IN THE CASE OF:	  

	BOARD DATE:	  26 June 2008

	DOCKET NUMBER:  AR20080004510 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that he be paid Special Compensation for the Severely Disabled (SCSD).

2.  The applicant states, in effect, that he is entitled to SCSD because he is 100 percent severely disabled and he is retired from the Army.  His congressman was informed that he was not eligible for SCSD because he did not have 20 years of service.  He states that retirees who were receiving retired pay for physical disability under Title 10, United States Code, Chapter 61, were included by an amendment to the law.

3.  The applicant provides a supplemental letter; a letter from the Defense Finance and Accounting Service (DFAS), Arlington, Virginia, dated 15 October 2002; an Interim Change to Department of Defense Financial Management Regulation (DoDFMR), Volume 7B; a letter from DFAS, Kansas City, Missouri, dated 12 November 2004; and information regarding replacement of the SCSD program.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 25 September 1979.  

3.  Department of the Army, U.S. Army Military Personnel Center, Alexandria, Virginia, Orders Number D29-2, dated 10 February 1983, show the applicant would be released from assignment and duty by reason of physical disability (schizophrenia) on 17 February 1983.  These orders show that on 18 February 1983, he would be placed on the Temporary Disability Retired List (TDRL) with a 70 percent disability rating in the rank of private first class.  

4.  The applicant was released from active duty on 17 February 1983 under the provisions of Title 10, United States Code, Section 1202 by reason of temporary physical disability.  He had completed 3 years, 4 months, and 23 days of active military service.  Five years later, without having undergone any TDRL reevaluations, he was removed from the TDRL without entitlement to benefits.

5.  On 7 August 1996, the ABCMR recommended that the applicant’s records be corrected by:

	a.  showing that the “action separating him from active duty” on 18 February 1988 is void and of no force or effect;

	b.  showing that on 18 February 1988 his disabilities were determined to be permanent and rated 70 percent disabling, and that he was removed from TDRL status on that date; and

	c.  showing that effective 19 February 1988 he was retired in the highest grade satisfactorily held within the meaning of Title 10, United States Code, sections 1201 and 1372.

6.  Public Law 106-65, dated 5 October 1999, added section 1413 to Title 10, U.S. Code.  It provides special compensation ($100, $200, or $300 per month if the qualifying service-connected disability is rated as 70 or 80 percent, 90 percent or 100 percent, respectively) for certain severely disabled retirees.  An eligible member is a retired member who is not retired for disability, is in a retired status, and has 20 or more years of service for purposes of computing retired pay.  The law was later amended to provide this special compensation to delete the requirement to have not been retired for disability.  The amendment was effective on 1 October 2001 and shall apply to months that begin on or after that date.  No benefit may be paid under this section to any person by reason of the amendment for any period before that date.  

7.  The Fiscal Year 2004 National Defense Authorization Act repealed the SCSD program and provided for phased-in restoration of the retired pay deducted from the accounts of military retirees because of their receipt of VA compensation.  Concurrent Retirement and Disability Payments (CRDP) applies to all retirees with VA-rated, service-connected disability of 50 percent or higher but does not apply to disability retirees with less than 20 years of service.  The phased-in restoration began 1 January 2004.

8.  The National Defense Authorization Act for Fiscal Year 2003 granted a special payment to certain disabled retirees - Combat Related Special Compensation (CRSC).  CRSC is payable to certain disabled retirees who have at least 20 years of active duty or a combination of active duty and Reserve points equaling 20 years of full-time active duty.  Those retired for disability must still have completed at least 20 years of service in order to meet the length-of-service requirements.  Compensation is paid for combat-related disabilities, i.e., those incurred in combat, in a training exercise, or in the performance of hazardous duty.  Members retired under the temporary early retirement authority are not eligible unless the member has been recalled to active duty long enough to accumulate 20 years or more of service.  

9.  Until certain provisions of the law were changed in fiscal year 2004, a common misconception was that veterans could receive both a military retirement for physical unfitness and a VA disability pension.  Under the law prior to 2004, a veteran could only be compensated once for a disability.  If a veteran was receiving a VA disability pension and the Board corrected the records to show the veteran was retired for physical unfitness, the veteran would have had to have chosen between the VA pension and military retirement.  The new law does not apply to disability retirees with less than 20 years of service and retirees who have combined their military time and civil service time to qualify for a civil service retirement.  It does apply to those retired under Temporary Early Retirement Authority (TERA).  

DISCUSSION AND CONCLUSIONS:

1.  Orders show the applicant was released from active duty on 17 February 1983 due to physical disability and was placed on the TDRL on the following date with a 70 percent disability rating.  At that time, he had completed only 3 years, 4 months, and 23 days of active military service.

2.  By law, the retiree must have completed 20 years of service for purposes of computing retired pay in order to be eligible for the special compensation.  Unfortunately, the applicant did not meet all the eligibility requirements for award of SCSD.  In addition, this program was repealed in Fiscal Year (FY) 2004 and replaced by CRDP.  Unfortunately, CRDP also requires 20 years of service.  The CRSC (for which the applicant’s disability probably rendered him ineligible) also requires 20 years of service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

xx_____  xx______  xx______  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.



      xxxxxxxxxxxx   ___
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080004510



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ABCMR Record of Proceedings (cont)                                         AR20080004510



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