IN THE CASE OF:	  

		BOARD DATE:	  30 August 2011

		DOCKET NUMBER:  AR20100024907 


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 Concurrent Retirement and Disability Pay (CRDP) payments.  

2.  He states he/the:

* was retired for disability with eligibility to CRDP under Title 10, U.S. Code
* Defense Finance and Accounting Service (DFAS) fails to pay him CRDP because it incorrectly computed his retirement status and eligibility
* previously applied to this Board for correction of his discharge to show that he was placed on the Temporary Disability Retired List (TDRL), effective 16 October 2004
* is currently receiving 100 percent (%) disability compensation from the Department of Veterans Affairs (VA)
* is entitled to CRDP

3.  He provides:

* Memorandum in Support of CRDP
* Congressional letter from DFAS 
* Letter from the Director of the Veterans Law Clinic to DFAS
* Two letters from DFAS
* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* Two Army National Guard Current Annual Statements


* Army Board for Correction of Military Records (ABCMR) Decision, dated 22 August 2006
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Four VA Rating Decisions

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states the applicant(‘s):

* was diagnosed with stomach cancer and underwent removal of a portion of his stomach in October 2002
* was evaluated by a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) and was discharged with 0% disability and severance pay
* applied to this Board and his original discharge with severance pay was voided, he was placed on temporary disability retirement, and his records were corrected to reflect his disability retirement
* was placed on the TDRL in August 2006
* received disability retirement pay from August 2006 until 2008 when DFAS offset his VA compensation benefits and disability retirement pay
* was awarded 40% service-connection for residuals post gastrectomy in July 2007
* combined disability rating was increased to 70%, then to 100% Total Disability Individualized Unemployability

2.  Counsel contends that DFAS refused to approve CRDP payment of VA disability compensation and military retirement pay based on three points:

* the applicant was a member of the Army National Guard
* the applicant is not eligible for CRDP until he reaches age 60 in 2020 
* the applicant had insufficient retirement points to retire on completion of 20 years of service

3.  Counsel references Title 10, U.S. Code and Title 38, Code of Federal Regulation, section 3.750.  Counsel contends that the applicant was rated 100% with an effective date of 13 December 2005 and neither the statute nor pertinent regulation make any exceptions with respect to members of the Army Reserve or Army National Guard who are retired under this chapter while on active duty.  Counsel also contends that DFAS improperly construed pertinent statutes and regulations affecting chapter 61 retirees who are 100% disabled according to VA determination of percent of disability.  



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 was born on 23 June 1960.  After having had 16 years of prior service in the Regular Army, he enlisted in the Army National Guard on 11 May 1994.  

3.  He was ordered to active duty in support of Operation Enduring Freedom on 9 August 2002.  

4.  He was issued his 20-Year Letter on 3 June 2003.  

5.  On 22 January 2004, an MEB referred the applicant to a Physical Evaluation Board (PEB) for a diagnosis of gastric cancer.  On 1 April 2004, an informal PEB found him to be physically unfit based on his diagnosed condition of gastric cancer.  The informal PEB recommended the applicant be separated with a zero percent disability rating.  The PEB informed the applicant that it appeared he was qualified for a Reserve retirement at age 60.  He therefore had the option of accepting disability severance pay and forfeiting his Reserve retirement or being placed in an inactive Reserve status and receive Reserve retired pay at age 60.

6.  On 12 April 2004, he nonconcurred with the findings of the informal PEB and requested a formal hearing.  On 2 June 2004, a formal PEB upheld the findings of the informal PEB and again determined that he should be rated at zero percent based on the medical evidence.  He rebutted the findings of the formal PEB.  On 5 August 2004, the U. S. Army Physical Disability Agency found that the findings and recommendations of the formal PEB were supported by substantial evidence and were therefore affirmed.   

7.  On 10 September 2004, he elected to receive disability severance pay upon separation and acknowledged that he would not receive Reserve retired pay at age 60.  
8.  On 15 October 2004, he was honorably separated from active duty by reason of physical disability with severance pay.  He had completed a total of 18 years, 2 months, and 8 days of creditable active service and a total of 26 years, 5 months, and 5 days of service for pay.  He was discharged from the Army National Guard and as a Reserve of the Army on the same date.

9.  On 10 November 2005, this Board denied his request that his 0% disability rating be changed to 60%.  

10.  On 22 August 2006, this Board recommended correction of his State Army National Guard records and his Department of the Army records by:

     a.  showing that he was found unfit by the 2 June 2004 formal PEB by reason of postgastrectomy symptoms, moderate, with weight loss, diarrhea, and circulatory symptoms, under VASRD code 7308 with a 40% disability rating with the recommendation that he be placed on the TDRL;

     b.  voiding his 15 October 2004 separation from active duty and his 15 October 2004 discharge from the Army National Guard and as a Reserve of the Army;

     c.  placing him on the TDRL, effective 16 October 2004; and

     d.  affording him the opportunity to undergo a TDRL medical evaluation as soon as possible.

11.  On 14 July 2007, the VA granted him service-connection for gastric cancer, status post resection of 80% of the stomach and status post chemotherapy and radiation therapy (to include the claim for gastritis and left sided pain), was increased from 20% to 40% disabling, effective 16 October 2004.  

12.  Orders published on 2 August 2007 show he was removed from the TDRL, effective 2 August 2007 because of permanent physical disability and, on the date following, he was permanently retired in the grade of sergeant.  His retirement orders show his disability rating as 60%.  

13.  His VA Rating Decision, dated 10 December 2007, shows his entitlement to individual unemployability was granted, effective 13 September 2007 and eligibility to Dependents’ Educational Assistance, was not established.  

14.  In a 13 July 2009 letter, DFAS informed the applicant that he was not eligible for CRDP payments based on the reason that his 60th birthday was not until 23 June 2020 and he would not be eligible until then and in receipt of retired pay.  
15.  His VA Rating Decision, dated 24 July 2009, shows his evaluation of intervertebral sprain, lower back, which was currently 40% disabling, was continued.  

16.  His VA Rating Decision, dated 1 February 2010, indicated that his entitlement to an earlier effective date for the grant of individual unemployability was granted, with a new effective date of 13 December 2005.

17.  In a 28 July 2010 letter, DFAS informed the applicant’s congressman that he would be entitled to CRDP when he reached age 60 on 23 June 2020.  DFAS stated that the applicant retired on 3 August 2007 and received military retired pay until 1 January 2008.  At that time, VA notified them that the applicant was eligible to receive disability compensation.  DFAS stated that the applicant’s retired pay account was in a suspended status.  DFAS also stated that members retired by reason of physical disability with 20 years of total active service, or 20 years of qualifying service (7,200 reserve points) for members of a reserve or guard component were also eligible for CRDP upon reaching age 60.  

18.  His Army National Guard Current Annual Statement, dated 26 August 2010, shows he completed 24 years, 5 months, and 6 days of qualifying service for retired pay at age 60 with 7,147 total points for retired pay.  

19.  The Fiscal Year 2004 National Defense Authorization Act provided a 10-year phase-out of the offset to military retired pay due to receipt of VA disability compensation for members whose combined disability rating is 50% or greater.  This provision is referred to as CRDP.  Members retired under disability provisions (10 U.S. Code, chapter 61) must have 20 years of either active duty or qualifying years of service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was medically retired on 15 October 2004 with entitlement to severance pay.  At that time, he had completed 20 years of qualifying service for retired pay at age 60.  

2.  On 22 August 2006, this Board corrected his records to show he was unfit for duty with a 40% disability rating and with the recommendation that he be placed on the TDRL, effective 16 October 2004.  He was removed from TDRL, effective 2 August 2007 and he was permanently retired with a 60% disability rating.  

3.  He was removed from the TDRL on 2 August 2007 and was permanently retired on 3 August 2007 with a disability rating of 60%.  

4.  In a 28 July 2010 letter, DFAS indicated the applicant had received retired pay until 1 January 2008 and was notified the applicant was eligible to receive disability compensation.  As a result, he was required to waive a portion of his gross retired pay.  

5.  The Fiscal Year 2004 National Defense Authorization Act provided a 10-year phase-out of the offset to military retired pay due to receipt of VA disability compensation for members whose combined disability rating is 50% or greater.  This provision is referred to as CRDP.  Members retired under disability provisions (10 U.S. Code, chapter 61) must have 20 years of either active duty or qualifying years of service.  

6.  The applicant has 20 years of qualifying service and a combined disability rating of over 50%.  However, he has not reached age 60.  Therefore, he has not met all of the eligibility requirements for CRDP payments.  

7.  Based on the foregoing, there is no basis for granting the requested relief.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  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.



      _______ _   _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)                                         AR20100024907





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ABCMR Record of Proceedings (cont)                                         AR20100024907



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