IN THE CASE OF:	  

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100000971 

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 revocation of his waiver of military retired pay, restoration of his retired pay, and any retroactive benefits due as a result thereof.

2.  The applicant states that:

a. he began working as a construction inspector for the Army at Camp
Casey, Korea in June 1976, where he fell from a scaffold that collapsed beneath him while inspecting a bridge, resulting in major injuries to his vertebra and spinal cord in 1986;

b. after repaying all of the Civilian Service Retired System (CSRS) benefits,
he realized he waived his military retired pay for nothing;

c. the government told him that the waiver of his military retired pay was
irrevocable;

d. having recovered from two cervical fusion operations he returned to work
and being unable to perform his normal duties because of significant symptoms caused by his spinal injuries, he took leave and returned to the hospital for further evaluation where he learned his injuries were permanent and that he would have to live a sedentary lifestyle;

e. he returned to work again but was unable to fulfill the requirements of his
job and moved back to the United States;

f. he never received compensation from the Office of Workers
Compensation Programs (OWCP) and having used all of his leave and vacation time, he applied for disability retirement, which was delayed due to a paperwork shuffle with disability retirement officials;

g. in the interim, he had no leave, no ability to work, and insufficient income
from his military retired pay to support himself and his family, and as a result, he applied for civil service retirement in September 1990 as a matter of necessity; 

h. he learned that because he did not have 20 years of civil service, he
would have to combine his military service with his civil service to receive Civil Service Retirement System (CSRS) benefits and that he would have to waive his entitlement to military retired pay;

i. shortly after sending in his waiver of military retired pay on 5 October
1990, he was notified that his decision was irrevocable;

j. on 26 July 1994, the OWCP found that his claim was legitimate and
granted him schedule awards which he received until they ran out in mid 1997, at which time the applicant requested compensation under OWCP rather than the CSRS benefits;

k. despite being physically unable to work since he left Korea, the applicant’s
request was denied on 9 October 1997, on the grounds that his record did not establish that his agency did not accommodate his physical limitations at the time;

l. after a hearing on 16 June 1999, a Deputy Assistant Secretary for
Workers Compensation Program official ruled that the applicant was entitled to compensation for temporary total disability on expiration of his schedule awards, and he elected OWCP benefits rather than civil service retirement;

m. he was informed to repay the total sum of all CSRS benefits received in
order to receive retroactive OWCP pay, which he remitted in full in April 2000;  This was necessary because Title 5 U.S.C. 8116 prohibits concurrent receipt of CSRS retired pay and OWCP pay.

n. based on repayment of all CSRS benefits, he only receives OWCP
benefits and he did not retain any civilian or military service retirement benefits and thus has not received any military retired pay since October 1990;

o. 
having been notified of being awarded the Soldier’s Medal and the
entitlement to an increase in military retired pay, for an act of bravery in 1962, he inquired with the Defense Finance and Accounting Service (DFAS) if he could revoke his waiver of retired pay and was informed he had to submit his inquiry to the Office of Personnel Management (OPM);

p. on 12 May 2008, 24 October 2008, and 20 February 2009, the OPM
thrice denied his request to eliminate his military service from his civil service retirement annuity and to revoke the waiver of military retired pay, pursuant to Comptroller General ruling (52 Comp. Gen. 429) which states “an employee who waived military retired pay in order to use his military service to establish eligibility for a CSRS annuity could not subsequently revoke the waiver, reinstate the military retired pay and elect a reduced CSRS annuity, because this would amount to a double benefit based on the same service which the law does not contemplate;

q. having timely appealed his request to the Merit System Protection Board
(MSPB) he voluntarily withdrew his appeal because OPM rescinded their 20 February 2009 final decision based on legal precedent set by the MSPB in BLACK v. OPM, 37 M.S.P.B. 544 (1988), which established that OPM lacks authority to revoke an individual’s waiver of military retired pay, and an individual must “petition the Department of the Army to seek revocation of his waiver of MRP”;

r. in response to a second request for revocation of his waiver of military
retired pay, the DFAS indicated that until OPM and the Department of Labor came to a resolution that would allow OPM to reinstate his civil service annuity, the DFAS could not reinstate the military retired pay, however the Deputy Assistant General Counsel for DFAS stated that if the applicant’s waiver were voided and corrected in the record, then DFAS would possibly be able to reinstate the applicant’s military retired pay retroactively and pay any amounts due;

s. he and his counsel contacted the Army Human Resources Command to
search the proper office with knowledge of or authority to issue a revocation of a waiver without success and have therefore exhausted all administrative remedies available to them; 

t. through his attorney’s and his own research efforts, he learned that a
waiver of military retired pay is revocable in certain circumstances; and

u. his record is unjust because it results in his inability to collect his earned
retirement benefits which has been cut off since 1990.
3.  The applicant provides twenty-four documents in the listed Table of Contents in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests revocation of the applicant’s waiver of military retired pay.

2.  Counsel states:

a. that the main issue is, can an individual revoke his waiver of military
retired pay and have that same pay reinstated when said revocation would not result in a double benefit of retirement benefits based on the same service;

b. the general view appears to be that such waivers are irrevocable because
they normally would result in the petitioner receiving a double benefit based on the same service, however the authority has consistently supported granting waivers of military retired pay in those cases where no doubled benefit would result;

c. the applicant’s election of CSRS benefits and subsequent waiver of
military retired pay was due to financial duress caused by complications in his petition for OWCP benefits;

d. once the applicant was granted OWCP benefits, he repaid all sums
received from his CSRS annuity and as a result reinstating his military retired pay would not result in a double benefit for his military service but he would rather receive his earned military retirement benefits.

3.  Counsel provides no additional documentation.

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’s military record shows he last entered active duty on 29 June 1973, and continuously served until he was honorably retired from active duty on 31 August 1975.  The DD Form 214 (Report of Separation from Active Duty) issued to him at that time shows he completed a total of 22 years, 5 months, and 12 days of creditable active military service.

3.  On 22 June 1986, the applicant was injured on the job while employed as a civilian with the Department of the Army.

4.  On 21 November 1988, a claims examiner, Department of Labor (DOL), Office of Workers’ Compensation Program (OWCP) informed the applicant his claim for compensation benefits were denied.

5.  On 5 October 1990, the applicant submitted a waiver of his retired pay to the DFAS effective on 15 October 1990.  The applicant’s record shows he began to receive a civil service annuity on 1 November 1990.

6.  On 26 July 1994, the applicant was granted schedule awards for 39 % permanent partial impairment of his right leg and an 11% permanent partial impairment of his right arm which arose out of his on the job injuries of June 1986.

7.  On the expiration of the applicant’s schedule awards, he initiated a request to elect compensation from OWCP rather than CSRS.  It was denied by the OWCP, District Office on 9 October 1997.

8.  On 16 June 1999, the Hearing Representative for Deputy Assistant Secretary for Workers’ Compensation Programs set aside the 9 October 1997 denial and remanded his case to be granted.

9.  An OPM, OWCP, letter dated 18 January 2000, shows that the Director, OWCP mandated all payments of civilian service retirement annuity made to the applicant be returned to OPM before any nonscheduled compensation could be paid.  An OPM letter dated 27 April 2000, shows overpayment made to the applicant because of his election of compensation benefits in lieu of a civil service annuity had been paid back in full in the amount of $204,019.17.

10.  On 12 May 2008, 24 October 2008, and 20 February 2009, the OPM denied the applicant’s request to eliminate his military service from his civil service retirement annuity and to revoke the waiver of his military retired pay, pursuant to Comptroller General ruling (52 Comp. Gen. 429) which states “an employee who waived military retired pay in order to use his military service to establish eligibility for a CSRS annuity could not subsequently revoke the waiver, reinstate the military retired pay, and elect a reduced CSRS annuity, because it would amount to a double benefit based on the same service which is prohibited by law. The applicant was also informed of his right to appeal his case to the Merit Service Protection Board (MSPB).

11.  On 27 March 2009, the applicant appealed his case to the MSPB.

12.  On 19 May 2009, an OPM agency representative notified the Administrative Judge, MSPB, that the OPM was rescinding their decision made on 20 February 2009, citing the lack of authority to revoke the applicant’s waiver of military retired pay.

13.  On 20 May 2009, the MSPB dismissed the applicant’s appeal.

14.  On 24 May 2009, the Legal Administrative Specialist, Disability, Reconsideration and Appeals Group, OPM indicated the applicant elected to receive compensation benefits under the Federal Employees’ Compensation Act (FECA) in lieu of benefits provided by the OPM.  She also confirmed the applicant was not in receipt of a civilian service annuity.

15.  On 31 July 2009, the DFAS indicated that until the OPM and the Department of Labor come to a resolution that would allow OPM to reinstate his civil service annuity, the DFAS could not reinstate the military retired pay.

16.  Comptroller General ruling (52 Comp. Gen. 429) states that an employee who waived military retired pay in order to use his military service to establish eligibility for a CSRS annuity could not subsequently revoke the waiver, reinstate the military retired pay and elect a reduced CSRS annuity, because this would amount to a double benefit based on the same service which the law does not contemplate.

17.  Title 5 United States Code Section 8116 provides limitation on the right to receive compensation.  While an employee is receiving compensation under this subchapter, or if he has been paid a lump sum in commutation of installment payments until the expiration of the period during which the installment payments would have continued, he may not receive salary, pay, or remuneration of any type from the United States, except:

	a.  in return for service actually performed; 

	b.  pension for service in the Army, Navy, or Air Force;

	c.  other benefits administered by the Department of Veterans Affairs unless such benefits are payable for the same injury or the same death; and 

	d.  retired pay, retirement pay, retainer pay, or equivalent pay for service in 
the Armed Forces or other uniformed services.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend that the applicant’s waiver of military retired pay should be revoked.

2.  The evidence of record confirms:

* that having retired from active duty with over 22 years military service the applicant was injured on his civilian service job on 22 June 1986
* the DOL, OWCP initially denied the applicant’s request for disability on 21 November 1988
* the applicant waived his military retired pay in order to combine his military service with his civilian service to establish sufficient service for CSRS benefits
* in July 1994, the DOL, OWCP granted the applicant schedule awards for his impairments that arose out of his on the job injuries of 22 June 1986
* having received his final schedule award, the applicant elected to receive compensation benefits instead of a civil service annuity and was informed he would have to repay all benefits received under CSRS first
* all CSRS benefits received by the applicant covering the period 1 November 1990 to 30 November 1999, were paid back in full in the amount of $204,019.07 on 27 April 2000
* the applicant was awarded the Soldiers Medal and notified of his entitlement to an increase in his military retired pay due as a result of this award on 24 June 2008
* after having denied the applicant’s request to revoke his waiver of retired pay on three separate occasions, the OPM determined that its agency did not have the authority to rule on such a matter
* the DFAS continues to assert that it cannot reinstate the applicant’s military retired pay because it has no authority to set aside a prior waiver of retired pay

3.  Based on Comptroller General Ruling (Comp 52 Gen 49) an employee who waived military retired pay in order to use his military service to establish eligibility for a CSRS annuity could not subsequently revoke the waiver, reinstate the military retired pay and elect a reduced CSRS annuity, because this would amount to a double benefit based on the same service which is prohibited by law.
4.  Subsequently, DOL officials determined the applicant was entitled to OWCP benefits and granted him scheduled awards for his 22 June 1986 on the job injuries, which he received until they ran out.  Thereafter, the applicant elected to receive worker’s compensation benefits under the FECA, paid back all benefits received under CSRS.  Therefore, up until this point, the applicant has not received a double benefit for his military service.

5.  Further, there are no provisions of law (Title 10) governing military retired pay that prohibits concurrent receipt of military retired pay and worker’s compensation benefits under FECA.  The evidence of record confirms the DOL, OWCP, denied the applicant compensation benefits following his 22 June 1986 injury on the job after his initial application was made.  Having made unsuccessful attempts to return to work and having used all of his leave, the applicant applied for and received CSRS benefits in order to adequately provide for his family and himself. Because the applicant had insufficient civilian service to qualify for CSRS benefits it was necessary for him to combine his military service with his civilian service and waive his military retired pay, which he did.

6.  Had the applicant been granted benefits under the OWCP following his injuries on the job on 22 June 1986, he would have simultaneously received this benefit and his military retired pay.  However, because he was denied this benefit, he combined his civilian and military service to obtain sufficient service to qualify for CSRS benefits and waived military retired pay in order to adequately provide for his family and himself.  Because of the errors made in granting the applicant OWCP benefits to which he was entitled, in the interest of equity and justice, it would be appropriate to correct the applicant’s record to show he never waived his military retired pay and to provide him all of his back pay and allowances due from 1 November 1990, the effective date of the waiver.

BOARD VOTE:

____X___  ___X____  __X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he never waived his military retired pay.

2.  The ABCMR will forward this case to DFAS for an audit and calculation of the amount of military retired pay due to the applicant.



      __________X___________
               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)                                         AR20100000971





3


ARMY BOARD FOR CORRECTION OF MILITARY RE