IN THE CASE OF:	  

		BOARD DATE:	  29 April 2014

		DOCKET NUMBER:  AR20130014573 


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, in effect, reversal of the decision to deny him Combat Related Special Compensation (CRSC) benefits.

2.  The applicant states:

   a.  After being approved for CRSC benefits twice in 2010, he was disapproved several times by the U.S. Army Human Resources Command (HRC) and the Defense Finance and Accounting Service (DFAS) between 2011 and 2013.  He has been advised repeatedly the reasons he was denied were that he was not in a retired military status and he did not have a waiver.  His DA Form 977 (U.S. Army Retired Reserve Certificate) indicates he is retired.  Title 38, Code of Federal Regulation (CFR), section 3.750, clearly states that a totally disabled veteran is not required to file a waiver.

   b.  He is 76 years of age and totally disabled (100 percent (%)).  He is a Retired Reservist and should be granted CRSC.  While he was an inpatient in the Brooklyn Department of Veterans Affairs (VA) Hospital in 1977 he was told not to try to collect military retired pay.  He never requested retired pay because he did not have 20 years of service.  He was also told this was "double dipping."  He never attempted to try to collect any monies except for his VA benefits.   Since then the laws have changed and he should be eligible for CRSC according to the 2008 rules.


   c.  He would also like to know if he is in a military retired status and if not and he doesn't have a discharge, then is he still on active duty?  Why was a waiver requested since according to Title 38, CFR, Section 3.750, as a totally disabled veteran he is exempt from waivers?  How can he receive military retired pay if he has not been in the service for 20 years?  He was told he was ineligible for retirement benefits if he collected from the VA?  If he is not military retired then is his DA Form 977 invalid?

3.  The applicant provides copies of the following:

* DA Form 977
* Orders Number 217-21
* Three letters from HRC and one letter from DFAS
* Chronological Statement of Retirement Points
* Title 38, CFR, section 3.750
* Title 38, U.S. Code (USC), sections 1204, 5304, and 5305

CONSIDERATION OF EVIDENCE:

1.  The applicant was inducted into the Army of the United States (AUS) on 
6 August 1956.  He was released from active duty on 5 August 1958 and he was transferred to the U.S. Army Reserve (USAR).  He was honorably discharged from the USAR on 5 August 1962.

2.  He enlisted in the USAR on 16 June 1976 for one year.  He held military occupational specialty 91B (medical specialist).  He was honorably discharged from the USAR on 14 June 1977 for the purpose of immediate reenlistment. 

3.  He reenlisted in the USAR on 15 June 1977.  On 15 June 1978, he extended his reenlistment for 6 months.  On 14 June 1979, he again extended his reenlistment for 6 months.  His expiration of term of service date was established as 15 December 1979.

4.  He provided copies of and his record contains the following:

* Retired Reserve Certificate, dated 1 October 1979, transferring him to the Retired Reserve
* Orders Number 217-21, issued by Headquarters, First United States Army, dated 7 November 1979, reassigning him to the USAR Control Group (Retired), under the provisions of Army Regulation 140-10 (Army Reserve - Assignments, Attachments, Details, and Transfers), paragraph 5-1a(8), by reason of being medically disqualified for retention, with an effective date of 1 October 1979
5.  His record contains the following:

* DA Form 2173 (Statement of Medical Examination and Duty Status) which shows he was treated at the hospital on 25 August 1978 for pain in his chest which occurred during annual training when he became faint and passed out  
* A DD Form 261 (Report of Investigation), dated 17 April 1979, changing his medical disease determination to in the line of duty

6.  He reached age 60 on XX October 1996.

7.  He also provided copies of the following:

   a.  A letter, dated 20 August 2012, wherein HRC advised him of the approval of his claim for CRSC for Arteriosclerotic Heart Disease and Donor Site Scar, Left Upper Medial Thigh (10%) with a total combined-related disability of 100%.  A copy of the decision letter would be sent to DFAS for payment calculation and processing.

   b.  A letter, dated 23 October 2012, wherein DFAS advised HRC that their records did not reflect receipt of orders from the U.S. Army regarding the applicant's eligibility for military retired pay; therefore, they were unable to process his CRSC entitlement.  In order to be eligible for CRSC, the member must be a military retiree.  

   c.  A letter, dated 16 November 2012, wherein HRC advised him of the approval of his claim for CRSC for Arteriosclerotic Heart Disease and Donor Site Scar, Left Upper Medial Thigh (10%) with a total combined-related disability of 100%.  A copy of the decision letter would be sent to DFAS for payment calculation and processing.

   d.  A Chronological Statement of Retirement Points, dated 30 November 2012, which shows:

* he served in the AUS from 6 August 1956 through 5 August 1958
* he served in the USAR from 6 August 1958 through 5 August 1962
* had a break in service from 6 August 1962 through 15 June 1976
* he served in the USAR from 16 June 1976 through1 October 1979
* he was in a retired status from 2 October 1979 through 28 November    2012
* he was credited with 2 years of qualifying service for retired pay

   e.  A letter, dated 3 December 2012, wherein HRC advised him that he currently did not meet eligibility requirements for CRSC.  The letter also advised that Department of Defense guidelines required him to meet all of the following requirements:  receiving military retired pay, have a 100% or greater VA related injury, and military retired pay was reduced by VA disability payments (VA Waiver).  The letter further advised that there was no record of him being in a retired status nor was he receiving retirement pay and to contact DFAS if that was an error and to reapply once he had confirmed he was in a retired status.  The letter also advised him to contact the VA to request a VA Waiver if he did not have a waiver off-setting his retired pay.

   f.  Title 38, CFR, section 3.50, current as of 1 August 2013, which states in:

		(1)  Paragraph b - a veteran who is entitled to military retired pay and disability compensation for a service-connect disability rated 50 percent or more, or a combination of service-connected disabilities rated 50 percent or more, under the schedule of rating disabilities is entitled to receive both payments subject to the phase-in period described in paragraph (c) of this section.

		(2)  Paragraph c - a waiver of military retired pay is necessary in order to receive disability compensation when a veteran is eligible for both military retired pay and disability compensation, but is not eligible under this section to receive both benefits at the same time.

   g.  Title 10, USC, section 1204, which states the Secretary concerned may retire a member on active duty for 30 days or less or on inactive-duty training if the member is unfit to perform the duties of his office, grade, rank, or rating because of physical disability and the disability was incurred before 24 September 1996.

   h.  Title 10, USC, section 5304 and 5305, dated 20 November 2006, paragraph 2, states veterans who are entitled to receive disability compensation based on a VA determination of individual unemployability as well as veterans rated 100% disabled under the VA schedule for rating disabilities need not file a waiver of military retired pay.  The phase-in period does not apply to this group of veterans.

8.  Army Regulation 140-10, in effect at the time, governed the policies and procedures to assign, attach, detail, remove, or transfer USAR members.  The regulation stated in:

   a.  Paragraph 5-1a(8) - USAR members would, upon request, be assigned to the USAR Control Group (Retired) when they have been found medically disqualified for retention in an active status regardless of the total years of service completed.  

   b.  Paragraph 5-2 – orders would cite paragraph 5-1 as the authority and state the reason for the transfer.

   c.  Paragraph 5-3c – members in the Retired Reserve, who have completed less than 20 years of satisfactory service for retired pay and would be unable to complete that amount of service prior to mandatory removal date must include a statement with their request for transfer to the Retired Reserve that they understand that approval of the transfer would not provide exception to mandatory removal laws and that such service would not qualify them for retirement benefits.

9.  CRSC, as established by Title 10, USC, section 1413a, as amended, provides for the payment of the amount of money a military retiree would receive from the VA for combat-related disabilities if it weren't for the statutory prohibition for a military retiree to receive a VA disability pension.  Payment is made by the Military Department, not the VA, and is tax free.  Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for Reserve retirement at age 60) and who have disabilities that are the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or cause by an instrumentality of war.  Such disabilities must be compensated by the VA and rated at least 10% disability.  Military retirees who are approved for CRSC must have waiver a portion of their military retired pay since CRSC consists of the Military Department returning a portion of the waived retired pay to the military retiree.

DISCUSSION AND CONCLUSIONS:

1.  After having had 2 years of prior active service, the applicant initially enlisted in the USAR on 16 June 1976.  He reenlisted in the USAR on 15 June 1977 and 14 June 1979.  Orders were issued on 7 November 1979 reassigning him to the USAR Control Group (Retired), under the provisions of Army Regulation 140-10, paragraph 5-1a(8), by reason of being medically disqualified for retention.  He was also issued a Retired Reserve Certificate.

2.  In accordance with regulations in effect at the time, a USAR member could request to be transferred to the USAR Control Group (Retired) when they had been found medically disqualified for retention in an active status regardless of total years of service.  Members transferred to the Retired Reserve would be furnished a DA Form 977.  It appears he was transferred to the Retired Reserve based on his request.  Therefore, he was properly issued orders and a DA Form 977 at the time.

3.  However, the regulation also specified that members in the Retired Reserve who had completed less than 20 years of satisfactory service for retired pay and would be unable to complete that amount of service prior to their mandatory removal date must include a statement with their request for transfer to the Retired Reserve acknowledging they understood that such service would not qualify them for retirement benefits.

4.  It is unfortunate that HRC advised the applicant twice by letter of his approval for CRSC; however, the evidence shows he was and is not eligible since he is not a military retiree and he did not have 20 years of service creditable for Reserve retirement on his 60th birthday (October 1996).

5.  In 2012, DFAS verified their records did not reflect receipt of orders entitling him to retired pay.  Upon this discovery HRC had no option but to advise him that he currently did not meet all eligibility requirements for CRSC.  There is no evidence and he did not provide sufficient evidence to show he meets all of the requirements for CRSC, receiving military retired pay, have a 100% or greater VA related injury, and his military retired pay was reduced by VA disability payments, which would be a waiver.  

6.  In view of the foregoing, there is insufficient evidence to support the reversal of the decision to deny him CRSC benefits.

7.  With respect to his questions:

   a.  Is he still in a military status – he was issued a DA Form 977 and orders transferring him to the Retired Reserve in 1979.  

   b.  Why was a waiver requested – it appears he is being compensated by the VA for his service-connected disabilities.  If he was receiving retired pay, then and only then, would a waiver have been required as military retirees approved for CRSC must have waived a portion of their military retired pay since a portion of the waived retired pay is returned to the military retiree.

   c.  If he is not military retired then is his DA Form 977 invalid – The DA Form 977 was issued to him in accordance with regulatory guidance in effect at the time and it is a valid document.
   
   
   
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)                                         AR20130014573



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ABCMR Record of Proceedings (cont)                                         AR20130014573



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