DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 7560-20 Ref: Signature Date Dear Petitioner: This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code. After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. A three-member panel of the Board, sitting in executive session, considered your application on 24 August 2021. The names and votes of the members of the panel will be furnished upon request. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record and applicable statutes, regulations, and policies. In addition, the Board considered the advisory opinion contained in Commander, Navy Personnel Command (NPC) memorandum 5420 PERS-836/022 of 21 June 2021 and your response to the opinion. In accordance with the DoD 7000.14-R FMR Volume 7B, Chapter 1, the Date of Initial Entry into Military Service (DIEMS) determines whether the retired pay base is the monthly basic pay of the member just before retirement or an average of the highest 36 months of basic pay applicable during the member’s career. For members who entered the military service on or after September 8, 1980, the retired pay base is generally the average of the highest three years (36 months) of monthly basic pay to which the member received for any 36 months of active service whether those months are consecutive or not. The years of service for computing retired pay for Regular retirement are generally the total of years of active service. On 13 February 1987, you enlisted for 8 years in the U.S. Naval Reserve, establishing your DIEMS. On 15 April 1987, you entered active duty establishing your Pay Entry Base Date (PEBD) and Active Duty Service Date (ADSD). In accordance with DoD 7000.14-R FMR Volume 7A, Chapter 66, the Military Retirement Reform Act of 1986, (henceforth referred to as reduced retirement (REDUX)), covered Uniformed Service members who first became members beginning on or after August 1, 1986 and before January 1, 2018. These members could elect, upon completion of 15 years of Active Duty (AD) in the Uniformed Services, to either retire under the High-3 retirement system or receive a $30,000 Career Status Bonus (CSB) and remain under the REDUX retired pay system. To be eligible for the opportunity to elect the CSB/REDUX, when the member completes 15 years of AD service, the member must simultaneously meet all the criteria for eligibility. A Uniformed Service member is eligible to make a CSB/REDUX Retirement election only when that member is serving on AD, first became a Uniformed Service member on or after August 1, 1986 (has a Date of Initial Entry to Military/Uniformed Service (DIEMS)/Date Initial Entry Uniformed Service (DIEUS) of August 1, 1986 or later), has completed 15 years of AD in the Uniformed Service, and is otherwise eligible, as determined by the Secretary of the Military Department concerned, to serve continuously on AD until the completion of 20 years of AD service. On 22 October 2009, the President, Physical Evaluation Board notified Chief of Naval Personnel that you were found unfit to perform the duties of your office, grade, or rank due to a physical disability. It was directed that you be placed on the Permanent Disability Retired List (PDRL) with a disability rating of 80% and an effective retirement date of 30 January 2010. On 4 November 2009, COMANVPERSCOM notified your command that the Secretary of the Navy has directed the Permanent Disability Retirement with disability at 80%. Release from Active duty 30 June 2010. Retirement effective 31 January 2010. You are competent. Disability has been determined to be not combat related. On 30 January 2010, you transferred to the PDRL with 22 years, 9 months, and 16 days. On 30 June 2010, Defense Finance and Accounting Service (DFAS) notified you that your account has been reviewed for the period January 2004 through May 2010. This review revealed that the DFAS part of your Concurrent Retired and Disability Pay (CRDP) and/or Combat-Related Special Compensation (CRSC) entitlements have been paid correctly to date. However, you may be due additional compensation from the Department of Veterans Affairs (DVA). All previous CRDP and CRSC entitlement payments have come from DFAS. DFAS has provided information to the DVA to enable them to determine if any additional entitlements are due. On 2 September 2016, DFAS notified you that they enclosed copies of all three CRDP audits conducted on your military retired pay account from 2010 through 2011. On 28 April 2017, DFAS notified you that retired pay for members placed on the PDRL is calculated using the formula shown on the worksheet provided. On 3 May 2017, Commander, Navy Personnel Command notified you that in accordance with the provisions of Title 10, U.S. Code, Section 1210, the Secretary of the Navy has determined that the disability for which you were placed on the Temporary Disability Retired List (TDRL) has stabilized and that your disability is now PERMANENT and rated at 80 percent disabling. Accordingly, you will be placed on the PDRL by reason of a permanent physical disability effective 30 January 2010 in the grade of E-7. On 21 November 2019, DFAS replied to your inquiry. Disability Retirees and Reserve/Guard members retiring at age 60 (or younger in some cases) are exempt from all provisions of the CSB/REDUX provisions except the 1 percent COLA reduction. A reduction in retired pay does not apply when the retiree falls under this provision. You were placed on the PDRL at the time of your retirement with a rating of 75%; therefore, the pay reduction is not reflected. However, any applicable COLA’s were reduced by 1%. Title 38 U.S.C. 5305 permits a member to waive military retired pay in order to receive compensation from the VA. A retiree receiving retired pay who is also eligible to receive disability compensation from the VA is barred from receiving concurrent payments of both retired pay and the VA benefit. The member must elect to waive that portion of retired pay that is equal to the amount of the VA benefit awarded in order to receive payments from the VA. CRDP is a restoration program that was established to restore retired pay that has been offset by Department of Veterans Affairs (VA) benefits. In order to be eligible for CRDP you must be receiving benefits from the VA and they must be withheld from your retired military pay. The VA has reported to us that you are currently receiving $4,279.71 per month in benefits, which exceeds your retired military pay amount of $3,146.00. Since your retirement is calculated on your disability, under Title 10, U.S. Code, section 1441, your CRDP has a special rule where CRDP entitlement must be limited to what you have been paid under any other provision of law had you not been retired for disability. On 13 December 2019, DFAS replied to the Honorable United States Representative regarding your inquiry. You retired on January 31, 2010, due to a physical disability and received a CSB. Retired military members who received a CSB are subject to a law commonly referred to as REDUX. This law reduces retired pay by 1% for each full year of service less than 30 years. Since you are a disability retiree, your gross retired pay is not subject to REDUX. However, your CRDP entitlement is subject to REDUX. A military retiree must waive a portion of their gross retired pay, dollar for dollar, by the amount of their entitlement to DVA compensation. This is a VA Waiver. CRDP allows for concurrent receipt of military retired pay and disability compensation from the DVA, for eligible military retirees. All military retirees receiving disability compensation from the DVA for a service-connected disability, rated at 50 percent disabling or greater, and with 20 years of qualifying service, are eligible for CRDP. You are eligible for CRDP but at a reduced rate since you received a CSB upon retirement. You requested your DIEMS be corrected to 13 February 1987; that your Gross Retired Pay be properly adjusted according to the appropriate DIEMS of 13 February 1987; that your Service Percent Multiplier be adjusted to reflect no reduction for CSB/REDUX or that you be retroactively paid appropriate to the correct DIEMS; and that DFAS be instructed to provide you with the appropriate amount of back pay within 30 days of decision based upon this petition; or that the Board constructively reinstate you to active duty until 2017 such that you can reach your full 30 years of service; and any other relief that is appropriate. The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, to include your assertions. However, the Board concluded that your DIEMS date already reflects 13 February 1987 and does not require correction. In accordance with DoD 7000.14R Volume 7B, your active duty retirement percentage is based on total active duty service, therefore back pay to 13 February 1987 is unauthorized. The Board concluded that you chose to receive a $30,000 CSB and remain under the REDUX retired pay system. Finally, the Board concluded that you were found unfit to perform the duties of your office, grade, or rank due to a physical disability; therefore, the Board concluded that constructively reinstating you to active duty until 2017 would be inappropriate. In this connection, the Board substantially concurred with the comments contained in the advisory opinion. You are entitled to have the Board reconsider its decision upon submission of new matters, which will require you to complete and submit a new DD Form 149. New matters are those not previously presented to or considered by the Board. In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. Sincerely, 10/01/2021 Deputy Director