Master Chief Petty Officer (MCPO) E-10 Master Chief Petty Officer of the Navy (MCPON) Special Grades² Sergeant Major of the Army (SMA) Chief Master Sergeant of the Air Force (CMSAF) Sergeant Major of the Marine Corps (SgtMajMC) Master Chief Petty Officer of the Coast Guard (MCPO-CG)

65 Your Financial Work