BOARD DATE:	  11 September 2014

		DOCKET NUMBER:  AR20130021424 


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 reimbursement of Voluntary Separation Incentive (VSI) payments withheld by the Defense Finance and Accounting Service (DFAS) in the amount of $35,468.00 during the period 1 June 2006 to 1 May 2007.

2.  The applicant states that DFAS did not have the authority to withhold VSI payments because his disability was based on injuries that occurred during a different period of service in which he was paid the VSI. 

3.  The applicant provides no additional documents with his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board grant the applicant’s request to be reimbursed $35,468.00 unjustly withheld by DFAS during the period 1 June 2006 to 1 May 2007.

2.  Counsel states, in effect, that DFAS unjustly withheld his VSI payments for the period 1 June 2006 to 1 May 2007 because the applicant was receiving disability payments from the Department of Veterans Affairs (VA).  However, the applicant’s disabilities were incurred when he served as an armor officer during a prior period of service and were not subject to recoupment under the applicable statutes.  The applicant underwent a magnetic resonance imaging in 1993 that shows his injuries as an armor officer.  However, the applicant was an armor officer only for the first 2 years of his service.
3.  Counsel provides a five-page brief explaining the applicant’s position that contains an index of documents provided with the application.

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 commissioned as a U.S. Army Reserve (USAR) second lieutenant on 9 December 1976 and entered active duty as an armor officer on 13 February 1977.  He served until he was honorably released from active duty on 12 February 1979 and was transferred to the USAR. 

3.  He again entered active duty on 18 November 1979 and served as an ordnance officer.  He was promoted to the rank of major on 1 October 1989.

4.  On 31 May 1993, he was honorably released from active duty under the provisions of Army Regulation 635-100, chapter 3, Section XVI and the Early Release Program – VSI.  He had served 15 years, 6 months, and 13 days of active service and was authorized VSI payments of $17,546.31 annually for      31 years. 

5.  In August 2006, the applicant received a 100% service-connected disability rating from the VA.

6.  On 10 March 2007, DFAS dispatched a letter to the applicant informing him that while he was entitled to receive VSI payments of $17,546.31 until 31 May 2023, Public Law 10 U.S.C., section 1175 provided that members who elected to receive VSI payments will have reduced from each installment (before taxes), the amount of disability compensation concurrently received.  Accordingly, the amount of $35,458.00 in compensation received during the period 1 June 2006 to 31 May 2007 exceeded his VSI entitlement and therefore no VSI payment would be made. 

7.  The letter provided by the applicant from the VA simply states that the applicant is permanently and totally disabled due to service connected disabilities.

8.  Title 10, U.S.C., section 1175 (e) (4) provides that a member who is receiving VSI payments shall not be deprived of this incentive by reason of entitlement to disability compensation under the laws administered by the VA, but there shall be deducted from VSI payments an amount equal to the amount of any such disability compensation concurrently received.  Notwithstanding the preceding sentence, no deduction may be made from VSI payments for any disability compensation received because of an earlier period of active duty if the VSI is received because of discharge or release from a later period of active duty. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and supporting documents have been carefully considered.

2.  While it appears that the applicant’s issue is with DFAS, the applicant has not provided sufficient evidence to show that his disability compensation is based on injuries incurred during a previous period of service.  The VA letter he provided does not indicate what his disabilities are or when he sustained the underlying injuries.

3.  Therefore, in the absence of evidence to show that the applicable statutes apply to him in regard to withholding concurrent payments from his VSI payments, there appears to be no basis to grant his request.

4.  If the applicant can provide such evidence, he is advised to provide such evidence to DFAS.

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)                                         AR20130021424





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ABCMR Record of Proceedings (cont)                                         AR20130021424



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