IN THE CASE OF: BOARD DATE: 17 January 2020 DOCKET NUMBER: AR20170003143 APPLICANT REQUESTS: Correction of her record to show cancellation/remission of her disability severance pay debt. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Self-authored letter in lieu of DD Form 149 (Application for Correction of Military Record) * Orders Number M-050-0090, dated 19 February 2003 * Orders Number 238-0156, dated 25 August 2004 * DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 30 August 1983 and 25 August 2004 * Orders Number 257-0177, dated 13 September 2012 * DD Form 215 (Correction to DD Form 214), dated 10 December 2012 * Army Board for Correction of Military Records (ABCMR) Docket Number AR20150007903, dated 21 June 2016 * Combat Related Special Compensation (CRSC) application, dated 29 November 2016 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states she has not been receiving the full amount of CRSC. She is currently receiving $488.00 monthly, but was receiving about $200.00 initially. The Defense Finance and Accounting Service (DFAS) has recouped all of the CRSC retroactive pay she was entitled to for severance pay. She has sent DFAS-Cleveland a letter with the waiver/remission form requesting that she no longer be subject to pay the severance pay because it was given to her in error. Also, the Army Human Resources Command (HRC) CRSC office sent her a letter stating they would start recouping $117.00 monthly for the severance pay beginning in February. She states she is a 100% disabled veteran. She states DFAS has acknowledged receipt of the waiver/remission form, so according to the form, all attempts to collect the severance pay are supposed to cease until her complaint is satisfied. 3. A review of the applicant’s official records shows the following: a. On 28 January 1983, the applicant enlisted in the U.S. Army Reserve (USAR) and served in various positions. b. On 5 March 2003, the USAR Personnel Command issued the applicant a Notification of Eligibility for Retired Pay at Age 60, notifying her she had completed the required years of qualifying Reserve service and was eligible for retired pay upon application at age 60. c. On 10 March 2004, Orders Number A-03-402178, issued by the U.S. Army Human Resources Command (HRC), St. Louis, MO, ordered the applicant to active duty to the Medical Activity Holding Company, Fort Knox, KY, for active duty medical extension. d. On 16 July 2004, an informal reconsideration of the applicant’s Physical Evaluation Board (PEB), dated 17 June 2004 (replaced by the current DA Form 199 (PEB Proceedings)), convened and the PEB found the applicant physically unfit and recommended a combined rating of 10% and her disposition be separation with severance pay if otherwise qualified. The DA Form 199 also informed her since her disability rating was less than 30% and she had 20 qualifying years for Reserve retirement she had the option to accept the disability severance pay and forfeit her Reserve retirement or be placed in an inactive Reserve status and receive Reserve retired pay at age 60. If she elected to transfer to the inactive Reserve no disability compensation would be computed. e. On 25 August 2004, Orders Number 238-0156, issued by Headquarters, U.S. Army Center and Fort Knox, KY, reassigned the applicant to the U.S. Army transition point for transition processing. The applicant was authorized disability severance pay in the pay grade of staff sergeant (SSG)/E-6 based on 8 years, 6 months, and 23 days of service for a 10% disability rating. f. On 25 August 2004, the applicant was honorably discharged from the USAR by reason of disability, severance pay. Item 18 (Remarks) shows severance pay in the amount of $50,576.40. g. On 29 March 2012, the Department of Defense Physical Disability Board of Review reviewed and recommended to the Deputy Assistant Secretary Army Review Boards that the applicant’s separation be re-characterized to permanent disability retirement with a combined rating of 30% effective the date of the applicant’s original, medical separation for disability with severance pay (25 August 2004). Pay and allowances would be adjusted to account for recoupment of severance pay. h. On 13 September 2012, Orders Number 257-0177, issued by Headquarters, U.S. Army Garrison Command, Fort Knox, retired the applicant for permanent physical disability effective 25 August 2004. i. On 11 April 2013, the applicant petitioned HRC, Fort Knox, KY for a CRSC claim and HRC found there was no documentation to show a combat related event caused her conditions. j. On 10 September 2013, HRC reviewed the applicant’s original 11 April 2013 claim and determined her chronic lower back pain was combat-related at a 20% rating in alignment with the applicant’s Veterans Affairs (VA) claim adjudication. k. On 8 November 2013, by letter, DFAS informed the applicant an audit had been conducted on her account to determine if she were due any retroactive payments. Federal law prohibited military members from receiving both severance and retirement payments for the same period of service and they were required by law to recoup the severance payments she received. Their records reflected she received $50,576.40 and at that time, the VA had recouped $0.00 and DFAS had recouped $131.17 for a remaining balance of $50,445.23. Due to a new CRSC letter, she was due a retroactive credit in the amount of $2,295.00, which they recouped and left a balance of 48,150.23. l. On 17 December 2019, the analyst of record inquired with DFAS pertaining to the applicant’s original disability severance pay debt. DFAS responded confirming the applicant’s original debt was $50,576.40 and the current remaining balance was $29,242.72. 4. The applicant provides: * Orders Number M-050-0090, issued by the 640th Area Support Group, ordered the applicant to active duty to report to Camp Atterbury, IN, mobilized for Operation Enduring Freedom * DD Forms 214 showing the applicant’s periods of active duty service and severance pay * DD Form 215 showing the applicant’s DD Form 214 ending on 25 August 2004 was corrected to show her disability with severance pay discharge was changed to a permanent disability retirement * ABCMR Docket Number AR20150007903 wherein the applicant petitioned the Board for CRSC effective on 25 August 2004 and a reduction to the amount of severance pay being recouped, and on 21 June 2016, the Board denied the amount of severance pay being recouped since it is the policy of the Board to not disadvantage an applicant by making him or her any worse off for having applied for a correction to their record * 2016 CRSC packet submitted to HRC due to not being awarded CRSC for all of the applicant’s combat related conditions 5. On 31 October 2019, HRC provided a letter to the Board that stated: a. the applicant was awarded CRSC at 50 percent in November 2017 and in May 2019, she requested CRSC reconsideration and was disapproved since she did not include documentation which supported her remaining conditions were caused by a specific combat related event. Though the VA may approve the applicant as 100% disabled for service-connected disabilities, this does not automatically qualify the conditions as combat-related disabilities for CRSC. b. the letter the applicant provided to the Board states she wants her severance pay to be forgiven and that she is losing CRSC pay due to having to pay back her severance pay. The CRSC office does not manage severance pay so is unable to provide the Board with an opinion on the subject. The HRC CRSC office does not determine the amount of compensation a Soldier receives, but only the CRSC percentage. DFAS calculates payment and notifies the retiree of the monies they will receive as a result of their approved CRSC percentage. The HRC CRSC office informed the applicant that she must contact and remedy her debt issue through the DFAS process. A copy of the letter from HRC is provided. c. In addition, the applicant’s letter to the Board states the HRC CRSC office sent her a recoupment letter, but the HRC CRSC office does not send letters reference payment. The letter the applicant references must have been sent to her from DFAS. 6. See applicable references below. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found insufficient evidence to support a recommendation for relief. The Board noted that under U.S. Code, a Soldier may not receive both severance and retirement payments for the same period of service. As a result of the correction to her record to show she was retired for disability instead of discharged with severance pay, she is obligated to repay the severance pay. The Board further noted insufficient evidence of error in the amount of CRSC she has been authorized. By a preponderance of the evidence, the Board determined there is no error or injustice in requiring her to repay the severance pay she received. 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. 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 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Department of Defense Financial Management Regulation (DODFMR) section 040602 (Recoupment of Disability Severance Pay) states: a. When the Secretary concerned approves a recommendation from the Physical Disability Board of Review (PDBR) to award military disability retirement, the DFAS must take action to recoup any disability severance pay previously paid to that member. b. In most cases, members entitled to disability severance pay will also qualify for VA disability compensation. In order to avoid duplicate collection, the DFAS will reduce the recovery amount of disability severance pay by any amount already separately recovered by VA through reduction of VA disability compensation. In such cases, the amount deducted by the VA from the disability compensation will reduce the gross amount of disability severance pay to be recouped by DOD. c. The DFAS will first apply the entire amount of any retroactive retired pay and/or CRSC entitlement to any required recoupment of disability severance pay without regard to the percentage limitations. In determining the retroactive entitlement to retired pay, service members must be treated as though they were retired on the original date of separation, without regard to any disability severance payment received or any reduction in VA disability compensation to recoup previously paid disability severance pay. In order to determine the amount subject to recoupment, as well as any amount payable to a member, DFAS will determine the amount of retired pay that would have been available had the member originally been retired instead of separated. The total amount to recoup will be the full gross amount of disability severance pay originally paid to the member. d. VA will make no deduction in the case of disability severance pay received by a member for a disability incurred in the line of duty in a combat zone or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense. 3. Army Regulation 600-4 (Remission or Cancellation of Indebtedness) states indebtedness to the U.S. Army that may not be remitted or canceled under Title 10 USC, section 4837 is a debt incurred while not on active duty or in an active status. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170003143 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1