IN THE CASE OF:
BOARD DATE: 9 July 2015
DOCKET NUMBER: AR20140021328
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, the widow of the deceased former service member (FSM), requests correction of the FSM's military records to show entitlement to full concurrent receipt of military retired pay and veterans' disability compensation (CRDP).
2. The applicant states she believes her husband was entitled to CRDP. She called a number at the Department of Veterans Affairs (VA) and was told to write to the Defense Finance and Accounting Service (DFAS) concerning this issue. The FSM received retired pay from March to November 1993 from the Army. The FSM was then rated 100 percent disabled and received veterans' disability until his death on 6 July 1994. She understands there was a subsequent law suit that resulted in the granting to veterans entitlement to receive both their retirement pay and veterans' disability pay. She would hope that the FSM was also eligible to receive both pays. She also argues that any law suit that helps one veteran should also help all veterans and their families.
3. The applicant provides copies of:
* State of Georgia Marriage License, issued in September 1977
* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 28 February 1993
* State of Georgia Certificate of Death for FSM, filed 13 July 1994
* Letter from the applicant to DFAS, dated 19 August 2014
* Letter from DFAS to the applicant, dated 10 November 2014
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. On 21 November 1969, the FSM enlisted in the Regular Army. He served on active duty until his retirement on 28 February 1993. He completed 23 years, 3 months and 10 days of creditable active duty service and attained the rank of command sergeant major, pay grade E-9.
3. On 6 July 1994, the FSM died.
4. The National Defense Authorization Act (NDAA) for Fiscal Year 2004, Subtitle D (Retired Pay and Survivor Benefits), section 641, provided for the phase-in of full CRDP. The NDAA did not provide for retroactive authorization of CRDP.
5. Title 10, U.S. Code, section 1414 provides that members who are eligible for retired pay who are also eligible for veterans' disability compensation for disabilities rated 50 percent or higher and have no less than 20 years of service are eligible to receive concurrent payment beginning 1 January 2004.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that the FSM was entitled to receive CRDP based on his disability rated at 100 percent disabling.
2. A review of the available evidence of record shows that the FSM retired in 1993 and died in 1994, approximately 10 years before the NDAA of 2004 that authorized CRDP. Unfortunately, the law did not provide for any retroactive payments of CRDP.
3. In view of the above, the applicant's request should be denied.
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) AR20140021328
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ABCMR Record of Proceedings (cont) AR20140021328
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