IN THE CASE OF:	  

		BOARD DATE:  14 February 2012

		DOCKET NUMBER:  AR20110015278 


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 receipt of concurrent Department of Veterans Affairs (VA) compensation and retirement pay.

2.  The applicant states he has over 15 years of active duty service and he completed two combat tours.

3.  The applicant provides:

* 2010 U.S. Army Physical Disability Agency (USAPDA) permanent disability retirement memorandum
* 2007 DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 2010 Orders D207-2 (retirement orders)
* 2010 Retiree and Account Statement
* 2010 DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* Appeal to the Defense Finance and Accounting Service (DFAS) with allied/supporting documents, including his narrative summary, medical evaluation board, and PEB
* 2011 VA rating decision
* Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points)

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 9 July 1953.  He would attain age 60 on 9 July 2013.
2.  Having had prior service in the Regular Army (1 June 1978 to 30 July 1987), the U.S. Army Reserve (USAR) (31 July 1987 to 25 May 1988), the Army National Guard (26 May 1988 to 25 May 2004), and the USAR (26 May 2004 to 29 September 2006), the applicant enlisted in the USAR for an indefinite term on 30 September 2006.  He held the rank/grade of master sergeant (MSG)/E-8.

3.  On 8 September 2004, he was ordered to active duty in support of Operation Iraqi Freedom (OIF) and he subsequently served in Kuwait/Iraq from 2 October 2004 to 27 August 2005.  He was honorably released from active duty on
21 September 2005.

4.  On 2 July 2006, he was again ordered to active duty in support of OIF and he subsequently served in Kuwait/Iraq from 17 September 2006 to 5 September 2007.  He was honorably released from active duty on 25 October 2005. 

5.  On 22 June 2010, a PEB convened in Washington, DC, and determined his medical conditions prevented his satisfactory performance of duty in his grade and military occupational specialty (MOS).  He was rated under the VA Schedule for Rating Disabilities (VASRD) and he was granted a combined disability rating of 70 percent (%) for various conditions.  The PEB recommended the applicant be permanently retired.  He concurred with the PEB's findings and recommendation.

6.  On 26 July 2010, the USAPDA published Orders D207-2 releasing him from his Reserve assignment and placing him on the Retired List effective 30 August 2010, in the rank/grade of MSG/E-8.  He completed 16 years, 4 months, and
17 days of creditable active service and 32 years, 3 months, and 5 days of total service for pay.

7.  His ARPC Form 249-E shows he completed 32 qualifying years of service toward non-regular retirement.  Additionally, although not available for review, he appears to have received a notification of eligibility for retired pay at age 60
(20-year letter).

8.  On 7 April 2011, the VA awarded him 90% combined service-connected disability compensation, effective 2 July 2010.

9.  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 Concurrent Retirement and Disability Pay (CRDP).  Members retired under disability provisions (Title 10, U.S. Code, chapter 61) must have 20 years of service.
10.  Combat-Related Special Compensation (CRSC) and Concurrent Retirement Disability Pay (CRDP) are programs created by Congress in Public Law 108-136 to allow eligible military retirees to receive monthly entitlements in addition to retired pay.  The purpose of these entitlements is to recover some or all of the retired pay that military retirees waive for VA disability compensation.

* CRSC is a special compensation for combat-related disabilities; it is non-taxable, and retirees must apply to their Branch of Service to receive it
* CDRP is a restoration of retired pay for retirees with service-connected disabilities, and it is taxable; no application is required; eligible retirees receive CRDP automatically

11.  CRDP allows military retirees to receive both military retired pay and VA compensation.  This was prohibited until the CRDP program began on 1 January 2004.  CRDP is a "phase in" of benefits that gradually restores a retiree's VA disability offset.  This means that an eligible retiree's retired pay will gradually increase each year until the phase in is complete in 2014.  If qualified, a member is enrolled automatically.  To be eligible, a member must be eligible for retired pay to qualify for CRDP.  If the member was placed on a disability retirement, but would be eligible for military retired pay in the absence of the disability, the member may be entitled to receive CRDP.  Under these rules, a member may be entitled to CRDP if:

	a.  A regular retiree with a VA disability rating of 50% or greater.

	b.  A Reserve retiree with 20 qualifying years of service, who has a VA disability rating of 50% or greater, and who has reached retirement age.  (In most cases the retirement age for reservists is 60, but certain Reserve retirees may be eligible before they turn 60.  If a member of the Ready Reserve, retirement age can be reduced below age 60 by 3 months for each 90 days of active service performed during a fiscal year).

	c.  Retired under the Temporary Early Retirement Act (TERA) and have a VA disability rating of 50% or greater.

	d.  A disability retiree who earned entitlement to retired pay under any provision of law other than solely by disability, and has a VA disability rating of 50% or greater.  The member might become eligible for CRDP at the time the member would have become eligible for retired pay. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be entitled to CRDP.  He does not qualify for CDRP at this time.

2.  The law authorizes CRDP to a regular retiree (20 years or more of active Federal service) with a VA rating of 50% or greater.  The applicant did not complete 20 years or more of active Federal service.  He completed 16 years,
4 months, and 17 days of active service.

3.  The law also authorizes CRDP to a Reserve retiree with 20 qualifying years of service, who has a VA disability rating of 50% or greater, and who has reached retirement age, in his case, age 60.  The applicant will attain the age of 60 on 9 July 2013.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110015278



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ABCMR Record of Proceedings (cont)                                         AR20110015278



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