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Military Divorce: Identifying, Discovering, Obtaining, and Introducing Military Financial and Other Documents

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THURSDAY, JANUARY 23, 2020

Presenting a live 90-minute webinar with interactive Q&A

Kristopher J. Hilscher, Attorney, Law Offices of Mark E. Sullivan, Raleigh, N.C.

Dawn M. Laubach, Founder, Laubach Law Office, San Antonio

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MILITARY DIVORCE: Identifying, Obtaining and Introducing Military Financial (and Other) Documents

Kris Hilscher, Raleigh, NCkris.hilscher@ncfamilylaw.com

Dawn M. Laubach, San Antonio, TXlaubachlegal@hotmail.com

Strafford Webinars

LEARNING ABOUT DOCUMENTS YOU’LL NEED IN A MILITARY DIVORCE CASE

… and how to tame that paper

tiger!

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(without getting in “over your head”!!)

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Overview

• Income Documents for Support•Military Retirement Division as Property

•TSP•SBP•Miscellaneous

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Setting Your SightS

on Support

9

• LES

• RAS

• Disability Pay

• Other Documents to Consider

Reading and Understanding Them

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Leave-and-Earning Statement

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https://mypay.dfas.mil

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How to Read an LES

[Leave-and-Earnings

Statement]

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Leave-and-Earning Statement

Rank and Date of Pay

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Leave-and-Earning Statement

Yrs. of Svc. & Dischg. Date

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Leave-and-Earning Statement

Base Pay + BAS + BAH

= Total Entitlements

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Leave-and-Earning Statement

Discretionary Allotments

What’s this for… a car?

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Leave-and-Earning Statement

Used and unused LEAVE

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Leave-and-Earning Statement

West Virginia

State of Residence for Tax Purposes

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Leave-and-Earning Statement

Number of

Exemptions

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Leave-and-Earning Statement

Total Income

= $6,091.86

Difference= $1,525.26 = BAS, BAH

Taxable Wages

= $4,566.60

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RETIREE ACCOUNT STATEMENT

STATEMENT EFFECTIVE DATEDEC 16, 2005

NEW PAY DUE AS OFFEB 01, 2006

SSN123 – 45 – 6789

PLEASE REMEMBER TO NOTIFY DFAS IF YOUR ADDRESS CHANGES

Major John Q. Doe, USAF (Ret.)123 Green StApex, NC 27511-1234

DFAS-CL POINTS OF CONTACT

DEFENSE FINANCE AND ACCONTING SERVICEUS MILITARY RETIREMENT PAYPO BOX 7130 LONDON KY 40742-7130COMMERCIAL (216) 522-5955TOLL FREE 1-800-321-1080TOLL FREE FAX 1-800-469-6559myPAYhttps://myPay.dfas.mil1-877-363-3677

PAY ITEM DESCRIPTION

ITEM OLD NEW ITEM OLD NEW

GROSS PAYVA WAIVERSBP COSTSTAXABLE INCOME

2,746.00591.30179.28

1,975.42

2,746.00473.04179.28

2,093.68

FITWALLOTMENTS/BONDSNET PAY

191.3140.00

1,744.11

209.0540.00

1,844.63

PAYMENT ADDRESSYEAR TO DATE SUMMARY (FOR INFORMATION ONLY)

DIRECT DEPOSIT TAXABLE INCOME: 1,975.42 FEDERAL INCOME TAX WITHHELD: 191.31

TAXES

FEDERAL WITHHOLDING STATUS: SINGLETOTAL EXEMPTIONS: .01FEDERAL INCOME TAX WITHHELD: 209.05

SURVIVOR BENEFIT PLAN (SBP) COVERAGE

SBP COVERAGE TYPE: SPOUSE AND CHILD(REN) ANNUITY BASE AMOUNT: 2750.50SPOUSE COST: 176.78 55% ANNUITY AMOUNT:1,512.77 CHILD COST: 50 40% ANNUITY AMOUNT: 1,100.20

SPOUSE DOB: 12 DEC 1945

CHILD DOB: 13 MAR 1996

THE ANNUITY PAYABLE IS 55% OF YOUR ANNUITY BASE AMOUNT UNTIL YOUR SPOUSE REACHES AGE 62. AT AGE 62, THE ANNUITY MAY BE REDUCED DUE TO SOCIAL SECURITY OFFSET, ORUNDER THE TWO-TIER FORMULA. THAT REDUCTION MAY RESULT IN AN ANNUITY THAT RANGES BETWEEN40% ($1100.20) AND 55% (1512.77) OF THE ANNUITY BASE AMOUNT. THE COMBINATION OF THE SBP ANNUITY AND THE SOCIAL SECURITY BENEFITS WILL PROVIDE TOTAL PAYMENTS FROM DFAS ANDTHE SOCIAL SECURITY ADMINISTRATION OF AT LEAST 55% OF YOUR BASE AMOUNT. THE ACTUALANNUITY PAYABLE IS DEPENDENT ON FACTORS IN EFFECT WHEN THE ANNUITY IS ESTABLISHED.

The RASRetiree Account Statement

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Many states allow use of disability pay for calculation of child support

• VA Disability

• CRSC

• Social Security Disability

• CRDP – no separate document (It’s on RAS)

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• Department of Veterans Affairs = VA• Rating letters tell what % rating is

assigned to “service-connected disabilities” of the retiree

• Less than 50% = VA waiver• Look on RAS

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CRSC Pay Statement

STATEMENT EFFECTIVE DATEAPR 21, 2006

PAYMENT DATEMAY 01, 2006

SSN123-45-6789

RETIREE’S NAME AND ADDRESS HOW TO CONTACT US

PLEASE REMEMBER TO NOTIFY DFAS OF YOUR ADDRESS CHANGESMAJOR JOHN Q. DOE, USAF (RET.)123 GREEN STREETAPEX, NC 27511-1234PAYMENT ADDRESSDIRECT DEPOSIT

DEFENSE FINANCE AND ACCOUNTING SERVICEUS MILITARY RETIRED PAYPO BOX 7130LONDON, KY 40742-7130COMMERCIAL (216) 522-6398TOLL-FREE 1-800-472-7098TOLL-FREE FAX 1-800-469-6559myPayhttps://myPay.dfas.mil 1-877-363-3677

PAYMENT INFORMATION ENTITLEMENT INFORMATION

CRSC Payment 377.00CRSC Debt Deduction 0CRSC Garnishment Deduction 0CRSC Net Pay 377.00

Retired Pay Before Deductions 2,746.00Retired Pay Offset by DVA Compensation 757.00CRSC Debt Balance 0Branch of Military Service AIR FORCEGarnishment Being Withheld NO

THE DVA OR YOUR BRANCH OF SERVICE PROVIDED THE FOLLOWING

CRSC SPECIAL MONTHLY COMPENSATION CODE 00UNEMPLOYABLE NODVA DISABILITY % 50COMBAT RELATED DISABILITY % 30PURPLE HEART % 00CRSC START DATE JAN 01, 2004SPECIAL MONTHLY COMPENSATION START DATE

REMARKS

This is your monthly CRSC statement. Please refer to myPay frequently asked questions for additional information about CRSC and this statement.

CRSC statement: at secure “myPay” website for retirees.

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We are covering documents you need

We are NOT covering how to do it or what the law is . . .

But . . . Know the Law!

• NDAA 2017• DFAS Regulation• Howell v. Howell

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See also SILENT PARTNER info-letter, “Guidance for Lawyers: Military Pension Division,” for language acceptable to the retired pay center to use

in pension division orders-

https://www.americanbar.org/groups/family_law/committees/military/

When SM is still serving at time of divorce (i.e, 9 years of marital pension during service but 18 years of total

service at divorce)

Yrs marital mil svc = 8 d= 44.4444%Yrs total mil svc @ divorce 18 c

44.4444% is divisible at rank & high three-year base pay as of date of divorce

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Docs Needed to Divide Military Retirement

• Active Duty• LES (current rank, high-3, pay date)• Personnel Documents to show Basic Entry Service Date (to

determine total years in service)• Promotion Documents : for high 3-years base pay calculations• DD214 (if there were breaks in service)

• Reserve/National Guard• LES• Points Statement• DD214s• NOE

• Retired• RAS• DD 214• DFAS retirement memo• Retirement Application• Retirement Orders 28

•Active Duty Retirement: -Legacy Retirement System-Blended Retirement System***Know the Plan . . Know the Formula***

•Reserve/Guard Retirement: -Search engine: RESERVE RETIREMENT CALCULATOR

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Personnel Records

• Army: 2-1, 2A, Enlisted Record Brief (ERB), Officer Record Brief (ORB), Army Record Brief (ARB)

• Navy/Marines: Electronic Service record (ESR), Officer Data Card (ODC), Performance Summary Record (PSR)

• Air Force: Military Human Resource Record (MHRR)

• Coast Guard: Personnel Data Record (PDR)

• All Services: OMPF (Official Military Personnel File)

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Army ERB

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Reserve & Guard Retirements

32

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Search Engine:KANSAS ARMY NATIONAL GUARD RETIREMENT

INFORMATION HANDBOOK-or-

Army National Guard Information GuideOn Non-Regular Retirement

34

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• Eligibility to put in for retirement• Attainment of 20 “good years” of

Guard/Reserve service• 50 points per year• SBP (Survivor Benefit Plan) options

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• Report of Separation• “discharge papers”

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http://vetrecs.archives.govNational Personnel Records Center 39

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41

RETIREE ACCOUNT STATEMENT

STATEMENT EFFECTIVE DATEDEC 16, 2005

NEW PAY DUE AS OFFEB 01, 2006

SSN123 – 45 – 6789

PLEASE REMEMBER TO NOTIFY DFAS IF YOUR ADDRESS CHANGES

Major John Q. Doe, USAF (Ret.)123 Green StApex, NC 27511-1234

DFAS-CL POINTS OF CONTACT

DEFENSE FINANCE AND ACCONTING SERVICEUS MILITARY RETIREMENT PAYPO BOX 7130 LONDON KY 40742-7130COMMERCIAL (216) 522-5955TOLL FREE 1-800-321-1080TOLL FREE FAX 1-800-469-6559myPAYhttps://myPay.dfas.mil1-877-363-3677

PAY ITEM DESCRIPTION

ITEM OLD NEW ITEM OLD NEW

GROSS PAYVA WAIVERSBP COSTSTAXABLE INCOME

2,746.00591.30179.28

1,975.42

2,746.00473.04179.28

2,093.68

FITWALLOTMENTS/BONDSNET PAY

191.3140.00

1,744.11

209.0540.00

1,844.63

PAYMENT ADDRESS YEAR TO DATE SUMMARY (FOR INFORMATION ONLY)

DIRECT DEPOSIT TAXABLE INCOME: 1,975.42 FEDERAL INCOME TAX WITHHELD: 191.31

TAXES

FEDERAL WITHHOLDING STATUS: SINGLETOTAL EXEMPTIONS: .01FEDERAL INCOME TAX WITHHELD: 209.05

SURVIVOR BENEFIT PLAN (SBP) COVERAGE

SBP COVERAGE TYPE: SPOUSE AND CHILD(REN) ANNUITY BASE AMOUNT: 2750.50SPOUSE COST: 176.78 55% ANNUITY AMOUNT: 1,512.77 CHILD COST: 50 40% ANNUITY AMOUNT: 1,100.20

SPOUSE DOB: 12 DEC 1945CHILD DOB: 13 MAR 1996

THE ANNUITY PAYABLE IS 55% OF YOUR ANNUITY BASE AMOUNT UNTIL YOUR SPOUSE REACHES AGE 62. AT AGE 62, THE ANNUITY MAY BE REDUCED DUE TO SOCIAL SECURITY OFFSET, ORUNDER THE TWO-TIER FORMULA. THAT REDUCTION MAY RESULT IN AN ANNUITY THAT RANGES BETWEEN40% ($1100.20) AND 55% (1512.77) OF THE ANNUITY BASE AMOUNT. THE COMBINATION OF THE SBP ANNUITY AND THE SOCIAL SECURITY BENEFITS WILL PROVIDE TOTAL PAYMENTS FROM DFAS ANDTHE SOCIAL SECURITY ADMINISTRATION OF AT LEAST 55% OF YOUR BASE AMOUNT. THE ACTUALANNUITY PAYABLE IS DEPENDENT ON FACTORS IN EFFECT WHEN THE ANNUITY IS ESTABLISHED.

Gross pay, VA waiver, SBP premium, Taxable Income

42

RETIREE ACCOUNT STATEMENT

STATEMENT EFFECTIVE DATEDEC 16, 2005

NEW PAY DUE AS OFFEB 01, 2006

SSN123 – 45 – 6789

PLEASE REMEMBER TO NOTIFY DFAS IF YOUR ADDRESS CHANGES

Major John Q. Doe, USAF (Ret.)123 Green StApex, NC 27511-1234

DFAS-CL POINTS OF CONTACT

DEFENSE FINANCE AND ACCONTING SERVICEUS MILITARY RETIREMENT PAYPO BOX 7130 LONDON KY 40742-7130COMMERCIAL (216) 522-5955TOLL FREE 1-800-321-1080TOLL FREE FAX 1-800-469-6559myPAYhttps://myPay.dfas.mil1-877-363-3677

PAY ITEM DESCRIPTION

ITEM OLD NEW ITEM OLD NEW

GROSS PAYVA WAIVERSBP COSTSTAXABLE INCOME

2,746.00591.30179.28

1,975.42

2,746.00473.04179.28

2,093.68

FITWALLOTMENTS/BONDSNET PAY

191.3140.00

1,744.11

209.0540.00

1,844.63

PAYMENT ADDRESS YEAR TO DATE SUMMARY (FOR INFORMATION ONLY)

DIRECT DEPOSIT TAXABLE INCOME: 1,975.42 FEDERAL INCOME TAX WITHHELD: 191.31

TAXES

FEDERAL WITHHOLDING STATUS: SINGLETOTAL EXEMPTIONS: .01FEDERAL INCOME TAX WITHHELD: 209.05

SURVIVOR BENEFIT PLAN (SBP) COVERAGE

SBP COVERAGE TYPE: SPOUSE AND CHILD(REN) ANNUITY BASE AMOUNT: 2750.50SPOUSE COST: 176.78 55% ANNUITY AMOUNT: 1,512.77 CHILD COST: 50 40% ANNUITY AMOUNT: 1,100.20

SPOUSE DOB: 12 DEC 1945CHILD DOB: 13 MAR 1996

THE ANNUITY PAYABLE IS 55% OF YOUR ANNUITY BASE AMOUNT UNTIL YOUR SPOUSE REACHES AGE 62. AT AGE 62, THE ANNUITY MAY BE REDUCED DUE TO SOCIAL SECURITY OFFSET, ORUNDER THE TWO-TIER FORMULA. THAT REDUCTION MAY RESULT IN AN ANNUITY THAT RANGES BETWEEN40% ($1100.20) AND 55% (1512.77) OF THE ANNUITY BASE AMOUNT. THE COMBINATION OF THE SBP ANNUITY AND THE SOCIAL SECURITY BENEFITS WILL PROVIDE TOTAL PAYMENTS FROM DFAS ANDTHE SOCIAL SECURITY ADMINISTRATION OF AT LEAST 55% OF YOUR BASE AMOUNT. THE ACTUALANNUITY PAYABLE IS DEPENDENT ON FACTORS IN EFFECT WHEN THE ANNUITY IS ESTABLISHED.

Base amt for SBP; SBP beneficiary DOB

43

Pg. 2 of RAS: “Based on information received from the VA, your CRDP amount is $___.”

CRDP

FORMER SPOUSE PROTECTION ACT DEDUCTIONS

PAYEE AMOUNT

MISCELLANEOUS DEBTS

DEBT TYPE MONTHLY DEDUCTION PRINCIPAL AMOUNT INTEREST AMOUNT ACCUMULATED INTEREST DEBT BALANCE

ARREARS OF PAY BENEFICIARY INFORMATION

YOU HAVE ELECTED ORDER OF PRECEDENCE.. THE FOLLOWING BENEFICIARIES ARE ON RECORD:NAME SHARE RELATIONSHIP

JANE P. DOE .00 WIFE

MESSAGE SECTION

BASED ON INFORMATION RECEIVED FROM THE VA. YOUR CROP AMOUNT IS $283.96.***

DFAS-CL 7220/148 (Rev 03-01)

44

https://mypay.dfas.mil

45

46

Thrift Savings Plan

• Defined contribution plan - - like a 401(k) plan

• Website: www.tsp.gov

• Downloadable booklet

47

48

49

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DD Form 2656•Data for Payment for Retired Personnel

•Beneficiary for unpaid ret’d pay•SBP beneficiary•State tax withholding election• Info on dependents

51

DD Form 2656-1 Former Spouse Election Form

52

• “Deemed election form” for SBP• Must be served on DFAS• Must be accompanied by div. decree and

court order requiring SBP election by member/retiree

• Deadline: 1 year from date of order requiring the above SBP election

53

Guard/Reserve Form for SBP

54

Miscellaneous Documents and Information

Related to Family Law Cases

55

Divorce and Domicile

• Where is a SM domiciled?• Legal residence vs. Home of Record• SCRA [Servicemembers Civil Relief Act]

protections • DD Form 2058 – state tax residence

certificate• “Tax Texans”

56

Custody and Military Personnel –the Family Care Plan

•Army Example: Preliminary Screening [DA Form 7667]

•Counseling Chklist [DA Form 5304]

•Fam. Care Plan [DA Form 5305]•Acceptance as Guardian/Escort [DA Form 5940]

•Power of Atty [DA Form 5841] 57

Request for Educational Records (DoDEA) 58

Military or VA Medical Records

Military Medical Records

•Local Military Hospital Custodian of Records

VA Records

• VA Regional Offices• eBenefits:

https://www.ebenefits.va.gov 59

How to Get the Documents• Through your client

• By cooperation with the other side

• Through discovery

• FOIA Request

• By court order or subpoena 60

PRIVACY ACT RELEASE FORMDATA REQUIRED BY THE PRIVACY ACT OF 1974 (5 U.S.C. 552A). AUTHORITY: Title 5 U.S.C. 552, Title 5 U.S.C. 552a, Title 5 U.S.C. 551, DoD 5400-7-R, and DoD 5200.1-R. PURPOSE: To obtain and maintain information upon which to base a reply or inquiry. ROUTINE USES: Data may be provided under any of the DoD “Blanket Routine Uses” published at http://privacy.defense.gov/notices/. Disclosure: Voluntary; however, if you fail to provide all the requested information DFAS may not be able to fulfill your request in a timely manner.

I authorize the federal government, and any agency or department thereof, to release the following documents to [ATTY NAME, ADDRESS]:

List documents here: ____________________________________________ _____________________________________________________________

Date____________________

Signature ____________________________________ SSN _____________Printed Name_________________________________

Address _______________________________________________________City _______________________________ State___ Zip Code __________Home Telephone _______________ Work Telephone ___________________Date of Birth __________________/________/19___

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SM/Retiree’s payroll info - get from military finance center (DFAS)

with judge-signed subpoena* or a court

order

62

TSP:

Request info directly from

OPM

63

64

Air ForceDFAS Denver Center

6760 E. Irvington PlaceDenver, CO 80279-8000

ArmyDFAS Indianapolis Center

8899 East 56th StreetIndianapolis, IN 46249-0160

Marine CorpsDFAS Kansas City Center

1500 East 95th StreetKansas City, MO 64197-0001

Navy DFAS Cleveland Center

Records Retrieval1240 E. 9th St.

Cleveland, OH 44199-2055

Coast GuardCommanding Officer

Coast Guard Human ResourceService and Information Center

444 S.E. QuincyTopeka, KS 66683-3591

Finance Centers

65

• Guard/Reserve SBP records –not at DFAS until “pay status” [usually age 60]

• Other personnel records

• Obtaining the records:• RTR = “read the regulation!”• Example: AR 27-40, Litigation

66

Business Records

Declaration

[affidavit of records

custodian]

DEPARTMENT OF VETERANS AFFAIRSRegional Office

123 Green StreetBlacksboro, North Carolina

Phone: 919-832-6677

BUSINESS RECORDS DECLARATIONPursuant to 28 U.S.C. § 1746

This is a certification of authenticity of domestic business records pursuant to Federal Rules of Evidence 902 (11).

I, Larry G. West, attest under the penalties of perjury (or criminal punishment for false statement or false attestation) that:

1)I am employed by the United States Department of Veterans Affairs (DVA).

2)My official title is Paralegal.

3)I am a custodian of records for the DVA.

4)Each of the records attached hereto is the original record or a true and accurate duplicate of the original record in the custody of the DVA, and I am a custodian of the attached records.

5)The records attached to this certificate were made at or near the time of the occurrence of the matters set forth.

6)The records attached were made by (or from information transmitted by) a person with knowledge of those matters.

7)Such records were kept in the course of a regularly conducted business activity of the DVA.

8)Such records were made by the DVA as a regular business practice.

The enclosed records are:

Letter to Jacob Harris Stein, XXX-XX-5566, dated April 12, 2010, titled “Your Original VA Disability Rating and Reasons for the Rating” and

Letter to Jacob Harris Stein, XXX-XX-5566, dated June 15, 2012, titled “Your Revised VA Disability Rating and Reasons for the Rating.”

Dated: July 13, 2012

Larry G. WestLarry G. West, Paralegal

Subscribed and sworn to before me this ____ day of ______________, 2012.

________________________________Notary signature My commission expires: ________________________

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General resources for the practitioner:

• NC State Bar: www.nclamp.gov

• ABA Family Law Section: www.abanet.org/family/military

• DFAS: www.dfas.mil

• ARMY RETIREMENT SERVICES:

www.armyg1.army.mil/rso/rso.asp

69

70

https://www.militarylawsection.com

General resources for the practitioner:

• Basic Benefits Website:

http://myarmybenefits.us.army.mil

(health care, calculators, state + fed. –

all branches plus vets)

• VA Benefits: www.ebenefits.va.gov (incl.

on-line briefing for TAP – Transition

Assistance Program)71

Law Offices of Mark E. Sullivan www.ncfamilylaw.com

72

1370 Pantheon WaySuite 110

San Antonio, Texas 78232

210-222-1225

www.laubachlaw.com

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MilitarY Financial docuMentS

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