IN THE CASE OF: BOARD DATE: 28 July 2020 DOCKET NUMBER: AR20180008714 APPLICANT REQUESTS: Correction of his record to show: * as a result of his retirement date being corrected, retirement back pay for the period 27 – 31 August 2016 * as a result of his retirement points being corrected from 4,892 to 4,896 points, the Defense Finance and Accounting Service (DFAS) should correct his total retirement being paid from 27 August 2016 to the present * DFAS should back pay the $2,940.32 in Veterans Affairs (VA) waiver amounts deducted from his retirement pay from 1 October 2016 – 1 February 2017 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Army HRC (AHRC) Form 249-E (Chronological Statement of Retirement Points), dated 20 September 2015 * Orders Number C07-696319, dated 14 July 2016 * DFAS letter, dated 19 December 2016 * Summary of retired pay account, dated 19 December 2016 * U.S. Army Human Resources Command (HRC) letter, dated 12 January 2017 * Orders Number C07-696319A01, dated 12 January 2017 * VA adjudication, dated 9 February 2017 * DFAS letter, dated 15 August 2017 * DD Form 2 (U.S. Uniformed Services Identification Card) * Email correspondence * Retiree account statements * Correspondence course completions * Rationale for retired pay for five days FACTS: 1. The applicant states because HRC, Fort Knox, KY, has already issued corrected orders to DFAS changing his retirement date from 1 September 2016 to 27 August 2016, he believes DFAS should back pay him for retirement days 27-31 August 2016. Because HRC, Fort Knox, has already issued corrected total points to DFAS changing his total points for calculating retired pay from 4,892 to 4,896 retirement points, he believes DFAS should correct the retirement total being paid accordingly and back pay the amount not paid from 27 August 2016 to current. Because DFAS is already in possession of official VA documentation showing that he is a 70 percent disabled veteran as of 2 September 2015, he believes DFAS should back pay (retroactive pay) the $2,940.32 in VA waiver amounts deducted from his retirement pay from 1 October 2016 to 1 February 2017. 2. A review of the applicant's official records shows the following: a. On or about 20 August 1986, having had prior Regular Army commissioned officer service, the applicant was appointed as a Reserve commissioned officer. b. On 11 December 2001, by memorandum, the applicant was promoted to the rank/grade of colonel (COL)/O-6, effective on 8 December 2001, with a date of rank of 8 December 2011. c. On 14 July 2016, Orders Number C07-696319, issued by HRC, Fort Knox, retired the applicant and placed him on the retired list in the rank of COL, effective on 1 September 2016. d. The applicant's records contain a DA Form 5016 showing the applicant had 30 years, 1 month, and 26 days of qualifying service for retirement, with 4,896 total creditable points. 3. The applicant provides: a. AHRC Form 249-E showing at the time he had accumulated 4,892 total creditable points. b. DFAS letter, dated 19 December 2016, wherein a DFAS official welcomed the applicant to the retired rolls and provided a summary of his retired pay account as an attachment. c. Summary of retired pay account, dated 19 December 2016, showing at the time the applicant's retired pay was computed using 4,892 points, retirement date of 1 September 2016, and a VA waiver amount of $589.12. d. HRC letter, dated 12 January 2017, wherein an HRC official informed the applicant his application for retired pay was approved. e. Orders Number C07-696319A01, issued by HRC, amended Orders Number C07- 696319 insomuch as it changed the applicant's retirement date from 1 September 2016 to 27 August 2016. f. VA adjudication showing the applicant was awarded a combined rating of 70 percent for service connected disabilities, effective on 2 September 2015. g. DFAS letter, dated 15 August 2017, wherein a DFAS official informed the applicant in response to his recent inquiry, they are unable to process his request because any correction of record must be initiated through his branch of service. h. DD Form 2 issued to the applicant with emphasis on the effective date of 27 August 2016. i. Email correspondence wherein the applicant provides Mr. S- proof of correspondence courses completed for a correction of his retirement points thus changing his retirement date from 1 September 2016 to 27 August 2016. At a later date, Mr. S- replies stating the points were added and sent to DFAS. On 27 November 2017, the applicant sends a follow-up email to Mr. S- inquiring if the points and amended orders were sent to DFAS yet, and Mr. S- replies that the case has been completed and sent to DFAS on 5 September 2017. j. Retiree account statements showing between December 2016 and February 2017, the amounts of $1,174.72, $587.36, $589.12 x2 were deducted from the applicant's retired pay for a VA waiver. k. Correspondence course completions completed between 9 September 1990 to 14 December 1990, 25 July 1991, 5 February 1988, and 21 July 1988, totaling 474 course hours. l. Rationale for retired pay for five days provided by the applicant predicated on his supporting documents. 4. See applicable references below. BOARD DISCUSSION: The Board carefully considered the complete evidentiary record, including the applicant’s requests and supporting documents and found sufficient evidence to grant partial relief. 1. Regarding that portion of the applicant’s request pertaining to retirement back pay for the period 27 – 31 August 2016, the Board found sufficient evidence to grant relief. Orders Number C07-696319A01, issued by HRC, amended Orders Number C07- 696319 and changed the applicant's retirement date from 1 September 2016 to 27 August 2016. This added four points to the applicant’s retirement points resulting in a new total of 4896. Thus, the applicant’s retirement pay should be recalculated and he should be reimbursed for all back-pay from 27 August 2016. 2. Regarding the applicant’s request that DFAS should back pay the $2,940.32 in Veterans Affairs (VA) waiver amounts deducted from his retirement pay from 1 October 2016 – 1 February 2017, the Board found insufficient evidence to grant relief. Correction of VA records is outside the purview and authority of the ABCMR and the applicant is directed to the VA for perceived errors in VA disability compensation. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : 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 DFAS recalculating his retired pay from 27 August 2016 (vice 1 September 2016), for a total of 4896 points (vice 4892 points), and paying him any back-pay he is due. 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 the applicant’s request that DFAS should back pay the $2,940.32 in Veterans Affairs (VA) waiver amounts deducted from his retirement pay from 1 October 2016 – 1 February 2017. This is outside the ABCMR’s purview. 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. Department of Defense Financial Management Regulation section 010308 states creditable service for age and service retirement of a non-regular member includes each 1-year period after 1 July 1949, in which the member earned at least 50 points on the basis of one point for attending a prescribed course of instruction at a school designated as a Service school by the Secretary concerned, or one point for each attendance at a drill period of equivalent instruction prescribed for that year by the Secretary concerned. 2. Army Regulation (AR) 140-1 (Mission, Organization, and Training) states U.S. Army Reserve Soldiers who wish to augment training, may enroll in Army correspondence courses. Retirement points will be credited at a rate of 1 point for each 3-credit hours of nonresident instruction successfully completed. 3. Title 10, United States Code (USC): a. Section 1414(a) states subject to subsection (b), 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 (hereinafter in this section referred to as a “qualified retiree”) is entitled to be paid both for that month without regard to Title 38, USC, sections 5304 and 5305. During the period beginning on 1 January 2004, and ending on 31 December 2013, payment of retired pay to such a qualified retiree is subject to subsection (c) (Phase in of full concurrent receipt), except that payment of retired pay is subject to subsection (c) only during the period beginning on 1 January 2004, and ending on 31 December 2004, when a qualified retiree receiving veterans' disability compensation for a disability rated as 100 percent. b. Section 1414(b) (Special rules for Chapter 61 Disability Retirees) states the retired pay of a member retired under chapter 61 of this title with 20 years or more of service otherwise creditable under section 1405 of this title, or at least 20 years of service computed under section 12732 of this title, at the time of the member’s retirement is subject to reduction under sections 5304 and 5305 of title 38, but only to the extent that the amount of the member’s retired pay under chapter 61 of this title exceeds the amount of retired pay to which the member would have been entitled under any other provision of law based upon the member’s service in the uniformed services if the member had not been retired under chapter 61 of this title. 4. Title 38, Code of Federal Regulations (CFR), section 3.750 (Entitlement to concurrent receipt of military retired pay and disability compensation), section (b)(1) states 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 percent or more, or a combination of service-connected disabilities rated 50 percent or more, under the schedule for rating disabilities (Title 38 CFR part 4, subpart B), is entitled to receive both payments subject to the phase-in period described in paragraph (c) of this section. 5. By law (Title 38, USC, section 511), VA decisions and/or actions, including entitlements, benefits, and other actions are not within the purview of this Board and questions or concerns regarding entitlements and/or appeals should be referred to that Agency. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180008714 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1