                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia


MARY K. KEOUGH, A/K/A
 MARY S. PELLETTIERI
                                         MEMORANDUM OPINION * BY
v.   Record No. 2140-96-4              JUDGE JAMES W. BENTON, JR.
                                              MAY 13, 1997
FRANCIS P. KEOUGH


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                       F. Bruce Bach, Judge
           Robert B. Machen for appellant.

           Ann W. Mische (Byrd, Mische, Bevis, Bowen,
           Joseph & O'Connor, P.C., on brief), for
           appellee.



      Mary Keough Pellettieri appeals from an order determining

her interest in the military retirement pay received by her

former husband, Francis P. Keough.   Pellettieri argues that the

trial judge erred in (1) miscalculating the portion of Keough's

retirement pay to which she is entitled, (2) ruling that any

amount of retirement benefits waived by Keough in order to

receive disability benefits should be subtracted from his gross

retirement pay before determining her monetary share, and (3)

ruling that Veterans Administration (VA) disability benefits are

"disability benefits" for purposes of determining the parties'

shares of Keough's retirement pay pursuant to the consent order.

 For the reasons that follow, we affirm.

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                                  I.

       In the parties' final decree of divorce, the trial judge

awarded Pellettieri a lump sum of Keough's military retirement

pay, to be paid in monthly installments equal to fifty percent of

Keough's pay until the lump sum amount was satisfied.

Pellettieri appealed the decree and argued that the trial judge

erred by valuing the pension as of the date of the 1987 divorce

decree.   This Court agreed with her argument and remanded the

case for valuation of the pension as of the date of the

evidentiary hearing.   Following that appeal and based upon the

parties' agreement, the trial judge entered a consent order in

July 1990 regarding Pellettieri's share of Keough's retirement

pay.
       On November 14, 1994, Pellettieri filed a motion seeking

clarification of the July 1990 order.   Following an evidentiary

hearing, the trial judge entered a final order clarifying the

July 1990 order.   This is an appeal from that order.

                                  II.

       In her brief, Pellettieri argued that the trial judge erred

in his calculation of her share of Keough's disability benefits.

At oral argument, however, Pellettieri's counsel acknowledged

that the argument was based on a mathematical error and withdrew

this argument.   We agree that the briefs demonstrate that

Pellettieri's calculation was erroneous.   Accordingly, we need

not address this issue further.




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                                III.

     Pellettieri also argues that the trial judge erred in

reducing the amount of Keough's gross retirement pay by the

amount of the disability benefits Keough received.     We disagree.

     The evidence proved that Keough retired from military

service in 1993.    In August 1994, the VA authorized payment of

disability compensation to Keough.      In order to receive

disability benefits, Keough had to waive an equivalent amount of

his retirement pay.
     The parties' agreement, which was later incorporated into a

consent order, stated the following:
             [Pellettieri] shall have an interest in
          the marital portion of [Keough's] monthly
          military pension (minus and exclusive of
          disability payments) as set out in the
          following formula:

                (18 years divided by years of actual
                service) times 50% times the following
                figure: the gross retired monthly
                military pay in an amount that would
                have been paid if [Keough] had retired
                on December 5, 1984 (i.e., $23,336 per
                annum or $1,944.67 per month), less (18
                years divided by years of actual service
                times 50% of disability payments).


(Emphasis added.)

     In the order Pellettieri appealed from, the trial judge used

the actual years of service and set forth the following formula

for computing Pellettieri's share of Keough's retirement

payments:   "Twenty-nine percent (29%) of the gross retired

monthly military entitlements, less twenty-nine percent (29%) of




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the monthly disability payment."     The parties agree that

twenty-nine percent is the correct proportion.      Furthermore, the

parties' agreement, as reflected in the consent order,

unambiguously requires a reduction of the gross retirement pay by

the disability payments received.

        Citing Bullis v. Bullis, 22 Va. App. 24, 467 S.E.2d 830

(1996), Pellettieri argues that no disability payments should be

used in the calculation to reduce her share of Keough's

retirement pay.     She contends that because Keough did not have a

disability rating at the time of his retirement, Bullis bars the
use of disability payments to reduce her share of Keough's

retirement payments.     She misconstrues Bullis.   In Bullis, the

appellant argued that none of his retirement pay was subject to

division on divorce.      See id. at 34-35, 467 S.E.2d at 835-36.

Appellant based his argument on a definition of "disposable

retired pay" contained in the original Uniformed Services Former

Spouses' Protection Act (USFSPA), which was later amended in

1986.     See id.   Under the original version of USFSPA, if a spouse

received any Chapter 61 disability benefits, all of that spouse's

retirement pay was exempted from division at divorce.      See id. at

35-36, 467 S.E.2d at 836.

        In discussing the statutory changes implemented by Congress

in the amended USFSPA, this Court stated:
             The amended version of the USFSPA
          therefore exempts only that portion of
          Chapter 61 benefits which corresponds to the
          retiree's disability percentage rating at the
          time of retirement. If, for example, a



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           service member retires with 60% disability
           under Chapter 61, then 60% of the member's
           retirement benefits are excluded from the
           definition of "disposable retired pay." The
           remaining 40% of the member's benefits may be
           judicially apportioned under state community
           property laws.


Id. at 36, 467 S.E.2d at 836.    Contrary to Pellettieri's

assertion, the discussion in that passage was not a ruling that

any disability rating that occurs after the spouse's retirement

is precluded from consideration.    The paragraph, read as a whole,

highlights the exemption provision of the amended USFSPA and

notes that under the amended statute, if a spouse receives a

partial disability rating, only a portion of the spouse's

military retirement pay is exempt from division at divorce.       See

id.

      Moreover, the discussion in Bullis related to a reduction in

"disposable retired pay" under 10 U.S.C. § 1408(a)(4)(C) (1994).

 See Bullis, 22 Va. App. at 33, 467 S.E.2d at 835.    Subsection C

applies to service members who are retired due to their

disability and are entitled to receive "retired pay" under

Chapter 61.   See 10 U.S.C. § 1408(a)(4)(C) (1994); 10 U.S.C.

§§ 1201-1221 (1994) ("Chapter 61 - Retirement or Separation for

Physical Disability").

      In this case, on the other hand, Keough was already retired

before his disability was determined.    He received disability

payments pursuant to Title 38.     See 38 U.S.C. §§ 1110, 1131

(1994).   Thus, 10 U.S.C. § 1408(a)(4)(B) (1994), which references



                                 - 5 -
Title 38, would apply to this case.    Therefore, the discussion of

subsection C in Bullis does not apply to Keough's retirement pay.

     We hold that Pellettieri's assertion -- that any disability

payments received pursuant to a disability rating that arises

after the service member's retirement are precluded from

consideration when dividing the retirement pay -- is without

merit.   Accordingly, the trial judge's order is not plainly

wrong.
                                IV.

     Pellettieri next argues that the trial judge erred in

concluding that the term "disability payments," contained in the

parties' agreement and the consent order, included Keough's VA

disability benefits.   We disagree.

     The term "disability" is defined as a "lack . . . of

physical, intellectual, or emotional capacity or fitness."

Webster's Third New International Dictionary 642 (1981).     Indeed,

the federal statutory authority for providing Keough's benefits

states that the benefits are to cover "disability resulting from

personal injury."   38 U.S.C. § 1110 (1994) (injury suffered

during wartime); 38 U.S.C. § 1131 (1994) (injury suffered during

peacetime).   Moreover, the evidence reveals that the Department

of Veterans Affairs awarded Keough "service-connected disability

compensation" for cervical disc syndrome, degenerative arthritis

to the right hip, lumbosacral strain, mild asthma, and status

post fracture of the left wrist.   Because those ailments impaired



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Keough's physical fitness, the plain terms of the order dictate

that the VA benefits were included within the term "disability

benefits."

     For these reasons, the judgment is affirmed.

                                                    Affirmed.




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