The question has been resolved of whether Concurrent Retirement and Disability Pay (CRDP) is divisible in military divorce where the Servicemember has been medically retired under 10 U.S.C. Chapter 61 for being physically unfit for continued duty. It is not divisible.
Recall that under 38 U.S.C. § 5305, Waiver of Retired Pay, a Servicemember who receives VA disability compensation is required to waive a like amount of military retired pay to prevent duplication of payments—except as provided in 10 U.S.C. § 1414, Concurrent Retirement and Disability Pay (for brevity, “the CRDP provision”).1,2
The CRDP provision states that for Chapter 61 retirees with 20 or more years of service, the Servicemember remains subject to the VA Waiver for disability retired pay received in excess of retired pay the Servicemember would receive had they retired hypothetically for longevity.2 For example, assume the following:2
- The Servicemember retired under Chapter 61 with a 60 percent disability rating, which equates to a 60 percent “disability” retired pay multiplier, and 20 years of service which equates to a hypothetical 50 percent “longevity” retired pay multiplier.
- Keeping the math simple, based on the disability retired pay multiplier, the Servicemember actually receives $1,000 per month in disability retired pay.
- Based on the hypothetical “longevity” retired pay multiplier, the Servicemember hypothetically would receive $900 per month.
- The Servicemember also receives $500 per month in VA disability compensation.
- Waiver Outcome: The Servicemember will be subject to a VA Waiver of $100 (i.e., equal to the amount that Servicemember’s disability retired pay of $1,000 exceeds the hypothetical longevity retired pay of $900).
Overall Outcome: Under the example above, the Servicemember will receive Chapter 61 disability retired pay of $900 per month, which includes CRDP of $400 per month (i.e., CRDP being equal to the amount of VA disability compensation not subject to the VA Waiver) and $500 per month in VA disability compensation.2,3 The governing Dept. of Defense Financial Management Regulation (DODFMR), Chapter 64, makes it clear that the $900 per month in Chapter 61 disability retired pay is not “waived” and “restored.” Its nature has not changed—it remains Chapter 61 disability retired pay.3 Chapter 61 disability retired pay is not disposable retired pay and, therefore, not subject to payment under the Uniformed Services Former Spouse Protection Act.3,4 For an excellent explanation with easy-to-understand examples, please read Chapter 64 of the DODFMR.
Author Jim Cramp is a retired active duty colonel and principal attorney at the Cramp Law Firm, PLLC. The firm specializes in Military and Federal Civil Service divorce matters, as well as other family law matters that affect Military and Federal Civil Service families.
Note1 – See 38 U.S.C. § 5305 (describing the VA waiver except as established in 10 U.S.C. § 1414).
Note2 – See 10 U.S.C. § 1414(a) (describing CRDP) and § 1414(b) (describing special rules for Chapter 61 retirees with 20 or more years of service).
Note3 – See Dept. of Defense Financial Management Regulation 7000.14-R, Volume 7B, Military Pay Policy—Retired Pay, Chapter 64, Concurrent Military Retirement Pay and Department of Veterans Affairs (DVA) Disability Compensation, Paragraph 2.3, Physical Disability Retirement; Paragraph 5.2, Relation to Uniformed Services Former Spouse Protection Act (USFSPA), and 5.3, Relation to Other Laws and Processes (collectively describing disability retired pay pursuant to Chapter 61 and its relationship to CRDP, VA disability compensation, and payments to former spouses under the USFSPA to the extent that disposable retired pay exits, if any).
Note4 – See 10 U.S.C. § 1408(c)(1) (granting State Courts authority to treat only “disposable retired pay” marital property in divorce) and § 1408(a)(4)(A)(ii)-(iii) (excluding from “disposable retired pay,” retired pay received under Chapter 61 and retired pay waived in order to receive “VA disability compensation).