ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20160017988 APPLICANT REQUESTS: his 2016 Open Season election be corrected to show he elected Concurrent Retirement and Disability Pay (CRDP) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * A Defense Finance and Accounting Service (DFAS) response to an inquiry from his Senator * A Department of Veterans Affairs (VA) Notice of Disagreement * An Open Season notification letter from DFAS * A VA Claim Decision FACTS: 1. Applicant states: a. He was not notified in a timely manner that his individual unemployability award through the VA was discontinued. Based on his belief that it was still in place, when he was notified by DFAS that it was time to make his 2016 Open Season election of either CRDP or Combat Related Special Compensation (CRSC), he elected CRSC believing he would benefit from its tax advantaged status. Only after the Open Season closed was he notified that his individual unemployability award had been discontinued. b. He then tried to change his election to CRDP, but DFAS told him it was too late. Because the VA failed to notify him of its decision until February 2016, he was deprived of the opportunity to make an informed decision. It is unjust that he be penalized approximately $1,100.00 per month because the VA awarded him disability due to Agent Orange exposure during his service in Vietnam. 2. The applicant provides: a. A letter from DFAS, dated 20 October 2016, responding to an inquiry from his United States Senator. The letter states that retirees who are potentially eligible for both CRDP and CRSC, such as applicant, are afforded the opportunity to elect one or a. the other during annual Open Seasons which occur during the month of January. Once an election is made, it cannot be changed until the next Open Season. Changes in the member’s entitlement to CRDP or CRSC which occur after the Open Season period, to include changes in a member’s disability rating which have a retroactive effective date, shall not be a basis to alter a current election prior to the next annual Open Season. The letter also states that DFAS does have the authority to change applicant’s 2016 Open Season election, if such change is authorized by the Army Board for Correction of Military Records. b. A VA Form 21-0958 “Notice of Disagreement”, dated 20 May 2016, in which applicant informs the VA that he disagrees with the discontinuation of his individual unemployability and explains how its delay in notifying him impacted his Open Season election. As a consequence of his election of CRSC rather than CRDP, his retirement pay was cut in half. Everyone he has spoken to at DFAS agreed that reducing his retirement was absolutely wrong, but DFAS cannot fix it because the Open Season is past. The only way DFAS can rectify the situation and restore his full retired pay is if the VA reinstates his individual unemployability. c. A letter from DFAS, dated 18 December 2015, informing applicant of the 2016 Open Season and his opportunity to elect either CRDP or CRSC. The bottom of the letter informs him that he is currently in receipt of CRDP in the amount of $2,232.00 and that changing his entitlement to CRSC would result in the same monthly payment. If he wants to keep his current election no action is required. If he wants to change his entitlement, he needs to complete, sign, and return the entire letter to DFAS before 31 January 2016. On 4 January 2016, applicant signed the form and placed an “X” in the box electing to change his entitlement to CRSC. d. The first page of a letter, dated 12 February 2016, in which the VA informs applicant that it has made a decision on his claim for service connected compensation which it received on 8 October 2015. The VA granted service connection for a heart condition and assigned a 60% rating with an effective date of 8 October 2015. It also noted that because the applicant met the100% total evaluation for his combined service connected disabilities, his entitlement to individual unemployability is therefore discontinued effective 8 October 2015. 3. A review of applicant’s service record shows: a. He was transferred to the Retired Reserve effective 18 August 1996. b. He became eligible/entitled to receive non-regular retirement pay on 12 September 1997, his 60th birthday. 4. The Department of Defense Financial Management Regulation, Volume 7B, Chapter 64, Concurrent Retirement and Disability Payment (CRDP), paragraph 6405 states, in pertinent part, all members entitled to both CRDP and CRSC will be provided 1. an annual open season period during which the member may elect to change between the two programs. Eligible members will be notified of the opportunity to elect to change between CRDP and CRSC. The notification will be based on the entitlement information available at the time the notice is provided, and will specify the date that an election change will be effective. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence provided by the applicant and found within the military service record, the Board found that the applicant made a previous election and although he now wants to change that election, it is untimely; therefore, the Board concluded there was no error or injustice which would warrant making a change to the applicant’s record. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 0 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. REFERENCES: 1. Title 38, U.S. Code, section 5304, “Prohibition against duplication of benefits”, states in pertinent part, that except as provided in section 1414 of Title 10 or to the extent that retirement pay is waived under other provisions of law, not more than one award of pension, compensation, regular, or reserve retirement pay, or initial award of naval pension granted after 13 July 1943, shall be made concurrently to any person based on such person’s own service or concurrently to any person based on the service of any other person. 2. Title 38, U.S. Code, section 5305, “Waiver of retired pay” states, in pertinent part, that except as provided in section 1414 of Title 10, any person receiving pay pursuant to any provision of law providing retired or retirement pay to persons in the Armed Forces and who would be eligible to receive pension or compensation under the laws administered by the Secretary (of the Department of Veterans Affairs) if such person were not receiving such retired or retirement pay, shall be entitled to receive such compensation upon the filing by such person with the department by which such retired or retirement pay is paid of a waiver of so much of such person’s retired or retirement pay as is equal in amount to such pension or compensation. To prevent duplication of payments, the department with which any such waiver is filed shall notify the Secretary of the receipt of such waiver, the amount waived, and the effective date of the reduction in retired or retirement pay. 3. Title 10, U.S. Code, section 1413a, “Combat-Related Special Compensation” (CRSC), states, in pertinent part, that the Secretary concerned shall pay to each eligible combat-related disabled uniformed services retiree who elects benefits under this section a monthly amount for the combat-related disability of the retiree. The monthly amount to be paid to an eligible retiree is the amount of compensation to which the retiree is entitled under Title 38 for that month, determined without regard to any disability of the retiree that is not a combat-related disability. The amount paid to an eligible combat-related disabled uniformed services retiree for any month may not exceed the amount of the reduction in retired pay that is applicable to the retiree for that month under sections 5304 and 5305 of Title 38. 4. Title 10, U.S. Code, section 1414, “Members eligible for retired pay who are also eligible for veterans’ disability compensation for disabilities rated 50 percent or higher: concurrent payment of retired pay and veterans’ disability compensation” states, in pertinent part, a member or former member of the uniformed services who is entitled for any month to retired pay and who is also entitled for that month to veterans’ disability compensation for a qualifying service-connected disability is entitled to be paid both for that month without regard to sections 5304 and 5305 of Title 38. A person who is a qualified retiree under this section and is also an eligible combat-related disabled uniformed services retiree under section 1413a of this Title may receive special 1. compensation in accordance with that section or retired pay in accordance with this section, but not both. The Secretary concerned shall provide for an annual period (referred to as an open season) during which a qualified retiree shall have the right to make an election to change from receipt of special compensation in accordance with section 1413a of this Title to receipt of retired pay in accordance with this section or the reverse, as the case may be. Any such election shall be made under regulations prescribed by the Secretary concerned subject to approval by the Secretary of Defense. 5. The Department of Defense Financial Management Regulation, Volume 7B, Chapter 64, Concurrent Retirement and Disability Payment (CRDP), paragraph 6405 states, in pertinent part, all members entitled to both CRDP and CRSC will be provided an annual open season period during which the member may elect to change between the two programs. Eligible members will be notified of the opportunity to elect to change between CRDP and CRSC. The notification will be based on the entitlement information available at the time the notice is provided, and will specify the date that an election change will be effective. Changes in the amount of a member’s entitlement to either CRDP or CRSC, which occur after the close of an annual open season period, will not be the basis to alter a current election between CRDP and CRSC prior to the next annual open season. This limitation includes changes in a member’s VA disability rating, which have a retroactive effective date prior to the date that DFAS is notified of the change. The limitation in the prior sentence does not apply if maintaining the member’s most recent CRDP or CRSC election would result in the member incurring a retired pay debt or losing the CRDP or CRSC entitlement altogether. The CRDP entitlement represents the ability of an eligible military retiree to receive both retired pay and VA disability compensation without regard to the waiver and offset requirement of Title 38, U.S. Code sections 5304 and 5305. Accordingly, payments of CRDP are payments of retired pay and are taxable.