IN THE CASE OF:  	  

		BOARD DATE:  21 April 2015  	  

		DOCKET NUMBER:  AR20140010753 


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 retroactive Concurrent Retirement and Disability Pay (CRDP) effective 1 September 2013.

2.  The applicant states:

   a.  He became aware he should be entitled to CRDP in early 2014.  When he called the finance center he was instructed to send them a letter, which he did.  The Defense Finance and Accounting Service (DFAS) Retired and Annuitant Pay Branch informed him that his 2014 Open Season Election form had been received; however, it was determined to be invalid because the form was received after their deadline.

   b.  He does not understand why he was denied CRDP because DFAS's website states CRDP is paid automatically and one does not have to apply for CRDP.  Based on the vague information from DFAS, he believes he should be receiving CRDP effective 1 September 2013.
   
   c.  He states he has no memory of receiving the letter DFAS claims to have sent him to make his election.  The election would be a no brainer because his Combat Related Special Compensation (CRSC) pay is less than 10 percent of the CRDP. 

3.  The applicant provides:

* Department of Veterans Affairs (VA) letter, dated 19 November 2013
* DFAS Retirement Account Statement
* DFAS CRSC and CRDP Payment Information Sheet
* DFAS CRDP Information Sheet
* Letter, dated 8 April 2014
* DFAS letter, dated 29 April 2014
* 2 pages of electronic mail (email)

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 retired honorably in the rank/grade of command sergeant major/E-9 after completing over 20 years of service. 

3.  The applicant provides:

   a.  A letter, issued by the VA, dated 19 November 2013, that states the VA and DFAS developed a method for making retroactive CRSC, CRDP, and VA disability payments previously withheld but now permitted by law.  Based on the information in the applicant's retired pay files and VA records, he was entitled to a retroactive compensation payment of $12,981.00.  The payment covered the period June 2012 through August 2013.

   b.  A letter, dated 8 April 2014, from the applicant to DFAS in which he states to the best of his knowledge he did not receive an open season letter or if he did, he did not understand what was at stake.

   c.  An email, dated 15 May 2014, in which the applicant informed DFAS that he has a 70 percent VA disability rating and over 20 years active army service; however, his VA entitlement was being withheld from his retired pay effective       1 September 2013.
   
   d.  An email which shows DFAS responded the following day and informed the applicant that DFAS records revealed a retroactive audit was conducted on his account in September 2013, where it was found that DFAS owed and paid the applicant $7,164.63 (after taxes) on 25 October 2014.  On 16 May 2014, the applicant requested DFAS review their response.
   
   e.  An email which shows on 19 May 2014, DFAS responded to the applicant's subsequent inquiry and stated based on his enrollment in CRSC, he was not entitled to CRDP.  At the beginning of each year a letter is mailed to the applicant offering him the opportunity to change from one program to the other.  DFAS received a letter from him in April 2014; however, the letter was received after the cutoff date for the CRSC/CRDP open season.  The applicant was sent a letter explaining that he was not eligible to make a change to receive full restoration of his retirement now that it had passed the open season.  He was informed he could send a request to his branch of service to increase his CRSC entitlement.  He was further instructed that he would have the opportunity to switch to CRDP (which is the program that removes the offset from his retirement) during the open season in 2015. 

4.  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 CRDP.  Members retired under disability provisions (Title 10, U.S. Code, chapter 61) must have 20 years of service.

5.  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
* CRDP 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 (unless retiree has chosen CRSC over CRDP)

6.  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 for CRDP, a member must be eligible for retired pay.  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 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. 

7.  The DFAS website states that retirees cannot receive both CRSC and CRDP. During an open season (usually in January), military retirees who are eligible for both payments can choose the one they want.  If a retiree qualifies to participate in open season, he or she will receive a letter and an election form in the mail.  When making a choice, the retiree should consider the benefit amount as well as taxability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been considered.

2.  Qualified members are automatically enrolled in the CRDP program to "phase in" benefits that gradually restored a retiree's VA disability offset until the phase in was completed in 2014.  

3.  Evidence shows the applicant completed 20 years or more of active Federal service and had obtained a VA disability rating of 50% or greater.  Therefore, he was entitled to CRDP.  DFAS conducted a retroactive audit on his account in September 2013, where it was found that DFAS owed and paid the applicant $7,164.63 (after taxes) on 25 October 2013.  
4.  At the beginning of each year a letter is mailed to qualified retirees (those qualifying for both programs) offering them the opportunity to change from one program to the other.  The applicant acknowledged to the best of his knowledge he did not receive an open season letter or if he did, he did not understand what was at stake.  DFAS received a letter from the applicant in April 2014; however, the letter was received after the cutoff date for the CRSC/CRDP open season.  He was further instructed that he would have the opportunity to switch to CRDP during the open season in 2015.

5.  The applicant's service and his sincerity are not in question.  However, there is no evidence he exercised due diligence as it appears the applicant had plenty of time to submit and/or to verify his request for CRDP was submitted in a timely and proper manner to DFAS.  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)                                         AR20140010753





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ABCMR Record of Proceedings (cont)                                         AR20140010753



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