RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 10 July 2007
DOCKET NUMBER: AR20060013124
I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion, if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that his military records be corrected to show that his election to receive Combat Related Special Compensation (CRSC) was honored and, as a result, that he received CRSC instead of Concurrent Retirement Disability Payment (CRDP) from January 2004.
2. The applicant states that he applied for CRSC on 31 July 2003 because he was informed that benefit was non-divisible and he did not wish to share the benefit with his former wife. In January 2004, he started receiving CRSC benefits. On 27 August 2004, the U.S. Army Physical Disability Agency (USAPDA) CRSC Branch notified him that his request for CRSC was approved, effective 1 January 2004. In May 2006, he was taken to court for division of his military pay (his CRSC check). At that time he discovered that he was receiving CRDP and not CRSC. As a result, the CRDP was attached by his wife.
3. When he submitted inquiries into why he was receiving CRDP and not CRSC, he was told that In CRDP was an automatic entitlement and that CRDP was more beneficial to him.
4. The applicant argues that CRDP was not more beneficial to him since it can be attached by his former wife where CRSC cannot be attached. The applicant also argues that since CRDP was automatically assigned to him in a non-open season, reversing the change should not be limited to a normal open season.
5. The applicant submits his CRSC approval dated 27 August 2004, which granted him a 50 percent CRSC rating effective 1 January 2004. He also submits a letter from the Defense Finance and Accounting Service (DFAS), dated 6 October 2006. In that letter it was stated that effective 1 January 2004, the applicant began receiving monthly CRDP. On 27 August 2004, he was awarded a 50 percent CRSC rating retroactive to 1 January 2004. When he became eligible for both benefits on 27 August 2004, he was automatically assigned the benefit more favorable to him, which was CRDP (higher dollar amount). The DFAS continued that in January 2005 and January 2006, he was sent open season packages to elect either CRSC or CRDP. Since the applicant did not return either packet, his entitlement remained CRDP. (The applicant wrote on this letter that he never received these packages).
CONSIDERATION OF EVIDENCE:
Title 10, US Code, Section 1414 (d), Coordination With Combat-Related Special Compensation, states:
(1) In general. A person who is a qualified retiree under this section and is also an eligible combat-related disabled uniformed services retiree under section 1413a of this title may receive special compensation in accordance with that section or retired pay in accordance with this section, but not both.
(2) Annual open season. The Secretary concerned shall provide for an annual period (referred to as an "open season") during which a person described in paragraph (1) shall have the right to make an election to change from receipt of special compensation in accordance with section 1413a of this title to receipt of retired pay in accordance with this section, or the reverse, as the case may be. Any such election shall be made under regulations prescribed by the Secretary concerned. Such regulations shall provide for the form and manner for making such an election and shall provide for the date as of when such an election shall become effective. In the case of the Secretary of a military department, such regulations shall be subject to approval by the Secretary of Defense.
DISCUSSION AND CONCLUSIONS:
1. Contrary to the applicants contention, he was receiving CRDP in January 2004, not CRSC. He was not approved for CRSC until August 2004. Therefore, he could not have received a CRSC check in January 2004.
2. Award of CRDP is automatic and does not require an application.
3. The DFAS policy to assign the benefits which give a retiree a higher dollar amount (if the retiree is awarded CRSC in the middle of a year he or she is receiving CRDP) would appear to be reasonable.
4. It is unfortunate that the applicants particular circumstances render the lower CRSC dollar amount more advantageous to him. However, the applicant was awarded CRSC on 27 August 2004 and the DFAS stated that he was provided CRDP and CRSC election packages in both January 2005 and January 2006. As such, the applicant would have only received CRDP, after he became eligible for CRSC, for a couple of months before he could elect which benefit to receive. While the applicant states that he was never provided these election packages, without evidence to show the packages were not delivered, the Board must presume regularity, that the applicant was in fact provided the election packages in a timely manner. In this regard, it is noted that the applicant stated that he wasnt aware that he was receiving CRDP until he was taken to court in May 2006.
5. Since there are no provisions to change benefits other than in the yearly open season, there is no basis for granting the applicants request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___sap__ ___eem__ ___kan__ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
__________Kathleen A. Newman_______
CHAIRPERSON
INDEX
CASE ID
AR20060013124
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20070710
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.
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