text:
This psalm is of the same nature and scope with six or seven foregoing psalms; they are all filled with David's complaints of the malice of his enemies and of their cursed and cruel designs against him, his prayers and prophecies against them, and his comfort and confidence in God as his God. The first is the language of nature, and may be allowed; the second of a prophetical spirit, looking forward to Christ and the enemies of his kingdom, and therefore not to be drawn into a precedent; the third of grace and a most holy faith, which ought to be imitated by every one of us. In this psalm, I. He prays to God to defend and deliver him from his enemies, representing them as very bad men, barbarous, malicious, and atheistical (v. 1-7). II. He foresees and foretels the destruction of his enemies, which he would give to God the glory of (v. 8–17). As far as it appears that any of the particular enemies of God's people fall under these characters, we may, in singing this psalm, read their doom and foresee their ruin.
To the chief musician, Al-taschith, Michtam of David, when Saul sent and they watched the house to kill him.
I. David prays to be delivered out of the hands of his enemies, and that their cruel designs against him might be defeated (v. 1, 2): "Deliver me from my enemies, O my God! thou art God, and cast deliver me, my God, under whose protection I have put myself; and thou hast promised me to be a God all-sufficient, and therefore, in honour and faithfulness, thou wilt deliver me. Set me on high out of the reach of the power and malice of those that rise up against me, and above the fear of it. Let me be safe, and see myself so, safe and easy, safe and satisfied. O deliver me! and save me.'' He cries out as one ready to perish, and that had his eye to God only for salvation and deliverance. He prays (v. 4), "Awake to help me, take cognizance of my case, behold that with an eye of pity, and exert thy power for my relief.'' Thus the disciples, in the storm, awoke Christ, saying, Master, save us, we perish. And thus earnestly should we pray daily to be defended and delivered form our spiritual enemies, the temptations of Satan, and the corruptions of our own hearts, which war against our spiritual life.
II. He pleads for deliverance. Our God gives us leave not only to pray, but to plead with him, to order our cause before him and to fill our mouth with arguments, not to move him, but to move ourselves. David does so here.
2. He pleads their malice against him, and the imminent danger he was in from them, v. 3. "Their spite is great; they aim at my soul, my life, my better part. They are subtle and very politic: They lie in wait, taking an opportunity to do me a mischief. They are all mighty, men of honour and estates, and interest in court and country. They are in a confederacy; they are united by league, and actually gathered together against me, combined both in consultation and action. They are very ingenious in their contrivances, and very industrious in the prosecution of them (v. 4): They run and prepare themselves, with the utmost speed and fury, to do me a mischief.'' He takes particular notice of the brutish conduct of the messengers that Saul sent to take him (v. 6): "They return at evening from the posts assigned them in the day, to apply themselves to their works of darkness (their night-work, which may well be their day-shame), and then they make a noise like a hound in pursuit of the hare.'' Thus did David's enemies, when they came to take him, raise an out cry against him as a rebel, and traitor, a man not fit to live; with this clamour they went round about the city, to bring a bad reputation upon David, if possible to set the mob against him, at least to prevent their being incensed against them, which otherwise they had reason to fear they would be, so much was David their darling. Thus the persecutors of our Lord Jesus, who are compared to dogs (Ps. 22:16), ran him down with noise; for else they could not have taken him, at least no on the feast-day, for there would have been an uproar among the people. They belch out with their mouth the malice that boils in their hearts, v. 7. Swords are in their lips; that is, reproaches that would my heart with grief (Ps. 42:10), and slanders that stab and wound my reputation. They were continually suggesting that which drew and whetted Saul's sword against him, and the fault is laid upon the false accusers. The sword perhaps would not have been in Saul's hand if it had not been first in their lips.
3. He pleads his own innocency, not as to God (he was never backward to own himself guilty before him), but as to his persecutors;. what they charged him with was utterly false, nor had he ever said or done any thing to deserve such treatment from them (v. 3): "Not for my transgression, nor for my sin, O Lord! thou knowest, who knowest all things.'' And again (v. 4), without my fault. Note, (1.) The innocency of the godly will not secure them from the malignity of the wicked. Those that are harmless like doves, yet, for Christ's sake, are hated of all men, as if they were noxious like serpents, and obnoxious accordingly. (2.) Though our innocency will not secure us from troubles, yet it will greatly support and comfort us under our troubles. The testimony of our conscience for us that we have behaved ourselves well towards those that behave themselves ill towards us will be very much our rejoicing in the day of evil. (3.) If we are conscious to ourselves of our innocency, we may with humble confidence appeal to God and beg of him to plead our injured cause, which he will do in due time.
4. He pleads that his enemies were profane and atheistical, and bolstered themselves up in their enmity to David, with the contempt of God: For who, say they, doth hear? v. 7. Not God himself, Ps. 10:11; 94:7. Note, It is not strange if those regard not what they say who have made themselves believe the God regards not what they say.
III. He refers himself and his cause to the just judgment of God, v. 5. "The Lord, the Judge, be Judge between me and my persecutors.'' In this appeal to God he has an eye to him as the Lord of hosts, that has power to execute judgment, having all creatures, even hosts of angels, at his command; he views him also as the God of Israel, to whom he was, in a peculiar manner, King and Judge, not doubting that he would appear on the behalf of those that were upright, that were Israelites indeed. When Saul's hosts persecuted him, he had recourse to God as the Lord of all hosts; when those maligned him who in spirit were strangers to the commonwealth of Israel he had recourse to God as the God of Israel. He desires (that is, he is very sure) that God will awake to visit all the nations, will make an early and exact enquiry into the controversies and quarrels that are among the children of men; there will be a day of visitation (Isa. 10:3), and to that day David refers himself, with this solemn appeal, Be not merciful to any wicked transgressors. Selah—Mark that. 1. If David had been conscious to himself that he was a wicked transgressor, he would not have expected to find mercy; but, as to his enemies, he would say he was no transgressor at all (v. 3, 4): "Not for my transgression, and therefore thou wilt appear for me.'' As to God, he could say he was no wicked transgressor; for, though he had transgressed, he was a penitent transgressor, and did not obstinately persist in what he had done amiss. 2. He knew his enemies were wicked transgressors, wilful, malicious, and hardened in their transgressions both against God and man, and therefore he sues for justice against them, judgment without mercy. Let not those expect to find mercy who never showed mercy, for such are wicked transgressors.
David here encourages himself, in reference to the threatening power of his enemies, with a pious resolution to wait upon God and a believing expectation that he should yet praise him.
I. He resolves to wait upon God (v. 9): "Because of his strength'' (either the strength of his enemies, the fear of which drove him to God, or because of God's strength, the hope of which drew him to God) "Will I wait upon thee, with a believing dependence upon thee and confidence in thee.'' It is our wisdom and duty, in times of danger and difficulty, to wait upon God; for he is our defence, our high place, in whom we shall be safe. He hopes, 1. That God will be to him a God of mercy (v. 10): "The God of my mercy shall prevent me with the blessings of his goodness and the gifts of his mercy, prevent my fears, prevent my prayers, and be better to me than my own expectations.'' It is very comfortable to us, in prayer, to eye God, not only as the God of mercy, but as the God of our mercy, the author of all good in us and the giver of all good to us. Whatever mercy there is in God, it is laid up for us, and is ready to be laid out upon us. Justly does the psalmist call God's mercy his mercy, for all the blessings of the new covenant are called the sure mercies of David (Isa. 55:3); and they are sure to all the seed. 2. That he will be to his persecutors a God of vengeance. His expectation of this he expresses partly by way of prediction and partly by way of petition, which come all to one; for his prayer that it might be so amounts to a prophecy that it shall be so. Here are several things which he foretels concerning his enemies, or observers, that sought occasions against him and opportunity to do him a mischief, in all which he should see his desire, not a passionate or revengeful desire, but a believing desire upon them, v. 10. (1.) He foresees that God would expose them to scorn, as they had indeed made themselves ridiculous, v. 8. "They think God does not hear them, does not heed them; but thou, O Lord! shalt laugh at them for their folly, to think that he who planted the ear shall not hear, and thou shalt have not them only, but all such other heathenish people that live without God in the world, in derision.'' Note, Atheists and persecutors are worthy to be laughed at and had in derision. See Ps. 2:4; Prov. 1:26; Isa. 37:22. (2.) That God would make them standing monuments of his justice (v. 11): Slay them not; let them not be killed outright, lest my people forget. If the execution be soon done, the impressions of it will not be keep, and therefore will not be durable, but will quickly wear off. Swift destructions startle men for the present, but they are soon forgotten, for which reason he prays that this might be gradual: "Scatter them by thy power, and let them carry about with them, in their wanderings, such tokens of God's displeasure as may spread the notice of their punishment to all parts of the country.'' Thus Cain himself, though a murderer, was not slain, lest the vengeance should be forgotten, but was sentenced to be a fugitive and a vagabond. Note, When we think God's judgments come slowly upon sinners we must conclude that God has wise and holy ends in the gradual proceedings of his wrath. "So scatter them as that they may never again unite to do mischief, bring them down, O Lord, our shield!'' If God has undertaken the protection of his people as their shield, he will doubtless humble and abase all those that fight against them. (3.) That they might be dealt with according to their deserts (v. 12): For the sin of their mouth, even for the words of their lips (for every word they speak has sin in it), let them for this be taken in their pride, even for their cursing others and themselves (a sin Saul was subject to, 1 Sa. 14:28, 44), and lying. Note, There is a great deal of malignity in tongue-sins, more than is commonly thought of. Note, further, Cursing, and lying, and speaking proudly, are some of the worst of the sins of the tongue; and that man is truly miserable whom God deals with according to the deserts of these, making his own tongue to fall on him. (4.) That God would glorify himself, as Israel's God and King, in their destruction (v. 13): "Consume them in wrath, consume them; that is, follow them with one judgment after another, till they be utterly ruined; let them be sensibly, but gradually wasted, that they themselves, while they are in the consuming, may know, and that the standers-by may likewise draw this inference form it, That God ruleth in Jacob unto the ends of the earth.'' Saul and his party think to rule and carry all before them, but they shall be made to know that there is a higher than they, that there is one who does and will overrule them. The design of God's judgments is to convince men that the Lord reigns, that he fulfils his own counsels, gives law to all the creatures, and disposes all things to his own glory, so that the greatest of men are under his check, and he makes what use he pleases of them. He rules in Jacob; for there he keeps his court; there it is known, and his name is great. But he rules to the end of the earth; for all nations are within the territories of his kingdom. He rules to the ends of the earth, even over those that know him not, but he rules for Jacob (so it may be read); he has an eye to the good of his church in the government of the world; the administrations of that government, even to the ends of the earth, are for Jacob his servant's sake and for Israel's his elect, Isa. 45:4. (5.) That he would make their sin their punishment, v. 14, compare v. 6. Their sin was their hunting for David to make a prey of him; their punishment should be that they should be reduced to such extreme poverty that they should hunt about for meat to satisfy their hunger, and should miss of it as they missed of David. Thus they should be, not cut off at once, but scattered (v. 11), and gradually consumed (v. 13); those that die by famine die by inches, and feel themselves die, Lam. 4:9. He foretels that they should be forced to beg their bread from door to door. [1.] That they should do it with the greatest regret and reluctancy imaginable. To beg they are ashamed (which makes it the greater punishment to them), and therefore they do it at evening, when it begins to be dark, that they may not be seen, at the time when other beasts of prey creep forth, Ps. 104:20. [2.] That yet they should be very clamorous and loud in their complaints, which would proceed from a great indignation at their condition, which they cannot in the least degree reconcile themselves to: They shall make a noise like a dog. When they were in quest of David they made a noise like an angry dog snarling and barking; now, when they are in quest of meat, they shall make a noise like a hungry dog howling and wailing. Those that repent of their sins mourn, when in trouble, like doves; those whose hearts are hardened make a noise, when in trouble, like dogs, like a wild bull in a net, full of the fury of the Lord. See Hos. 7:14, They have not cried unto me with their heart when they howled on their beds for corn and wine. [3.] That they should meet with little relief, but the hearts of people should be very much hardened towards them, so that they should go round about the city, and wander up and down for meat (v. 15), and should get nothing but by dint of importunity (according to our marginal reading, If they be not satisfied, they will tarry all night), so that what people do give them is not with good-will, but only to get rid of them, lest by their continual coming they weary them. [4.] That they should be insatiable, which is the greatest misery of all in a poor condition. They are greedy dogs which can never have enough (Isa. 56:11), and they grudge if they be not satisfied. A contented man, if he has not what he would have, yet does not grudge, does not quarrel with Providence, nor fret within himself; but those whose God is their belly, if that be not filled and its appetites gratified, fall out both with God and themselves. It is not poverty, but discontent, that makes a man unhappy.
1. What he would praise God for. (1.) He would praise his power and his mercy; both should be the subject-matter of his song. Power, without mercy, is to be dreaded; mercy, without power, is not what a man can expect much benefit from; but God's power by which he is able to help us, and his mercy by which he is inclined to help us, will justly be the everlasting praise of all the saints. (2.) He would praise him because he had, many a time, and all along, found him his defence and his refuge in the day of trouble. God brings his people into trouble, that they may experience his power and mercy in protecting and sheltering them, and may have occasion to praise him. (3.) He would praise him because he had still a dependence upon him and a confidence in him, as his strength to support him and carry him on in his duty, his defence to keep him safe from evil, and the God of his mercy to make him happy and easy. He that is all this to us is certainly worthy of our best affections, praises, and services.
2. How he would praise God. (1.) He would sing. As that is a natural expression of joy, so it is an instituted ordinance for the exerting and exciting of holy joy and thankfulness. (2.) He would sing aloud, as one much affected with the glory of God, that was not ashamed to own it, and that desired to affect others with it. He will sing of God's power, but he will sing aloud of his mercy; the consideration of that raises his affections more than any thing else. (3.) He would sing aloud in the morning, when his spirits were most fresh and lively. God's compassions are new every morning, and therefore it is fit to begin the day with his praises. (4.) He would sing unto God (v. 17), to his honour and glory, and with him in his eye. As we must direct our prayers to God, so to him we must direct our praises, and must look up, making melody to the Lord.

matches: v. v. v. v. v. v. v. v.


Introduction: SILENT PARTNER is a lawyer-to-lawyer resource for military legal assistance attorneys and civilian lawyers, published by the Military Committee of the American Bar Association’s Family Law Section and the North Carolina State Bar’s military committee. Please send any comments, corrections and suggestions to the address at the end of this document. There are many SILENT PARTNER info-letters on military pension division, the Survivor Benefit Plan and other aspects of military divorce. Just go to www.americanbar.org > Family Law Section > Military Committee (the website of the above ABA committee) or www.nclamp.gov > For Lawyers (the website of the military committee, NC State Bar).
New rules for the division of military retired pay took effect December 23, 2016 for those servicemembers (SMs) who were not yet getting retired pay on a divorce date after 12/23/16. The Frozen Benefit Rule, prescribed in Sec. 641 of the National Defense Authorization Act (NDAA) for 2017 and clarified at Sec. 624 of NDAA 2018, limits the disposable retired pay which can be divided. The new, required method of military pension division involves a hypothetical amount of retired pay, calculated as of the SM had retired on the date of the decree of divorce, dissolution, annulment or legal separation (hereafter divorce*).
This will make a big difference in most case. Thus, for example, even though John Doe might be a master sergeant (E-8) with 28 years of service in the Army when he eventually retires with a monthly pension of $4,000, the retired pay to be divided is fixed at the rank and years of service for John on the date of divorce*, which might be a staff sergeant (E-6) with only 20 years of service, amounting to only $1500 monthly.
Details are found in the several Silent Partner info-letters regarding the Frozen Benefit Rule, which are found at the website of the military committee of the N.C. State Bar, www.nclamp.gov > For Lawyers. The text below will explain specifics regarding the data points required in a pension division document and the amount of “disposable retired pay” which is subject to division. As always in complex areas like military pension division, it’s a good idea to seek the help of a “wingman” for assistance - someone who knows the subject matter and who has handled cases like this before. Don’t go it alone!
First of all, check to see if your case qualifies for Frozen Benefit Rule treatment. Was the judgment of divorce* on or before December 23, 2016? If so, you’re “off the bus” - the Rule doesn’t apply.
If the date of divorce* was after that date, was the military member already receiving retired pay at divorce? If so, then you’re still “off the bus.” In either of these situations, the Frozen Benefit Rule doesn’t apply and you don’t need to bother about the rules and restrictions set out below.
The SM’s years of creditable service.
The military retired pay center, usually DFAS, uses these two data points in the pension division document to measure the SM’s disposable retired pay which can be divided.
Calculation of regular retired pay (i.e., retired pay based on active-duty service years) involves multiplying the SM’s retired pay base by the retired pay multiplier.
The retired pay multiplier for these SMs is 2.5% times the years of creditable service.
The retired pay center uses these data points to calculate the hypothetical retired pay of John Doe as of the date of divorce*. Although the data are required now, the calculations are done by the center when John starts drawing retired pay.
Most family law attorneys have little knowledge of the meaning of these terms and techniques, concepts and calculations. Let’s review what they mean and how to obtain this information.
Let’s say Army Master Sergeant (MSG) John M. Doe is our client. John is on active duty, and we’re trying to obtain his years of creditable service. In most cases, we can ask John and he’ll know the answer.
If there’s any doubt, a quick way to verify this in most cases is to look at the “Pay Date” at the top of John’s LES (Leave and Earnings Statement) to see when he entered this period of military service; it need not be his last LES - one from six months ago will probably suffice. Count the years and months since that date, and then convert the result into years (e.g., “18.5 years,” although “18 years and 6 months” would probably be accepted). Do not include days. An example of a Leave and Earnings Statement is at ATCH 1 below. The Pay Date is shown on the line just below the title of the document.
When there has been a break in service, however, the above calculation won’t work; a break means the start of a new Pay Date on the LES. Pay Date normally refers to the date of initial commissioning or enlistment; it will be updated, however, based on breaks in service (such as AWOL or being discharged and later rejoining the military). One’s Pay Date refers to the date of the most recent start of military duty without a break in service.
If Jake Smith serves in one branch of the military, separates, and then later rejoins the military (whether the same branch or a different one), his DIEMS remains the same, but his Pay Date changes. For example, Jake joins the Navy at 18, serves for two years, and then is discharged at age 20. At age 24, he decides to join the Marine Corps. He completes 18 years of USMC service and then retires at age 42. He is entitled to retired pay because the date he enlisted in the Navy at age 18 is his DIEMS, and his two-year tour of duty counts toward his total time in uniform. His Pay Date, however, will reflect only the date 18 years ago when he went into the Marine Corps; this is because the Pay Date is the most recent period of uninterrupted service. In this example neither Jake’s Pay Date nor his DIEMS would measure accurately his creditable service until the date of divorce - the Pay Date would show too little time (18 years) and the DIEMS would show too much (24 years).
c) If the DIEMS entry is earlier than the Pay Date, however, then there was a break in the SM’s time in the military; information is needed from the SM or his records to find out how much of a gap in time there was (i.e., how much time the member was not in military service creditable toward retirement).
Note that data for years-of-service calculations is not the province of DFAS, although it can release documents from which the calculations may be made, such as the LES. One’s branch of service controls the records which are the primary source of creditable service information (e.g., Human Resources Command at Ft. Knox for the Army). The data is provided to DFAS for entry on the LES.
Let’s suppose that Marine Corps Reserve Major Roberta Roe is the client. In this case we’ll need to get her total retirement points as of the date of divorce*. Each member of the Reserves can get the current points statement from the “personnel portal” of the Reserve Component involved (e.g., U.S. Marine Corps Forces Reserve, New Orleans for Marine Reservists, Air Reserve Personnel Center for Air Force Reserve personnel). National Guard members can get their points statements from the state Guard headquarters. The number of points stated might also require making an estimate if the entry of the appropriate pension division document is in the future. As a Reservist, Major Roe will continue to receive retirement points for weekend drilling, which continues each month during the period leading up to the divorce* (with each two-day weekend counting as four points). Sometimes the client, although a member of the Guard or Reserve, will be on an active-duty tour at the time of the divorce*, and that will affect the calculation of points as well. Active-duty time is shown on the points statement as one point for each day of active duty, within certain limits per year. An example of a retirement points statement is at ATCH 2.
The High-3 pay for John Doe is the average of the highest 36 months of compensation. It involves “base pay,” not other entitlements (such as flight pay, combat pay, or Basic Allowance for Housing). When your client is MSG John Doe, he will usually know the answer for the period of time involved; it’s the most recent three years. In this situation, get his most recent three years of LES’s. If he doesn’t have all of them, have him contact customer service at the pay center (DFAS or Coast Guard) to request that information. The documents from the pay center will usually be a pay extract or pay summary, not actual copies of the LES’s. He can also get his High-3 information from the on-line personnel portal for his branch of service (e.g., Army Knowledge Online).
When requesting documents, John will have to specify what period of time is involved. The pay center will not give him the number or the underlying data responding to a request for “my High-3 pay.” Even though the pay center has the information, the officials there may reply that the computers have not been programmed to provide the data. So John will need to phrase his request in terms such as, “My base pay for each month between June 1, 2015 and June 1, 2018,” if that is his highest 36 months of pay. Once that information is obtained, getting the monthly average on a handheld calculator is pretty simple.
In lieu of obtaining the documents and data from the pay center, John can prepare a spreadsheet, such as a chart in Excel. Such a document - based upon military pay tables found at www.dfas.mil for present and past years, as well as his dates of promotion, if any - will show his rank and his pay for the applicable 36-month period. An example of an Excel chart is at ATCH 3.
Note that the “High-3” does not involve “continuous pay.” That’s not in the statute, 10 U.S.C. § 1407. In rare cases, John might have had a prior period of time in which he received higher pay than at present for several months or for one or two years, due to his being in a higher pay grade. For example, John may have had a higher pay grade previously but was reduced in rank due to misconduct. These situations seldom occur, but they are worth knowing about.
When MSG John Doe is on the other side, discovery is the answer for “High-3” information. The interrogatories would request that he provide the specific months for his highest compensation next preceding the divorce*, including his rank and his years of service for those months, since rank and years of service are how you compute pay. While a document request could ask for the LES’s for those 36 months, it’s unlikely that he will have those documents; he may need to request them from the pay center.
If you are unable to obtain reliable documents from John Doe, you may need to calculate the base pay rate yourself. To do that, you will need to know his date of rank in his current pay grade and have at least one recent LES. Then, using published pay tables, you can ascertain the monthly base pay for each of the highest 36 months (assuming this is the most recent 36 months, which is true over 99% of the time). Keep in mind that the pay for military members increases every two years (i.e., step increases) and also increases on the date of a promotion. Thus there will never be 36 identical months of pay for John.
In Major Roberta Roe’s case, she will also know the usual answer for the period of time involved; it’s the most recent three years. In rare cases Roberta may have had a higher pay grade on active duty but was reduced in rank upon transfer to the Guard or Reserves.
Major Roe’s highest three years of pay is measured on the basis of active-duty pay for an officer with her rank and years of service, not the Marine Corps Reserve pay that she receives for a “drill weekend.” This can be obtained by reviewing her years of creditable service and her pay grade, and then using the military pay tables at www.dfas.mil. The years of service can ordinarily be calculated from the Pay Date data shown on her LES.
What if the “High-3” number is wrong? What if there’s been a mistake in calculating it? What if the SM - who is the one with primary access to this data - fraudulently or carelessly states a much lower number for this data point? This would squash down the hypothetical retired pay that is fixed on the divorce* date. Or what if the spouse, taking advantage of a SM who is unrepresented or who urgently wants a divorce, inserts a higher number in the pension division document? This would have the effect of boosting the hypothetical retired pay which - as disposable retired pay - is what’s divided. Won’t DFAS catch the problem and set it right?
The inconvenient truth is that the correct information about one’s High-3 is in the pay center’s computers. The government officials just haven’t programmed the computers to provide it.
And DFAS also won’t verify the years of service at divorce*. Each branch of service is responsible for correct figures for years of service, not DFAS. Retirement points are, as mentioned above, the province of the Reserve personnel center or the state Guard headquarters.
There are several flaws with this proposed approach. First of all, there’s no such thing as a “standard subpoena” for documents or information. The format, structure and wording of a subpoena directed to DFAS is the same as any other subpoena which is employed for the production of documents. The documents, of course, will vary from case to case. There is no single set that applies to every case.
Second, the subpoena must be signed by a judge from “a court of competent jurisdiction.” For DFAS or another government agency for Army, Navy, Air Force or Marine Corps records, that usually means the court in which the divorce, legal separation suit or other legal action is pending. For the Coast Guard, an agency of the Department of Homeland Security, it means federal district court.
Third, you will need to choose the language you want for the documents which you are requesting. You cannot simply demand from DFAS “copies of all relevant documents regarding John Doe’s pay and allowances since three years ago.” That will certainly produce a rejection, since it’s unclear what is being requested. You need to give specific and detailed information (e.g., “Leave and Earnings Statements, or the data thereon, showing the base pay for John M. Doe, SSN 123-22-3333, for June 1, 2015 through June 1, 2018”).
Fourth, allow enough time for the agency to respond. Four to six weeks may be required. The production of documents will be controlled in most agencies by the “FOIA/PA Office,” that is, the office which responds to requests for information under the Freedom of Information Act and the Privacy Act. If you want to check on the status of documents, that’s the place to contact.
You may also want to read over the rules regarding the disclosure of information pursuant to court process (that is, a court order or a judge-signed subpoena). Each of the agencies has such rules, and it doesn’t take long to find the location (e.g., the release of information regarding DFAS and retired pay is governed by Chapter 18 of Volume 7B of the DoDFMR).
There are also info-sheets and FAQs on-line to review. For example, the addresses and phone/fax contact information for requests for information at DFAS are found at the DFAS website, https://www.dfas.mil > Freedom of Information Act > How to Submit a FOIA Request.
Finally you will need to decide if you want only the records and data, or whether you will need the associated documents which would be necessary for introduction of the evidence into court. You may need to review your state rules for the business records exception or the public records exception to the hearsay rule. Will you need an affidavit from the records custodian? A declaration from an official as to the public records exception? If so, be prepared to draft the document yourself; the agency doesn’t have a pile of affidavits and declarations on file to meet the requirements of each state. You may need a phone call with the officials in the records office!
Going through the above steps may take time. And this may wind up putting off the divorce*. But the spouse’s attorney should remember that the Frozen Benefit is measured by the hypothetical retired pay of the SM at divorce*. Thus the longer the divorce* is delayed, the higher his or her years of service will be. Perhaps there will even be a promotion in the interim, or a Congressional pay raise! If you represent the spouse, resist any attempt to bifurcate the divorce or dissolution and the entry of the pension division document. This would allow, in some cases, a SM who is eager to be single again to obtain a divorce which would freeze the benefit, and yet hold off on producing the data and records necessary for the pension division document. The two must be handled at the same time, goes the argument; Congress, federal law and military regulations have made the two inseparable. The retired pay center must have the two required data points as of the date of divorce*. If the SM cannot provide these data points, then the divorce* should be postponed, or else there will never be any incentive for production of the information.
The attorney for the spouse will need pay close attention to the marital fraction, which in most states is marital pension service divided by total pension service. Since the retired pay that is divided is fixed (except for COLAs, or cost-of-living adjustments) on the date of divorce, the court order needs to contain a fixed denominator, ending on the date of the divorce or the decree of legal separation. This may run contrary to applicable state rules (e.g., the Majauskas formula in New York, the Bangs case in Maryland or the Seifert formula in North Carolina), but fixing the denominator is the only way to provide for fair division of a benefit which is fixed on the divorce date; anything else would constitute a double dilution of the spouse’s share of the pension. For further information, see the several Silent Partner info-letters found at the website of the military committee of the N.C. State Bar, www.nclamp.gov > For Lawyers, and see Note 1 above as to the problem in the DFAS sample order language.
 You can also find explanations and information at the DFAS website, https://www.dfas.mil > Garnishment > Notice of Statutory Change, and there is also sample order language to use in complying with the Rule. Lawyers should take care in using the sample order language. If the attorney provides the information required in the sample, then the order will be approved. The key, according to one retired pay center attorney, is ensuring that the lawyers know and understand what is included in the sample order - “Do you know what this means and how it affects your client before you fill it out?” To illustrate, the sample order contains language setting the denominator of the marital or coverture fraction as the total military service of the SM. Yet, as pointed out at the end of this paper, that is not only illogical (when dividing a benefit that’s fixed on the date of divorce*), it’s also unfair and mathematically absurd. It should be fixed as of the divorce* date.
 The pension division document is a decree of divorce, dissolution, legal separation or annulment, or a settlement agreement incorporated therein. 10 U.S.C. § 1408(a)(2).
 “Disposable retired pay” is that pay which may be divided between the parties in a divorce or separation case. 10 U.S.C. § 1408(a)(4).
 Attributed to Ken Kesey, as quoted in Tom Wolfe’s The Electric Kool-Aid Acid Test.
 See §2908 of Chapter 29, Vol. 7B, Department of Defense Financial Management Regulation (DoDFMR).
 The basic language and the methods of division are found in the Silent Partner, Getting Military Pension Orders Honored by the Retired Pay Center. Further information is in Military Pension Division: Guidance for Lawyers.
 The retired pay base for those entering military service before 8 September 1980 is the individual’s final pay, but there are almost none of these SMs still serving today.
 See DoDFMR, Vol. 7B, Ch. 29, ¶290803. In the case of a member of the Reserves or National Guard, the years of creditable service is replaced with “total number of retirement points” as of the date of divorce*.
 Retired pay orders for the Army, Navy, Air Force, Marine Corps, as well as the National Guard and Reserves (known as the RC, or Reserve Component), are processed by the Defense Finance and Accounting Service (DFAS), located in Cleveland, Ohio. Pension orders for members of the U.S. Coast Guard and Coast Guard Reserve are sent to the USCG Pay and Personnel Center (https://www.uscg.mil/ppc/), located in Topeka, Kansas. Orders for the commissioned corps of the Public Health Service and the National Oceanic and Atmospheric Administration are also serviced by the Coast Guard PPC.
 Chapter 71 of Title 10, U.S. Code.
 This is determined by the DIEMS, as explained below.
 10 U.S.C. § 1409. For RC members, the “years of service” used in calculating retired pay would be determined by dividing the total number of points by 360. 10 U.S.C. § 12733.
 Note that military numbering format is used for the date (e.g., 980601 means June 1, 1998).
 Pay Date means the “Pay Entry Base Date” or PEBD. The PEBD is sometimes called the Basic Pay Entry Date.
 See DoDFMR, Vol 7A, Ch. 1, ¶010201.
 DIEMS is also referred to as the Date of Initial Entry into Uniformed Service, or DIEUS.
 One’s DIEMS is set on the first date of joining any military service, rather than completion of any military preliminary program. For example, SMs who first join the National Guard or Reserves and the later transfer to the active component count their DIEMS from the date that they joined the Guard or Reserves. Those individuals who are receiving a scholarship through ROTC or who enter a service academy (e.g., West Point) will start their DIEMS from the date of enlisting rather than the date of graduation. Military service spans the length of time from initial entry into military service (e.g., the date of one’s enlistment) until retirement or discharge. Thus if Roberta Roe signed up for the Marine Corps in January 2018 but did not report for active duty until June 2018, her DIEMS is the date that she first signed up or enlisted (i.e., January 2018).
 If you learn that John was reduced in rank for punitive reasons, you will need to research the criteria set forth in 10 U.S. Code § 1407(f) and DoDFMR, Vol. 7B, Ch. 3, ¶ 030212 to determine whether the High-3 average is required by the specific facts of your case.
 Retired pay for Reservists is covered in Chapter 1223 of Title 10, U.S. Code.
 The information in this paragraph comes from an e-mail from a senior attorney at DFAS to the author (December 19, 2017), Subject: “from Sullivan -- Questions, Clarifications” (on file with the author).
 You can also find explanations and information at the DFAS website, www.dfas.mil > Garnishment > Notice of Statutory Change, and there is also sample order language to use in complying with the Rule. Lawyers should take care in using the sample order language. If the attorney provides the information required in the sample, then the order will be approved. The key, according to one retired pay center attorney, is ensuring that the lawyers knows and understands what is included in the sample order - “Do you know what this means and how it affects your client before you fill it out?” To illustrate, the sample order contains language setting the denominator of the marital or coverture fraction as the total military service of the SM. Yet, as pointed out at the end of this paper, that is not only illogical (when dividing a benefit that’s fixed on the date of divorce*), it’s also unfair and mathematically absurd. It should be fixed as of the divorce* date.
 See DoDFMR, Vol. 7B, Ch. 29, ¶290803. In the case of a member of the Reserves or National Guard, the years of creditable service is replaced with “total number of retirement points” as of the date of the decree of divorce*.
 Retired pay orders for the Army, Navy, Air Force, Marine Corps, as well as the National Guard and Reserves (known as the RC, or Reserve Component), are processed by the Defense Finance and Accounting Service (DFAS), located in Cleveland, Ohio. Pension orders for members of the U.S. Coast Guard and Coast Guard Reserve are sent to the USCG Pay and Personnel Center (http://www.uscg.mil/ppc/), located in Topeka, Kansas. Orders for the commissioned corps of the Public Health Service and the National Oceanic and Atmospheric Administration are also serviced by the Coast Guard PPC.


text:
On our way to reaching these conclusions, we address several issues pertaining to sealing orders that have remained unsettled, including the reach of California Rules of Court, rules 2.550 and 2.551, and media participation in sealing hearings. We also discuss tools available to the trial courts to deal with abusive litigation tactics impacting the handling of sealing issues. Indeed, we are appalled at the burden the parties foisted on the trial court here and view this case as a companion to the decision of our brethren in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 289–290, decrying unnecessary and oppressive summary judgment tactics.
"Nearly all jurisdictions, including California, have long recognized a common law right of access to public documents, including court records." Slip op., at 8. "More recently, many jurisdictions, including California, have recognized a constitutional right of access to certain court documents grounded in the First Amendment." Slip op., at 9. "Not all documents submitted or filed by the parties, however, fall within the ambit of the constitutional right of access. NBC Subsidiary hastened to add the courts have held 'the First Amendment does not compel public access to discovery materials that are neither used at trial nor submitted as a basis for adjudication.'" Slip op., at 10. "In response to NBC Subsidiary, the Judicial Council promulgated 'the sealed records rules,' rules 2.550, 2.551." Slip op., at 11.
Defendants maintain Mercury sets forth a bright-line standard: confidential discovery material merely filed (or, more accurately, lodged) with the court, but not actually “considered or relied on” by the court in connection with the basis on which it rules, is not “submitted as a basis for adjudication” and, thus, is not subject to the sealed records rules. We do not agree Mercury can or should be boiled down to such a limited view.
Slip op., at 21. Instead, the Court held that by "submitting" material for adjudication of (non-discovery) pre-trial motions, the submitting party triggered application of the sealing rules: "defendants’ narrow construction would necessarily mean sealing decisions would be made after-the-fact—that is, after the trial court issues its substantive ruling—because only then would the ground or grounds on which the court rules be known." Slip op., at 23.
The problem is two-fold—parties who fail to exercise any discipline as to the confidential documents with which they inundate the courts, and parties who indiscriminately insist every document satisfies the rigorous requirements of the sealed records rules. This case exemplifies both.
Slip op., at 26-27 (footnotes omitted). The Court encouraged trial courts to sanction parties for abuses or strike improper material to curb such abuses.
A party seeking to have records sealed under the sealed records rules must make an evidentiary showing sufficient to support the findings required by those rules. (Rule 2.551(b)(1).) While “conclusory or otherwise unpersuasive” declarations that parrot statutory or rule-based requirements are generally inadequate (Providian, 96 Cal.App.4th at p. 301), the privacy interest in some documents, like medical records, is so apparent a declaration is not required (Oiye, supra, 211 Cal.App.4th at p. 1070).
Slip op., at 29. The balance of the opinion, nearly 30 pages, sets forth the Court's analysis of the propriety of the sealing order for specific documents. In many instances, the Court held that either a small portion of a long document should have been sealed or the entire document should have been stricken.
What procedures must a Court follow when a plaintiff settles, leaving a "headless" putative class action?
I've faced a species of this issue myself. But it turns out that the answer to this question involves more potential twists and turns than one might first believe. Seems there's more than one way to skin this headless cat. And, in a most interesting twist, the appellate division tackling this question is very same division that decided Parris v. Superior Court, 109 Cal. App. 4th 285 (2003) [pre-certification communications with class members], Belaire-West Landscape, Inc. v. Superior Court, 149 Cal. App. 4th 554 (2007) [discovery of putative class member identity and contact information], and Lee v. Dynamex, Inc., 166 Cal. App. 4th 1325 (2008) [discovery of putative class member identity and contact information], so one might say that this division has a certain expertise regarding this prickly area.
In Pirjada v. Superior Court (December 12, 2011), the Court of Appeal (Second Appellate District, Division Seven) issued an order to show cause but ultimately denied the petition for a writ of mandate brought by the plaintiff following the denial of a discovery motion. The plaintiff settled his individual claim through direct negotiations with defendant's CEO. The trial court granted leave to amend the complaint to name a new class representative but denied the motion to compel precertification discovery to identify a suitable class representative.
What will ultimately happen in this case remains unclear. But this opinion does identify key decisions that might have changed the result, though that is hard to say with certainty.
The Court began its discussion by restating existing standards. First, class member rights are protected, even pre-certification. Second, court approval is not needed to communicate with putative class members, but when a court's assistance is solicited, a court can consider the potential for abuse. Third, class member contact information is "generally discoverable." Fourth, lead plaintiffs, who are unqualified to serve as a class representative may, "in a proper case," move for discovery to find a new representative. However, the Court also noted that precertification discovery is not a matter of absolute right.
Next, citing La Sala v. American Savings & Loan Assn., 5 Cal. 3d 864 (1971) and Kagan v. Gibraltar Sav. & Loan Assn., 35 Cal. 3d 582 (1984) (disapproved in part on another ground in Meyer v. Sprint Spectrum L.P., 45 Cal.4th 634 (2009)), the Court emphasized the trial court's obligation, as also stated in Rule 3.770, to consider carefully any request to dismiss a class action and evaluate whether notice is necessary.
Then, after noting that the standard of review is the abuse of discretion standard, the Court explained why the writ must be denied. Petitioner first argued, as a matter of discovery law, that because defendant failed to respond to document requests, it waived any objection. Absent a finding that the failure was the result of mistake, inadvertence or excusable neglect, Petitioner argued that it was an abuse of discretion to deny the motion to compel. Second, as a matter of the procedural law governing class actions, Petitioner argued that the court abused its discretion in declining to authorize notice to potential class members about the need for a substitute representative. The Court found the first contention to be incorrect and the second premature.
Outside the context of representative and class actions it may well be, as Pacific National observes, “a matter of common knowledge and common sense” that once a plaintiff settles his or her case any discovery responses not yet due no longer need to be served. Because the lawsuit against Pacific National was filed as a class action, however, and the individual settlement with Pirjada was made without the participation or consent of his lawyer, the experienced employment law attorneys representing Pacific National should have either objected to the still-outstanding discovery as moot, moved for a protective order or taken steps to ensure that the settlement agreement between their client and Pirjada included a provision withdrawing any remaining discovery requests.
Although the court's decision to deny Westrup Klick's motion for notice to the class was based largely on a distinction between consumer and employee class actions, a distinction we implicitly rejected in Belaire-West Landscape, Inc. v. Superior Court, supra, 149 Cal.App.4th 554, the propriety of that ruling is not before us. Westrup Klick did not seek writ review of the court's May 26, 2011 order. Instead, it elected to proceed by way of a motion to compel.
Slip op., at 13. The Court then concluded that the trial court's decision to deny the motion to compel after giving time to find a new representative was not arbitrary or capricious.
Whether or not the superior court's initial decision not to notify potential class members that Pirjada now lacks standing to represent the class was correct, the court will necessarily revisit that question when it hears its order to show cause regarding dismissal. Counsel's declaration in support of the petition for writ of mandate indicates a new class representative cannot be identified by the informal means authorized in Parris, supra, 109 Cal.App.4th 285, and discussed by the superior court during the May 26, 2011 hearing. Assuming that remains the case, Westrup Klick will have an opportunity to demonstrate to the court that some form of notice is required to avoid prejudice to absent class members. It would be inappropriate for us to prejudge the outcome of that hearing or to restrict the superior court's discretion by attempting to outline the factors it should weigh in deciding how to comply with the requirements of La Sala, Kagan and Rule 3.770.
Slip op., at 14-15. Riiiiiight. Good thing they didn't give the trial court a look at their cards.
So now you know, at a minimum, that when the representative suddenly hits the eject button, class counsel needs to walk carefully through the dismissal process so as to seek the best possible methods for locating replacement representatives and/or obtaining notice to the putative class.
United States Chief Magistrate Judge Maria-Elena James is on a roll with the class member contact information discovery orders. In Currie-White v. Blockbuster, Inc., 2010 WL 1526314 (N.D.Cal. Apr 15, 2010), Magistrate Judge James Ordered defendant to produce class member contact information, subject to certain modifications to a pre-existing protective order in the case. The interesting additional tidbit in this case is that it is described as a "class action against Defendant under the Labor Code Private Attorneys General Act of 2004, Cal. Labor Code §§ 2698, et seq." Moving to certify PAGA-based penalty claims certainly eliminates all the uncertainty about PAGA-based representative actions.
United States Chief Magistrate Judge Maria-Elena James, as if predicting the very contents of my April 21, 2010 Daily Journal article, ordered Defendants AT & T Mobility LLC, New Cingular Wireless PCS LCC, and New Cingular Wireless Services, Inc. to produce the contact information for thousands of customers that had complained after incurring international roaming charges without first issuing a privacy notice. McArdle v. AT & T Mobility LLC, 2010 WL 1532334 (N.D.Cal. Apr 16, 2010).
As to providing a written notice to the customers, the Court finds such notice unnecessary. First, Pioneer does not impose a notice requirement. Second, notice would make no sense here, as witnesses cannot choose to “opt out” of civil discovery. Tierno v. Rite Aid Corp., 2008 WL 3287035, at *3 (N.D.Cal.2008). “Generally, witnesses are not permitted to decline to participate in civil discovery, even when the information sought from them is personal or private.” Puerto v. Superior Court, 158 Cal.App.4th at 1242, 1256-57 (2008). The Court notes that the minimal information Plaintiff requests is indeed contemplated under the Federal Rules of Civil Procedure as basic to the discovery process. Specifically, Rule 26(a)(1)(A) requires each party to disclose before formal discovery begins “the names, addresses and telephone numbers of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses.” Here, many of Defendants' complaining customers may be considered percipient witnesses to the relevant issue - international-roaming charges, and could therefore be considered persons having discoverable knowledge and proper subjects of discovery.
Slip op., at 4; see also, Boo-ya, at page bite me. Defendants were given 14 days to provide the contact information.
“Generally, witnesses are not permitted to decline to participate in civil discovery, even when the information sought from them is personal or private.” Yes. Witnesses don't get to opt-out of being witnesses.
The 2010 Labor and Employment Law Symposium provides practical advice and cutting-edge panel discussions on labor and employment law issues of critical importance to attorneys, judges, neutrals, government practitioners, union representatives, in-house counsel, and human resource professionals. The Symposium provides a unique intellectual experience allowing the panelists, all of whom are recognized experts in their fields, to share new perspectives, ideas and information. Each panel discussion covers opposing viewpoints, interpretations and strategies, and will encourage audience questions and participation.
I will be speaking on the panel entitled "20 Tips for Successful Navigation of e-Discovery Requirements," with Moderator Angela Robledo, Hon. Carl J. West, and Heather Morgan.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v.