ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF: 
BOARD DATE:  15 July 2019 
DOCKET NUMBER:  AR20180003559 
APPLICANT REQUESTS: correction of his record to show the following: 
•	waiver of his Voluntary Separation Incentive (VSI) remuneration in the amount of
$148,539.22 received from 1992 through 2003
•	reimbursement of December 2011 – December 2013 inappropriate Veterans 
Affairs (VA) withholding of waiver money from his retired pay in the amount of 
$7,677.40
•	retroactive Concurrent Retirement Disability Pay (CRDP) beginning
1 December 2011 and interest on the estimated total of $40,000.00
•	personal hearing before the Board
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
•	DD Form 149 (Application for Correction of Military Record)
•	National Personnel Records Center (NPRC) letter
•	Memorandum, Subject: Appointment as a Reserve Commissioned Officer of the 
Army under Title 10 United States Code (USC), sections 591 and 593, dated 29 
September 1992
•	Orders Number 160-1, dated 15 September 1992
•	Memorandum, Subject: Voluntary Separation, Category II, VSI, dated 9 January 
1992
•	U.S. Army Personnel Command (PERSCOM) Message, dated 2 February 1992
•	DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 
October 2011
•	VSI earnings statement, dated 9 September 2003 – 9 August 2004
•	Excerpt, Title 10 USC, section 1175a
•	Defense Finance and Accounting Service (DFAS) letter, dated 7 December 2017
•	Self-authored letter alleging collusion by DFAS, dated 23 March 2018
•	VA adjudication letter, dated 29 July 2013
•	DFAS pay statements 2011-2013
•	Leave and Earnings Statement (LES), dated 30 April 2012
•	Self-authored letter pertaining to a Driving Under the Influence (DUI) and a 
Protective Order violation
•	Court reporters record, dated 23 April 2010
•	Motion to dismiss, dated 3 November 2015
•	Handwriting expert testimony, dated 16 July 2018
FACTS: 
1.	The applicant did not file within the three year time frame provided in Title 10, 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 in pertinent part:
a.	Pursuit of waiver authority per Title 10 USC, section 1175a (j)(4) "The Secretary
of Defense" has been obfuscated and deflected at every turn since the 'required 90 
days prior· to discharge.'  At this 11th hour of DFAS answering the request, they deflect 
to the ABCMR - after 7 years of asking specifically, 'Who at the Secretary of Defense’s 
office?'  He accepted the VSI in 1992 after more than 15 years of service.  The 
condition was that he would remain in a Reserve status, and pay back any VSI 
payments if subsequently qualified for retirement.  In other words, he was required to 
reset his life and career goals because of Army reduction requirements.  Following 11 
September 2001, the Army recalled a very narrow group of senior aviators to fill the 
ranks.  Repayment of VSI after 9 plus years additional service and 4 and one half years 
combat service is just wrong.  Waiver authority/processing had finally begun with DFAS 
after 5 plus years of seeking who and how.  Now DFAS says it’s not the Secretary of 
Defense, but the ABCMR  
b.	Around 2012, he filed a complaint with the Fort Hood Inspector General (IG)
stating DFAS was inappropriately withholding VA waiver money from his Army 
retirement pay.  The Fort Hood IG said the problem rested with the VA.  He appealed 
that decision to the Army IG on 23 January 2015.  The Army IG refused to open an 
investigation.  Title 38 Code of Federal Regulations (CFR), section 3.750 states that 
disability ratings of at least 50% will not be subject to the 'VA Waiver' also known as 'VA 
Off-set'.  He had been rated at 70% disabled effective 1 December 2011, yet the 
withholdings persisted through 2013 for an exact total of $7,677.40.  Moreover, there 
was no CRDP per the CFR until December 2013 a significant benefit loss.   
3.	A review of the applicant’s service records show the following on:
•	25 April 1980 – having had prior enlisted service, the applicant was appointed as 
a Regular Army (RA) officer and served in various assignments
•	9 January 1992 – by memorandum, the applicant tendered his unqualified 
resignation under the provisions of Army Regulation (AR) 635-100 (Personnel 
Separations – Officer Personnel), chapter 3 and the VSI program to be effective 
29 September 1992, his senior commander recommended approval 
•	15 September 1992 – Orders Number 160-1, issued by the U.S. Army White 
Sands Missile Range, NM discharged the applicant from the RA:
•	VSI payment was authorized upon receipt of an Individual Ready Reserve 
agreement
•	his Reserve obligation was 14 July 2022
•	if he qualified for retirement under Title 10 or Title 14 USC for retired pay his 
retired pay would be deducted an amount equal to the total amount of VSI not 
previously recouped
•	30 September 1992 – the applicant was honorably discharged from active duty 
by reason of the Fiscal Year 1992 officer early transition program and transferred 
to the U.S. Army Reserve Control Group (Reinforcement), DD Form 214 shows 
in item 18 (Remarks) VSI payment $14,850.73 for 30.62 years
•	1 October 1992 – the applicant was appointed as a Reserve commissioned 
officer
•	10 August 2000 – the applicant submitted DA Form 160-R (Application for Active 
Duty) volunteering to enter active duty for an indefinite period, item 13 (Remarks) 
shows it was a reapplication due to anticipated critical skills shortfalls
•	21 December 2001 – Orders Number A-12-005501, issued by the U.S. Total 
Army Personnel Command, St. Louis, MO ordered the applicant to active duty
•	31 October 2011 – honorably retired from active duty by reason of unacceptable 
conduct, DD Form 214 shows he completed 9 years, 5 months, and 6 days of net 
active service this period, and 15 years, 7 months, and 26 days total prior active 
service with 10 years, 1 month, and 27 days of prior inactive service
4.	The applicant provides:
•	NPRC letter wherein an NPRC official replies to the applicant and informed him 
all personnel records pertaining to his voluntary separation were being provided
•	Memorandum, Subject: Appointment as a Reserve Commissioned Officer of the 
Army under Title 10 USC, sections 591 and 593 wherein the applicant was 
appointed a Reserve commissioned officer for an indefinite term
•	PERSCOM message showing the applicant’s approval for separation under the 
VSI
•	VSI earning statement showing a retired pay offset amount of $148,539.22
•	Excerpt, Title 10 USC, section 1175a showing voluntary separation pay and 
benefits of members involuntarily recalled to active duty would not be subject to 
this section and the Secretary of Defense may waive, in whole or in part, 
repayment required under paragraph 1
•	DFAS letter wherein the applicant was informed they were unable to process his 
waiver because he submitted a request to the ABCMR
•	VA claim letter wherein his benefits were stopped as of 8 January 2002 due to 
his return to active duty, then resuming on 1 November 2011 at a 30% rate, 
subsequently increased to 70% on 1 December 2011 with retired pay withholding 
beginning, benefits reduced on the 61st day of incarceration
•	DFAS annual pay statements from 2011-2013 showing the applicant’s retirement 
entitlements to include a $376.00 per month VA waiver beginning December
2011 and continuing through August 2013, CRDP was started August 2013
•	April 2012 LES showing a $3,446.20 lump sum leave payment (previously 
adjudicated by the Board)
•	Self-authored letter wherein the applicant provides exculpatory information 
related to an expungement order provided to the Federal Bureau of Investigation 
and the U.S. Army Criminal Investigation Division
•	Court reporters record showing the court agreed not to put the applicant in jail 
based upon the applicant’s explanation of the variances
•	Motion to dismiss the case of the State of Texas versus the applicant was 
approved and dismissed on 3 November 2015
•	Handwriting expert testimony wherein the author in his professional opinion a 
different person authored the handwriting on the questioned documents
5.	Title 38, CFR, 3.750 (Entitlement to Concurrent Receipt of Military Retired Pay and 
Disability Compensation) states in:
   a.	Section b(1) subject to paragraphs (b)(2) and (b)(3) of this section, a veteran who
is entitled to military retired pay and disability compensation for a service-connected 
disability rated 50% or more. 
   b.	Section b(2) disability retired pay payable under Title 10 USC, chapter 61 
(Retirees retiring with 20 or more years of service) to a veteran with 20 or more years of 
creditable service may be paid concurrently with disability compensation to a qualifying 
veteran subject to any waiver required during the phase –in period under paragraph 
(c)(1)(ii) and of the veterans disability retired pay exceeds the amount of retired pay. 
   c.	Except as provided in paragraph (c)(2) (Individual unemployability or rated at 
100%) of this section, all veterans who are eligible to receive both military retired pay 
and disability compensation at the same time under paragraphs (b)(1) or (b)(2) of this 
section must file a waiver in order to receive the maximum allowable amount of 
disability compensation during the phase-in period. 
6.	Title 10 USC, section 1175a(j) (Repayment for Members who Return to Active Duty) 
states a member of the armed forces who, after having received all or part of 
voluntary separation pay under this section, returns to active duty shall have 
deducted from each payment of basic pay, in such schedule of monthly installments 
as the Secretary concerned shall specify, until the total amount deducted from such 
basic pay equals the total amount of voluntary separation pay received.  The 
Secretary of Defense may waive, in whole or in part, repayment required under 
paragraph (1) if the Secretary determines that recovery would be against equity and 
good conscience or would be contrary to the best interests of the United States.  The 
authority in this paragraph may be delegated only to the Undersecretary of Defense 
for Personnel and Readiness and the Principal Deputy Undersecretary of Defense 
for Personnel and Readiness. 
7.	The DFAS website provides the following guidance related to CRDP.  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 under the Temporary Early Retirement Authority 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.
8.	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.	The Board carefully considered the applicant’s request, supporting documents and 
evidence in the records.  The Board considered the request for Voluntary Separation 
Incentive (VSI) remuneration.  The Board found that his orders discharging him from 
the RA on 15 September 1992 stated that, if he qualified under Title 10 or Title 14 
USC for retired pay, then his retired pay would be deducted an amount equal to the 
total amount of VSI not previously recouped.  The Board also found that on 10 
August 2000, the applicant submitted DA Form 160-R (Application for Active Duty) 
volunteering to enter active duty for an indefinite period and that the applicant retired 
on 31 October 2011. Relevant portions of 10 USC 1175a indicate that recoupment is 
appropriate when a service member either retires or later returns to active duty.  In 
the applicant’s case, he appears to have done both.   Consequently, the Board 
determined there was no error in the recoupment of his VSI payments.
2.	The Board considered the applicant’s request for reimbursement of December 2011 
– December 2013 Department of Veterans Affairs (VA) withholding of waiver money 
from his retired pay in the amount of $7,677.40 that he states is inappropriate.  The 
Board determined that this withholding is determined by the VA, is outside the 
Board’s authority and found no record to correct to change the VA’s action.  The 
Board recommends that the applicant pursue this request with the VA.  Furthermore, 
to the extent the applicant requests a waiver of recoupment that was initiated in 
accordance with 10 USC 1175a due to the applicant’s voluntary return to active duty, 
the statute itself indicates that DOD, not the Department of the Army, is the waiver 
authority for such a request. (See 10 USC 1174a(j)).  
3.	The Board deferred consideration of the applicant’s request for retroactive 
Concurrent Retirement Disability Pay (CRDP) beginning 1 December 2011 and 
interest on the estimated total of $40,000.00.  This issue requires additional 
development and is not yet ripe for adjudication.  In order to not further delay 
adjudication of the other issues on appeal, the Board bifurcated the application and 
will render a decision with respect to CRDP at a later date.
4.	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 necessary to serve the interest of 
equity and justice in this case.
5.	After reviewing the application and all supporting documents, the Board found the 
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. 

 
CHAIRPERSON

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. 
ADMINISTRATIVE NOTE(S):  Not Applicable
REFERENCES: 
1.	Title 10, USC, section 1552(b), provides that applications for correction of military 
records must be filed within three 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 three-year statute of limitations if the ABCMR 
determines it would be in the interest of justice to do so.
2.	Title 38, CFR, 3.750 (Entitlement to Concurrent Receipt of Military Retired Pay and 
Disability Compensation) states in:
   a.	Section b(1) subject to paragraphs (b)(2) and (b)(3) of this section, a veteran who
is entitled to military retired pay and disability compensation for a service-connected 
disability rated 50% or more. 
   b.	Section b(2) disability retired pay payable under Title 10 USC, chapter 61 
(Retirees retiring with 20 or more years of service) to a veteran with 20 or more years of 
creditable service may be paid concurrently with disability compensation to a qualifying 
veteran subject to any waiver required during the phase –in period under paragraph 
(c)(1)(ii) and of the veterans disability retired pay exceeds the amount of retired pay. 
   c.	Except as provided in paragraph (c)(2) (Individual unemployability or rated at 
100%) of this section, all veterans who are eligible to receive both military retired pay 
and disability compensation at the same time under paragraphs (b)(1) or (b)(2) of this 
section must file a waiver in order to receive the maximum allowable amount of 
disability compensation during the phase-in period. 
3.	Title 10 USC, section 1175a(j) (Repayment for Members who Return to Active Duty) 
states a member of the armed forces who, after having received all or part of 
voluntary separation pay under this section, returns to active duty shall have 
deducted from each payment of basic pay, in such schedule of monthly installments 
as the Secretary concerned shall specify, until the total amount deducted from such 
basic pay equals the total amount of voluntary separation pay received.  The 
Secretary of Defense may waive, in whole or in part, repayment required under 
paragraph (1) if the Secretary determines that recovery would be against equity and 
good conscience or would be contrary to the best interests of the United States.  The 
authority in this paragraph may be delegated only to the Undersecretary of Defense 
for Personnel and Readiness and the Principal Deputy Undersecretary of Defense 
for Personnel and Readiness.
4.	The DFAS website provides the following guidance related to CRDP.  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 under the Temporary Early Retirement Authority 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.   
5.	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.
 
ABCMR Record of Proceedings (cont) 	 AR20180003559 
ABCMR Record of Proceedings (cont) 	 AR20180003559 
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