BOARD DATE:  24 January 2020

		DOCKET NUMBER:  AR20170011190


APPLICANT REQUESTS: Correction of his record to show:

*	cancellation of the Veterans Affairs (VA) waiver from his retired pay
*	restoration of his retirement as a length of service with Concurrent Retired and 
Disability Pay (CRDP)
*	a personal hearing before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Self-authored letter
*	DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 
	16 April 2014
*	DA Form 31 (Request and Authority for Leave), dated 13 May 2014
*	Orders Number C-06-494804 and C-06-407937, dated 5 June 2014
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 
	17 August 2014
*	Congressional assistance request, dated 1 May 2017
*	Retiree account statement, dated 1 May 2017
*	Applicant letter to DFAS, dated 10 May 2017
*	Defense Finance and Accounting Service (DFAS) letter to the Honorable Mr. 
	Johnson, dated 8 November 2017
*	DA Form 5016 (Chronological Statement of Retirement Points), dated 
	14 November 2017
*	Department of Treasury letter, dated 14 March 2018
*	DFAS letter to the Honorable Mr. Burgess, dated 13 April 2018
*	Honorable Mr. Burgess letter to the applicant, dated 25 May 2018
*	Self-authored letter, dated 24 August 2018
*	Applicant spouse response to Congressional Liaison and Inquiries (CLI), dated 
11 December 2018
*	Email correspondence
*	Court document, dated 15 October 2019

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code (USC), section 1552(b); however, the Army Board For Correction of 
Military Records (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:

	a.  He was told by the PEB, a military attorney, and his Physical Evaluation Board 
Liaison Officer (PEBLO) he did not need to appeal the 20 percent disability rating he 
received from the Army because he already had over 20 years of active duty.  He was 
told at Fort Hood, TX not to worry because he was under CRDP and he would receive 
his full retirement and VA disability pay.  His PEB was not completed, their preliminary 
findings was to go ahead and retire; the PEB stated on the DA Form 199 “Soldier has 
accumulated over 7200 retirement points and this is equivalent to 20 years of active 
federal service,” the PEB process was completed and the process to retire was 
completed.  He was not given the opportunity to do all of his terminal leave, so he sold 
30 days.  His Reserve time of 6 years, 11 months, and 16 days was not included in his 
19 years, 6 months, and 28 days of active federal service.  He retired thinking he did a 
length of service retirement and qualified for CRDP as his military attorney, PEBLO, and 
retirement technician told him.  If he did not have 20 years of active duty, he was not 
supposed to be processed for retirement.  He did not want to get out until he had 30 
years of service.  He was at 26 years of service when he out-processed because he 
was already at 20 years of active service.  Title 10 USC, section 1176 states a Soldier 
that has more than 18 years of active service cannot be put out and is supposed to stay 
until the Soldier qualifies for length of service retirement.  He now has a $55,000.00 
debt, reported to the credit bureau and is waiting for when DFAS will garnish his 
disability check.  He is financially ruined and his family is going through hard times.  He 
did the whole retirement process, and received a flag, blue identification card, and 
retirement certificates.  He trusted the personnel at Fort Hood when they told him he 
was retiring with full CRDP and that was wrong.  

	b.  He retired with more than 20 years on active duty.  An amount of $448.00 for VA 
waiver is being taken out of his retirement by mistake.  The VA waiver ended for retirees 
with more than 20 years active duty, effective on 1 January 2014.  He had called the 
Defense Finance and Accounting Service (DFAS) lots of times since 2014 and most of 
the times, they did not know or never heard of the VA waiver.  Most of the time they 
transferred him to someone else or hung up the phone.  The VA waiver was a phase in 
period that ended in January 2014 as stated in the Department of Defense Fiscal Year 
2016 compensation and benefits handbook on page 25, My Army Benefits and the 
DFAS website.  The only retirees not eligible for CRDP are those retirees who retired for 
medical reasons (under Title 10 USC, chapter 61) with less than 20 years of service.
3.  As it pertains to CRDP, effective on 1 January 2004, eligible military retirees are 
entitled to concurrent receipt of both retired pay and VA disability compensation.  The 
CRDP program provided for a 10-year phase-out of the offset to retired pay due to 
receipt of VA disability compensation.  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 effective January 2014.  
You must be eligible for retired pay to qualify for CRDP.  If you are retired with a VA 
disability rating of 50% or greater you qualify for CRDP.  CRDP allows military retirees 
to receive both military retired pay and VA compensation.  The member may be entitled 
to CRDP if that member is a regular retiree.  This Board does not determine entitlement 
to CRDP.  An audit of the members account requires researching pay information from 
both DFAS and VA.  CRDP will not be discussed any further in the record of 
proceedings.

4.  A review of the applicant’s official records show the following on:

	a.  On 26 February 1988, the applicant enlisted in the U.S. Army Reserve (USAR), 
and entered Active Duty for Training (ADT) on 10 March 1988.

	b.  On 14 July 1988, the applicant was honorably released from ADT to his USAR 
unit.  He completed 4 months and 5 days of net active service.

	c.  On 26 January 1989, the applicant enlisted in the Regular Army (RA).

	d.  On 19 December 1991, the applicant was honorably released from active duty 
and transferred to the USAR Control Group (Reinforcement).  He completed 2 years, 10 
months, and 26 days of net active service with 4 months and 6 days of prior active 
service.

	e.  On 14 October 1993, the applicant again enlisted in the RA.

	f.  On 9 December 1996, the applicant enlisted in the USAR.

	g.  On 13 March 1997, the applicant was honorably discharged from active duty by 
reason of reduction in force.  He completed 3 years and 5 months with 3 years and 3 
months prior active service and 2 years, 4 months, and 4 days of prior inactive service.

	h.  On 11 July 2002, Orders Number R-07-204325, issued by the USAR Personnel 
Command, St. Louis, MO, ordered the applicant to active duty in the Active 
Guard/Reserve (AGR) for a period of 3 years.  His record is void of any orders 
extending or placing the applicant on an indefinite AGR tour.

	i.  On 28 November 2013, the U.S. Army Human Resources Command (HRC), Fort 
Knox, KY, issued the applicant a Notification of Eligibility for Retired Pay at Age 60, 
which notified him he had completed the required years of qualifying Reserve service 
and was eligible for retired pay on application at age 60.

	j.  On 16 April 2014, a PEB convened and found the applicant physically unfit and 
recommended a rating of 20 percent and his disposition be permanent physical 
disability retirement.  DA Form 199 shows the following:

*	Basic active service date/Pay entry basic date – 26 February 1988
*	Component – USAR/AGR
*	DA Form 199 in his official record was a reconsideration
*	he had accumulated over 7200 points and this was equivalent to 20 years of 
active federal service
*	the applicant concurred and waived a formal hearing of his case
*	he did not request reconsideration of his VA rating

	k.  On 17 August 2014, the applicant was honorably retired from active duty by 
reason of disability, permanent (enhanced).  He completed 12 years and 14 days of net 
active service with 7 years, 6 months, and 14 days of prior active service, and 6 years, 
11 months, and 16 days of prior inactive service.

	l.  The applicant’s records are void of any USAR orders ordering him to active duty 
for a period greater than 90 days.

5.  The applicant provides:

	a.  DA Form 31 showing the applicant used 37 of 67 days accrued leave for his 
transition from the Army.

	b.  Orders Number C-06-494804, issued by HRC, Fort Knox, KY, reassigned the 
applicant to the Retired list and transferred him to the USAR Control Group (Retired) 
due to a permanent physical disability effective 18 August 2014.  These orders show the 
applicant as having a voluntary retirement with 19 years, 6 months, and 28 days.  Title 
10 USC, section 1405 (Years of Service) was 20 years, 3 months, and 1 day.  Orders 
Number C-06-407937 reattached the applicant to Fort Hood, TX for separation 
processing.

	c.  Congressional assistance request wherein the applicant solicited assistance from 
the office of the Honorable Mr. Johnson in resolving the VA waiver money being 
deducted from his retiree account.

	d.  Retiree account statement showing the $448.00 VA waiver being deducted from 
the applicant’s account.

	e.  Applicant letter to DFAS that states in pertinent part, he was requesting how to 
recover the VA waiver because it was wrongfully deducted for over 2 years.  The DFAS 
official replied and explained to the applicant his medical retirement pay was based on 
rank, years of service, and a disability percent, and by law CRDP could only restore 
standard retirement pay, the disability portion of the calculation is required to be waived 
if the member is receiving a VA disability award.  It was referred as a partial VA waiver.  
The DFAS official also explained chapter 61 disability being a retiree with 20 or more 
years of service being able to be paid concurrently.  The applicant then provided his 
interpretation of CRDP entitlements.

	f.  DFAS letter to the Honorable Mr. Johnson that states in pertinent part:

		(1)  The applicant requested an explanation of the VA waiver as noted on his 
retiree account statement.  He was placed on the permanent disability retired list, 
effective 18 August 2014.  He is referred to as a chapter 61 retiree.  A member who is 
retired under chapter 61 may, if eligible, also receive CRDP, but only to the extent of 
what he or she would have received had they not retired for disability.  In other words, 
by law, they can only restore retired pay up to the amount the member would have 
received based on his or her years of service (at the time of retirement).  Therefore, 
they adjusted his CRDP entitlement to $1,879.00.  

		(2)  They reviewed his retired pay record, and determined that, unfortunately, he 
was not actually eligible for CRDP.  Thus, he should not have been receiving military 
retired and VA disability compensation.  As stated above, CRDP required at least a 50 
percent VA rating and 20 years of qualifying active service.  The applicant only has 19 
years, 6 months, 28 days.  Further, he was not yet 60; therefore he does not qualify for 
CRDP at this time.  The applicant’s VA waiver was not applied to his retired pay during 
1 October 2014 through 30 September 2017.  As a result, he incurred an overpayment 
debt of $55,311.88.  Since his retired pay account is suspended [VA compensation is 
greater than gross retired pay], his debt was referred to their debt and claims 
management office for collection.

	g.  DA Form 5016 showing the applicant had 22 years, 8 months, and 1 day of 
qualifying service for retirement.

	h.  Department of Treasury letter showing the applicant had a debt to the U.S. 
Government in the amount of $72,099.01.



	i.  DFAS letter to the Honorable Mr. Burgess that states in pertinent part:

		(1)  They audited the applicant’s military retired pay and VA disability 
compensation and determined he was overpaid $55,311.88.  This overpayment was 
due to the VA waiver not being withheld correctly from his military retired pay from 
1 October 2014 through 30 September 2017.  The applicant believes he should be 
eligible for CRDP, allowing for concurrent receipt of military retired pay and disability 
compensation from the VA for eligible military retirees.  It is a restoration of military 
retired pay.  Retirees eligible for retired pay as a former member of the Reserve or Army 
National Guard component, with 20 years of qualifying service, must be at least 60 
years of age to be eligible for CRDP.

		(2)  When his account was originally created, it showed his active service time as 
20 years, 3 months, and 1 day, and as a result he had CRDP active on his account.  In 
October 2014, a military pay technician corrected his account to show his active time as 
19 years, 6 months, and 28 days, which matches the time shown on his retirement 
orders.  This change should have stopped the CRDP payments, but it did not.  As a 
result they continued paying him CRDP, which resulted in an overpayment of military 
retired pay, creating the debt.  Although he has a disability rating of 100 percent by the 
VA, he has 19 years, 6 months, and 28 days of qualifying active service.  As a 
Reservist, he would not be eligible for CRDP until he is 60 years old, on 9 February 
2028.

	j.  Letter response from the Honorable Mr. Burgess wherein he informed the 
applicant about an interim response from the Army Review Boards Agency.

	k.  Self-authored letter that states in pertinent part:

		(1)  He would be homeless and on the street within three months of the date on 
the letter.  A lot of medical issues for his wife are on hold because they cannot afford to 
pay the copays and TRICARE costs more now.  The PEB at Fort Sam Houston, TX said 
he did not need to complete a continuation on active duty packet to stay on active duty 
because he already had 20 years of active duty.  

		(2)  He is trying to stop the garnishments and has contacted a lot of organizations 
and most cannot help, they usually tell him he has to wait for the Board.  One 
garnishment for the $72,000.00 has already begun and another will soon start for the 
Survivor Benefit Plan.  He just wants the garnishments to stop.  

	l.  Applicant’s spouse response to CLI that states in pertinent part:

		(1)  Her husband did not receive his retirement check after being retired for three 
years and receiving a paycheck monthly.  After multiple phone calls and seeking help 
from the Honorable Mr. S- J-, they received a letter on 8 November 2017 stipulating her 
husband did not serve 20 years on active duty (26 years total) with Reserve time, which 
is incorrect.  The letter also stipulated he owed the Government $55,311.88, but the 
new amount is $72,099.01 and it had been sent to collections as well as being reported 
to the credit agencies, which has ruined his credit score by 50 points.  She also adds 
that during the three years of collecting his retirement pay a $448.00 VA waiver was 
taken out monthly.  Unfortunately, it took them almost two years to find out why the VA 
waiver was being taken out of his paycheck monthly.

		(2)  Her husband did serve his full 20 years of active duty and the situation has 
caused them a great deal of emotional stress as well as financial issues considering 
they both have post traumatic stress disorder, and the fact that someone at Fort Hood 
failed to do their job, and now they are being punished for that mistake without any 
regard or accountability from the person who made the error.  Currently the Department 
of Treasury is taking 15 percent out of her husband’s social security check every month 
until they pay back the $72,099.01, and they still have creditors contacting them for that 
amount.  Additionally, every month they pay $152.00 for the Survivor Benefit Plan (SBP) 
and they have requested multiple time for the SBP to stop, and they supplied the letter 
saying her husband did not serve 20 years.  So why are they being forced to pay on an 
insurance plan if they are no longer collecting retirement? 

		(3)  This financial burden that has placed upon them, almost costed them a 
divorce, not to mention all the unnecessary emotional stress.  So she is not quite sure 
why this does not qualify as a case to be expedited considering that they are losing, 
almost $3,000.00 a month.  Thousands not hundreds of dollars a month.  It was almost 
to the point where they were going to be another homeless Soldier and his family living 
on the streets.  Her husband served in the Reserves for 6 years, 11 months and                          
16 days that were not included into his 19 years, 6 months and 28 days of actual active 
federal service.  He was told by the PEB, he did his length of service for retirement and 
the PEBLO and the retirement technician finished his paperwork at Fort Hood in the 
transition office.  If he did not complete his 20 years of active duty, then why did both 
the PEB board and PEBLO process him out?  Her husband did not want to process out 
until he did 30 years of service, and they pushed him out at 20.

	m.  Email correspondence wherein Captain D- C- was following up to see if the 
applicant had signed his DA Form 199 to waive the formal board, also to make sure his 
final DA Form 199 indicated permanent disability retirement instead of severance pay 
because his point total allowed for an active duty retirement.  The PEBLO on the email 
states the applicant was at the 7200 points threshold and qualified for an active duty 
retirement.

	n.  Court document showing a lawsuit that was field against the applicant by pioneer 
services for an overdue amount of $12,676.24.

6.  Title 38, Code of Federal Regulations (CFR), 3.750 (Entitlement to Concurrent 
Receipt of Military Retired Pay and Disability Compensation) states in:

	a.  Section b(3) (Chapter 61 disability Retirees retiring with less than 20 years of 
service) states Veterans who receive disability retired pay under Title 10 USC, chapter 
61 (Retirement or separation for physical disability) with less than 20 years of creditable 
service are not eligible for concurrent receipt of military retired pay and disability 
compensation.
	
	b.  Section c(1) (When a waiver is necessary) states a waiver of military retired pay 
is necessary in order to receive disability compensation when a Veteran is eligible for 
both military retired pay and disability compensation but is not eligible under paragraph 
(b)(1) (Disability rated at 50 percent or more) or (b)(2) (Chapter 61 disability retirees 
retiring with 20 or more years of service) of this section to receive both benefits at the 
same time.

7.  Title 10 USC, section 1176 (Enlisted members: retention after completion of 18 or 
more, but less than 20, years of service) (b) Reserve members in active status) states a 
Reserve enlisted member serving in an active status who is selected to be involuntarily 
separated (other than for physical disability or for cause), or whose term of enlistment 
expires and who is denied reenlistment (other than for physical disability or for cause), 
and who on the date on which the member is to be discharged or transferred from an 
active status is entitled to be credited with at least 18 but less than 20 years of service 
computed under section 12732 of this title, may not be discharged, denied reenlistment, 
or transferred from an active status without the member’s consent.

8.  Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) 
chapter 12 (Retirement for length of service) sets policies and procedures for voluntary 
retirement of Soldiers because of length of service and governs the retirement of 
Soldiers (Active Army, Army National Guard, and USAR) who are retiring in their 
enlisted status.  

	a.  Paragraph 12-3(c) years of service for retirement are computed by adding all 
active Federal service in the Armed Forces.  Soldiers must complete at least 20 years of 
active Federal service by the requested retirement date.

	b.  Paragraph 12-26 (Periods not creditable for retirement) service in a Reserve 
component not on active duty, active duty for training, and other full-time training duty.

9.  The VA website provides the following information in regards to CRDP.  The member 
may be entitled to CRDP as a Reservist with 20 qualifying years of service, who has a 
disability rating of 50 percent or greater and who has reached retirement age (in most 
cases the retirement age for Reservists is 60).

10.  AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the 
ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of 
the ABCMR.

BOARD DISCUSSION:

1.  After reviewing the application and all supporting documents, the Board found that 
relief is warranted.  The applicant’s date of separation should be changed to 
17 February 2015 and placed on the retired list on 18 February 2015, with voluntary 
retirement at 20 years 00 months and 28 days; correct his DD Form 214 accordingly to 
show on line 12c his separation date as 20150217 and the net active service this period 
on line 12d as 8 years, 00 months and 14 days; and make any other calculation 
corrections necessary based on a date of separation of 17 February 2015 and voluntary 
retirement at 20 years 00 months and 28 days; and provide him active duty pay and 
benefits from 17 August 2014 to 17 February 2017 to include payment for leave accrued 
during that time.  The applicant’s CRDP should be restored and any debt for CRDP 
cancelled and any debt funds collected refunded to the applicant.  However, CRDP that 
has been paid during the period of 17 August 2014 to 17 February 2015 will be 
deducted from his active duty pay for the same period.

2.  It is noted that the applicant’s spouse also addressed SBP payments that have been 
made since retirement that would provide her benefits if the applicant should become 
deceased.  Since the applicant did not make any request concerning SBP, this Board 
has taken no action on SBP.

3.  The applicant's request for a personal appearance hearing was carefully considered.  
In this case, the evidence of record was sufficient to render a fair and equitable 
decision.  As a result, a personal appearance hearing is not required to serve the 
interest of equity and justice in this case. 
?
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	:X	:X:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a 
recommendation for partial relief.  As a result, the Board recommends that all 
Department of the Army records of the individual concerned be corrected by:

     a.  Showing the applicant’s date of separation as 17 February 2015 and placed on 
the retired list on 18 February 2015 with voluntary retirement at 20 years 00 months and 
28 days

     b.  Correcting his DD Form 214 to show on line 12c his separation date as 20150217 
and the net active service this period on line 12d as 8 years, 00 months and 14 days

     c.  Make any other calculation corrections necessary based on a date of separation 
of 17 February 2015 and voluntary retirement at 20 years 00 months and 28 days

     d.  Correct his retirement points statement to show this additional 6 month active 
duty from 17 August 2014 to 17 February 2015

     e.  Provide him active duty pay and benefits from 17 August 2014 to 
17 February 2015 to include payment for leave accrued during that period of time

     f.  Restore the applicant’s CRDP effective 18 February 2015, cancel any CRDP debt, 
and refund to him any CRDP debt funds collected

     h.  Deduct from his active duty pay for the period 17 August 2014 to 
17 February 2015 any CRDP paid for this period of time



2.  The Board further determined the evidence presented is insufficient to warrant a 
portion of the requested relief.  As a result, the Board recommends denial of so much of 
the application that pertains to a personal appearance before the board.



		  
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, USC, 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 ABCMR determines it would be in the 
interest of justice to do so.

2.  Title 38, Code of Federal Regulations (CFR), 3.750 (Entitlement to Concurrent 
Receipt of Military Retired Pay and Disability Compensation) states in:
	
	a.  Section b(3) (Chapter 61 disability Retirees retiring with less than 20 years of 
service) states Veterans who receive disability retired pay under Title 10 USC, chapter 
61 (Retirement or separation for physical disability) with less than 20 years of creditable 
service are not eligible for concurrent receipt of military retired pay and disability 
compensation.

	b.  Section c(1) (When a waiver is necessary) states a waiver of military retired pay 
is necessary in order to receive disability compensation when a Veteran is eligible for 
both military retired pay and disability compensation but is not eligible under paragraph 
(b)(1) (Disability rated at 50 percent or more) or (b)(2) (Chapter 61 disability retirees 
retiring with 20 or more years of service) of this section to receive both benefits at the 
same time.

3.  Title 10 USC, section 1176 (Enlisted members: retention after completion of 18 or 
more, but less than 20, years of service) (b) Reserve members in active status) states a 
Reserve enlisted member serving in an active status who is selected to be involuntarily 
separated (other than for physical disability or for cause), or whose term of enlistment 
expires and who is denied reenlistment (other than for physical disability or for cause), 
and who on the date on which the member is to be discharged or transferred from an 
active status is entitled to be credited with at least 18 but less than 20 years of service 
computed under section 12732 of this title, may not be discharged, denied reenlistment, 
or transferred from an active status without the member’s consent.

4.  Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) 
chapter 12 (Retirement for length of service) sets policies and procedures for voluntary 
retirement of Soldiers because of length of service and governs the retirement of 
Soldiers (Active Army, Army National Guard, and USAR) who are retiring in their 
enlisted status.  

	a.  Paragraph 12-3(c) years of service for retirement are computed by adding all 
active Federal service in the Armed Forces.  Soldiers must complete at least 20 years of 
active Federal service by the requested retirement date.
	b.  Paragraph 12-26 (Periods not creditable for retirement) service in a Reserve 
component not on active duty, active duty for training, and other full-time training duty.

5.  The VA website provides the following information in regards to CRDP.  The member 
may be entitled to CRDP as a Reservist with 20 qualifying years of service, who has a 
disability rating of 50 percent or greater and who has reached retirement age (in most 
cases the retirement age for Reservists is 60).

6.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military 
records by the Secretary of the Army, acting through the ABCMR.  The ABCMR may, in 
its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it 
states in paragraph 2-11 that applicants do not have a right to a hearing before the 
ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice 
requires.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20170011190


12

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


1