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Lawrence D. Gorin
Lawrence D. Gorin, Lawyer
Category: Military Law
Satisfied Customers: 1507
Experience:  Military & Family Law. 30+ years experience. USFSPA pension division expertise.
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My husband was a Commanding Offier in the Naval Intelligence

Customer Question

My husband was a Commanding Offier in the Naval Intelligence from 1953 - 1978....He didn't ever receive his Naval pension benefit monthly. He passed away Jan. of 2012....Can I pursue back pension monthly pay as a surviving spouse? My son spoke with a long time friend, and fellow Naval Officer (lower ranked) who did a lot of reserve duty with my husband. He told my son over the phone he receives automatically deposited to his account $1000.00 a month....So, we are looking potentially at a substantial amount of money that wasn't ever paid....Please update, and advise....Thank you!
Submitted: 1 year ago.
Category: Military Law
Expert:  Fran-mod replied 1 year ago.
Hi, I'm a moderator for this topic. I've been working hard to find a professional to assist you right away, but sometimes finding the right professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you. Thank you!
Customer: replied 1 year ago.

Hello Fran: I am sorry for the delay in my response back to you. I just saw your reply from Saturday a few minutes ago - it's 1:20pm PST....By the way, I was looking for an expert legal/lawyer reply via my email - not via justanswer.com.


 


Anyway, I saw several lawyers with military legal background - ie: P Simmons AZ area....He was just one of many....


 


I don't understand based on the aformentioned why such a delay? I paid a deposit = $30.00, and there is a seven (7) day trial period. So far, it's probably been five days already if justanswer.com counts the weekends toward the trial period....


 


By the way, I did find out just over the weekend as a surviving spouse, should be receiving a minimum of 45% of my husband's retirement benefit of $4,550.00 a month upon his (retirement in 1979.) I had stated 1978 earlier, so I stand corrected slightly....


 


I am willing to wait for answer, even though as I said above - I saw several militray lawyer specialists available via justanswer.com....

Expert:  Wendy-Mod replied 1 year ago.
Thank you for your patience. We will continue the search for a professional for you.

Regards,
Wendy
Customer: replied 1 year ago.

Hello Wendy-Mod: I see a lawyer with thirty (30) years experience in Military Law with a "pension" specific expertise via just answer.com by the name of Lawrence D. Gorin....Please put me in contact with him as soon as possible....Thank you!


 


 


 

Expert:  Wendy-Mod replied 1 year ago.
Hello,

I have sent him a message. He should be in touch next time he's online.

Thank you again for your patience.

Regards,
Wendy
Expert:  Lawrence D. Gorin replied 1 year ago.
NEED MORE INFORMATION.......
1. WHY did he not commence receipt of Military Retired Pay (i.e., military pension) upon retirement in 1978, after 25 years of active duty military service? (Seems like a rather unusual situation, by the way.)

2. Was he receiving an VA disability compensation?

3. During the 30+ years from retirement in 1978 and death in 2012. did it not dawn on you and/or husband to investigate, ask questions, and find out WHY he was not getting his Military Retired Pay? (Again, seems like a rather unusual situation.)

LDG
Customer: replied 1 year ago.

Hello Lawrence: I appreciate your response - yes, we agree that the situation related to our husband/father is "rather unusual."Let us try to expalin....Dr. xxxxxxxxxxx was told that Naval records had burned up in a fire, and not available. Because he was supporting a family of six as a Professor of Geology at a University, and was working on his doctorate degree, he just gave up thinking about it. Also, he hated all the tedious minutia of trying to get to the bottom of all this, and the decades just rolled by! By the way, xxxx was never money motivated....another reason he didn't persue this mattter. Now that he has passed away, my mother has less money - the family is motivated to persue this matter agressively. My father was a true military man, very dominant, and this also is an explanation of letting this important matter go. I (the son) in seeing your background, thought you would be a good fit to unravel this matter. We realize that we need help with these particular circumstances, because we agree this situation is unusual, and we also don't know what the proper protocol is for attaining these monies.

 

As a brief addendum, after receiving his doctorate, he taught full time at a University, plus he had a Consulting Company, and did work for major oil companies for many years. In essence, Peter really did think it was hopeless because he was told the Naval records burned up - obviously, someone shamelessly lied. However, my (the son) current research indicates that the US Navy does indeed have a record of his service from 1953 - 1979 honorably discharged with the rank of Commander. I have his US Naval Service Card....

 

 

Best regards,

 

 

 

xxxxxx x. xxxxxx

(xxxxx xxxxx xxxxxxx

 

Expert:  Lawrence D. Gorin replied 1 year ago.
NEED MORE INFORMATION....
Have you contacted the Defense Finance and Accounting Service (DFAS) to explain your circumstances and determine what can now be done? (DFAS is the military's payroll agency.)

Phone

Customer Service Representatives are available Monday through Friday, from 8 a.m. to 5 p.m. Eastern Time. However, Monday is our busiest day, so we recommend calling Tuesday through Friday for shorter wait times.

Toll-free:(NNN) NNN-NNNN(option 1)
Local:(NNN) NNN-NNNN

========================
LDG
Customer: replied 1 year ago.

Hello Lawrence: We appreciate your expedient follow-up again. I/We hadn't ever heard of the (DFAS). Can I as the son do this, or does my mom as the surviving spouse need to call explaining circumstances? Please update, and advise.

 

Also, from your expert lawyer point of view - is my mom owed back Naval retirement pension pay? What about a current monthly pension benefit. I was told that she is due a minimum of 45% of $4,500.00 a month - as the surviving spouse for the rest of her life. Thank you....

 

 

Best regards,

 

 

 

xxxxxxxxx

xxxxxxxxxxxxxx

 

PS - I was told by a retired fellow Naval Commander level military man that information about my mom receiving at a minimum, a monthly Naval pension. I am working on getting his DD214 Retirement Cert....

Expert:  Lawrence D. Gorin replied 1 year ago.
Further Answer....
First, please forgive my delay. I have a rather busy law practice that must take precedence over my participation with JustAnswer.com.

Now, moving on......
DFAS is the payroll agency for the Dept. of Defense. It it the source of active duty military pay as well as retired pay.

What is commonly called a "military pension" is, technically, called "military retired pay" (MRP). MRP does not happen automatically. The servicemember who qualifies for and is eligible to receive MRP must first APPLY to DFAS in order to commence receipt of MRP.

CLICK HERE to see the DFAS webpage outlining the Retirement Application Process.

Also, CLICK HERE to see DD Form 2656, which is the critical form that must be submitted to DFAS by the retirement-eligible servicemember.

MRP commences from when the application process is complete. It is important for retirement-eligible servicemembers to ACT IN A TIMELY manner. Delayed application simply means a loss of MRP that would otherwise be payable. (At least that is my understanding of the process.)

Again, receipt of MRP is not automatic. It must be applied for. Also, MRP that would otherwise be payable had proper and timely application been made does not accrue as a debt owed by the government to the servicemember. If application for MRP is not timely and proper made, it is deemed by the government as being WAIVED (in essence, forfeited). There is no provision of retroactive payment of MRP that could and wold have been paid had timely and proper application been made.

The foregoing is my understanding of how the process works. But, as suggested earlier, CALL DFAS to get this information directly and officially.

Next, it needs to be understood that MRP ends when the retiree dies. There is no provision for any automatic continuation of MRP for the retiree's surviving spouse.

However, the military does provide a life-insurance program known as the Survivor Benefit Plan (SBP) that allows for payment of a survivor's annuity to a designated beneficiary (such as a surviving spouse) following the death of the retiree (and the end of MRP). HOWEVER, SBP coverage is an OPTIONAL component available to a retiring servicemember. It must be "elected" at the time of retiree. It does not happen automatically. There is a cost for such coverage, which is paid by a reduction in the amount of MRP that would otherwise be paid to the retiree.

CLICK HERE for the VA's webpage for information re dependents and survivors.

Now, as to your specific questions:
First, either you or your mother, or anybody else for that matter, can call DFAS and simply make inquiry as to their general procedures and policies, and what if anything can now be done in the circumstances you are described. DFAS will have no problem in answering your questions.

Second, based on the facts you are presenting, I suspect that your mother is not owed back Naval retirement pension pay. Navy "retirement pension pay" is only owed to the Navy servicemember who is eligible for such pay and has make proper and timely application to commence receipt of payments. It is not owed to the servicemember's spouse. The surviving spouse may be entitled to an surviving spouse annuity under the SBP, but only if SBP was elected as part of the retirement process.

Also, while a current monthly MRP ("pension") benefit is payable to military retiree during the retiree's lifetime (assuming timely and proper application was made by the servicemember), there is no current monthly pension benefit after the death of the retiree.

As for your having been told that your mother is entitled to a military pension benefit of a minimum of 45% of $4,500.00 a month as the surviving spouse for the rest of her life, I suggest you check back with the person who gave you that information and get the details as to source and authority to back-up the assertion. (My hunch is that what you were told pertains to a SBP surviving spouse monthly annuity benefit payment, which typically is 55% of the amount of MRP that the retiree was receiving at the time of the retiree's death. But if the retiree did not elect -- and pay for -- SBP coverage, it would not exist.)

Again, call DFAS and inquiry as to what, if anything, can now be done. And let me know what they tell you.

LDG
Lawrence D. Gorin, Lawyer
Category: Military Law
Satisfied Customers: 1507
Experience: Military & Family Law. 30+ years experience. USFSPA pension division expertise.
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