IN THE CASE OF: BOARD DATE: 11 February 2020 DOCKET NUMBER: AR20180000704 APPLICANT REQUESTS: entitlement to severance pay; in effect, he requests his disabilities be considered combat-related APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Enlisted Record Brief (ERB) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DA Form 199 (Physical Evaluation Board (PEB) Proceedings) * Physical Disability Information Report * Order# * Disability Evaluation System Proposed Rating * Combat Related Special Compensation Decision letter * Department of Veterans Affairs (VA) Benefits Estimate letter FACTS: 1. The applicant states that during his medical retirement processing, he was required to waive his entitlement to severance pay so that it would not be recouped by the VA. He contests that the disabilities for which he was medically retired for have since been determined to have been incurred in the line of duty, in a combat zone and during the performance of combat related operations. As such, in accordance with (IAW) 10 U.S. Code 1212, he is entitled to full severance pay without VA deduction and funds received are further excluded from Federal taxable income IAW 26 U.S Code 104. He has repeatedly attempted to address this through both Defense Finance and Accounting Services (DFAS) and the Human Resources Command (HRC); however, they were unable to assist. He feels that the error was made by his Physical Evaluation Board Liaison Officer (PEBLO) who was unfamiliar with the criteria associated with combat related injuries and as a result advised him incorrectly. 2. A review of the applicant’s available service records reflects the following on: * 22 February 2008 – he enlisted in the Army Reserve * 4 March 2008 – he was ordered to active duty * 8 December 2011 – a PEB was conducted; he was found physically unfit for continued military service * 9 January 2012 (Order#) – he was released from active duty effective 27 February 2012 due to a physical disability * 28 February 2012 – he was placed on the retired list; credited with 3 years 11 months and 24 days of active service 3. The applicant provides the following a: * Enlisted Record Brief (ERB) dated 1 February 2012 – reflective of a deployment to Iraq from 5 December 2008 through 15 November 2009 * DD Form 214 (Certificate of Release or Discharge from Active Duty) – reflective of 3 years 11 months and 24 days of active federal service; retirement due to physical disability * DA Form 199 (Physical Evaluation Board (PEB) Proceedings) dated 8 December 2011 – reflective of 3 combat related injuries (onset during deployment due to a fall from a military vehicle); however, in section# 10 the board recommended that: * the disability did not result from a combat related injury as defined in 26 U.S Code 104 and for the purposes of 10 U.S. Code 10216 * the Soldier’s retirement is not based on a disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war * Physical Disability Information Report dated 3 February 2012 – reflective of the following: * disability is not based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law * disability did not result from a combat related injury as defined in 26 USC 104 * Order# dated 9 January 2012 – reflective of him being released from active duty effective 27 February 2012 due to a physical disability * Disability Evaluation System Proposed Rating dated 12 October 2011 – reflective of the injuries or illnesses that the Department of Veterans Affairs (VA) are currently providing a rating for * Combat Related Special Compensation (CRSC) Decision letter dated 13 June 2017 – reflective of HRC approving his claim for CRSC entitlements effective March 2012; documentation verifies disability as combat related * VA Benefits Estimate letter – reflective of the following statement as identified by the applicant “your monthly VA compensation will not be reduced for any unfitting disabilities the PEB determines were incurred in combat” 4. See applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, the disability evaluation system proceedings noting the nature of his injury and the cause, the determination of the PEB pertaining to combat (item 10) and the HRC determination regarding his CRSC claim. The Board considered the policy and law related to disability retirement, separation pay, CRSC and recoupment of disability separation pay. Considering all of the above, the Board found the applicant was medically retired for his unfitting conditions and found no evidence of error in item 10 of the applicant’s PEB proceedings regarding the combat related nature of his unfitting conditions. Based on a preponderance of evidence, the Board determined no correction was required as a result of error or injustice. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 26, U.S. Code, section 104, authorizes special rules for combat-related injuries for compensation for injuries or sickness. For purposes of this subsection, the term “combat-related injury” means personal injury or sickness (A) which is incurred (i) as a direct result of armed conflict, (ii) while engaged in extra-hazardous service, or (iii) under conditions simulating war; or (B) which is caused by an instrumentality of war. 2. Title 10, U.S. Code, section 1413a, states 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 determined under subsection (b). In this section, the term "combat-related disability" means a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that (1) is attributable to an injury for which the member was awarded the Purple Heart; or (2) was incurred (as determined under criteria prescribed by the Secretary of Defense) (A) as a direct result of armed conflict; (B) while engaged in hazardous service; (C) in the performance of duty under conditions simulating war; or (D) through an instrumentality of war. 3. 10 U.S. Code 1212 (Disability Severance Pay) states that upon separation from the service under section 1203 or 1206 of this title a member is entitled to disability severance pay computed by multiplying: * the member's years of service computed under section 1208 of this title (subject to the minimum and maximum years of service provided for in subsection (c) * by the highest of the following amounts: * twice the amount of monthly basic pay to which he would be entitled if serving on active duty on the date when he is separated and in the grade and rank In which he was serving on the date when his name was placed on the temporary disability retired list, or if his name was not carried on that list, on the date when he is separated * twice the amount of monthly basic pay to which he would be entitled if serving on active duty on the date when his name was placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is separated, and in any temporary grade or rank higher than that described in clause (A), in which he served satisfactorily as determined by the Secretary of the military department or the Secretary of Homeland Security, as the case may be, having jurisdiction over the armed force from which he is separated * twice the amount of monthly basic pay to which he would be entitled if serving on active duty on the date when his name was placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is separated, and in the permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is separated and which was found to exist as a result of a physical examination * twice the amount of monthly basic pay to which he would be entitled if serving on active duty on the date when his name was placed on the temporary disability retired list or, if his name was not carried on that list. on the date when he is separated, and in the temporary grade or rank to which he would have been promoted had it not been for the physical disability for which he is separated and which was found to exist as a result of a physical examination, if his eligibility for promotion was required to be based on cumulative years of service or years in grade * the minimum years of service of a member for purposes of subsection (a)(1) shall be as follows: * six years in the case of a member separated from the armed forces for a disability incurred in line of duty in a combat zone (as designated by the Secretary of Defense for purposes of this subsection) or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense * three years in the case of any other member 4. 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. 5. Department of Defense Financial Management (DODFMR) 7000-14-R states the members separation orders will specify the total combined years of active service to be counted in computing severance pay. Six years in the case of a member separated from the Armed Forces for disability incurred in the line of duty in a combat zone (as designated by the Secretary of Defense) or incurred during the performance of duty in combat-related operations. Disability Separation Pay is normally taxable income. However, it is not subject to tax withholding if the entitlement resulted from combat- related injury or illness, as determined by the Secretary of the Military Department concerned, which happens as a result of a direct result of armed conflict or by an instrumentality of war. 6. 10 U.S. Code 1201 states that upon a determination by the Secretary concerned that a member described in subsection (c) is unfit to perform the duties of the member’s office, grade, rank, or rating because of physical disability incurred while entitled to basic pay or while absent as described in subsection (c)(3), the Secretary may retire the member, with retired pay computed under section 1401 of this title, if the Secretary also makes the determinations with respect to the member and that disability specified in subsection (b). Determinations referred to in subsection (a) are determinations by the Secretary that are based upon accepted medical principles, the disability is of a permanent nature and stable; the disability is not the result of the member’s intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence; and either the member has at least 20 years of service computed under section 1208 of this title; or the disability is at least 30% under the standard schedule of rating disabilities in use by the VA at the time of the determination; and either: the disability was not noted at the time of the member’s entrance on active duty (unless clear and unmistakable evidence demonstrates that the disability existed before the member’s entrance on active duty and was not aggravated by active military service); the disability is the proximate result of performing active duty; the disability was incurred in line of duty in time of war or national emergency; or the disability was incurred in line of duty after September 14, 1978 //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180000704 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1