IN THE CASE OF:
BOARD DATE: 7 October 2014
DOCKET NUMBER: AR20140002179
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 correction of his records to show he retired on 9 November 2013 with 20 years and 21 days of active duty service.
2. The applicant states he was referred to a medical evaluation board (MEB) in late 2012. He was advised by his legal counsel and the Physical Evaluation Board Liaison Officer (PEBLO) that, because he was within 6 months of retirement, he would be considered qualified for 20 year retirement and therefore eligible for concurrent Department of Defense (DoD) military pay and Department of Veterans Affairs (VA) disability pay. He mistakenly took this advice at face value but has since learned that it was wrong. He considers it a grave injustice to have been retired for disability 21 days before he qualified for retirement due to length of service.
3. The applicant provides copies of a DA Form 5892 (PEBLO Estimated Disability Compensation Worksheet) and his DD Form 214 (Certificate of Release or Discharge from Active Duty.
CONSIDERATION OF EVIDENCE:
1. The applicant, a Regular Army major, had about 3 years, and 9 months of prior active duty service. U.S. Army Garrison, Fort Belvoir Orders 022-0008, dated 22 January 2013, ordered his non-disability voluntary retirement on 1 November 2013. He would have had 20 years and 23 days of active duty service.
2. A 9 June 2013 PEB found the applicant 100 percent disabled due to post- traumatic stress disorder and bipolar disorder. It also considered some twenty other diagnoses from the MEB but found them not unfitting. The PEB recommended the applicant be placed on the Temporary Disability Retired List (TDRL).
3. The applicant concurred with the informal PEB, waived consideration by a formal PEB and indicated he did not request a review of his VA rating.
4. He was retired on 17 September 2013 and transferred to the TDRL. He had completed 19 years, 11 months, and 10 days of creditable active service.
5. The DA Form 5892 that the applicant submitted with his application shows that the PEBLO calculated his monthly retirement pay at $3,642.20 if he retired due to longevity and $5,373.75 if he retired due to disability and the disability retired pay was non-taxable.
6. A 20 January 2014 letter from the U.S. Army Human Resources Command (HRC) shows the applicant had been granted 100 percent Combat Related Special Compensation (CRSC) for PTSD and 10 percent CRSC for tinnitus.
7. Numerous websites, including official DoD and VA websites, discuss the subject of concurrent DoD and VA Pay and convey, generally, that the law requires that whenever an individual receives VA disability compensation there be a dollar-for-dollar reduction in any military retired pay. However, two programs (emphasis added) have been legislated that partially make up for this offset. Retirees cannot receive benefits simultaneously under both of these programs. The programs are Concurrent Retirement and Disability Payment (CRDP) program and the CRSC program. These programs are discussed briefly below:
a. The CRDP program provides a 10-year phase-out of the offset to military retired pay due to receipt of VA disability compensation. The phase-out will be complete in 2014. Qualified individuals are those who are retired active or reserve members who are currently entitled to retired pay and who also have a combined VA disability rating of 50% or greater. Members retired under military disability provisions (Chapter 61 to Title 10, U.S. Code) must have at least 20 years of service. CRDP is a restoration of retired pay and subject to all the same laws and regulations as retired pay. A brief program description follows:
(1) Effective 1 January 1 2004: Initial entitlement under the program began.
(2) Effective 1 January 2005: The 10-year phase-out was eliminated for those individuals actually rated 100% disabled (emphasis added) by the VA and they became eligible to receive all of their formerly offset military retired pay.
b. The CRSC program provides a special monthly payment equivalent to portion of the offset to military retired pay due to receipt of VA disability compensation determined to be combat-related. Qualified individuals include any military retired members with an offset to retired pay due to VA compensation determined to be combat-related. CRSC is not a restoration of retired pay, rather it is a special compensation.
DISCUSSION AND CONCLUSIONS:
1. The applicant was disabled. It would have been unjust not to retire him due to disability, especially when his disability retired pay was non-taxable.
2. The DA Form 5892 that the applicant submitted with his application shows he would receive far more income by retiring due to disability. The contention that he was ill advised is not reasonable.
3. Receipt of concurrent pay is only one of two programs which deal with the issue of a VA offset. The applicant was eligible for and received CRSC. He suffered no financial setback from retiring due to disability rather than length of service. CRSC and CRDP may not be received simultaneously.
4. The applicant has submitted neither probative evidence nor a convincing argument in support of the 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) AR20140002179
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ABCMR Record of Proceedings (cont) AR20140002179
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