IN THE CASE OF:
BOARD DATE: 10 June 2014
DOCKET NUMBER: AR20130016157
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 Retirement and Disability Payments (CRDP).
2. The applicant states:
* he is just trying to prove that he was in the field in November 1979
* he is trying to obtain CRDP
* there is a lack of records from Headquarters and Headquarters Company, 10th Aviation Battalion
3. The applicant provides:
* letter, dated 3 April 2009, from the National Personnel Records Center in St. Louis, MO
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Service personnel records
* Leave and Earnings Statements
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 June 1976 for a period of 4 years. He completed his training and was awarded military occupational specialty 05C (radio telephone and telegraph operator).
3. Records show he was hospitalized in September 1979 and underwent disability processing.
4. On 20 February 1980, he retired and was placed on the Temporary Disability Retired List (TDRL) the following day. He completed 3 years, 7 months, and 26 days of creditable active service. On 31 March 1982, he was removed from the TDRL with a permanent disability rating (50%).
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 Department of Veterans Affairs (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 (Title 10, U.S. Code, chapter 61) must have 20 years of service.
6. Combat-Related Special Compensation (CRSC) and 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
7. 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. Retired under the Temporary Early Retirement Act (TERA) and have a VA disability rating of 50% or greater.
c. 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 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 3 years,
7 months, and 26 days of active service.
2. 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) AR20130016157
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ABCMR Record of Proceedings (cont) AR20130016157
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