ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 18 July 2019 DOCKET NUMBER: AR20180016836 APPLICANT REQUESTS: Correction of his record to show the following: * recalculation of his retired pay under Title 10 United States Code (USC), section 1401(a) * promotion to the rank of chief warrant officer five (CW5) instead of chief warrant officer four (CW4) in accordance with Title 10 USC, section 1372 * removing the Veterans Affairs (VA) waiver from his monthly retired pay APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders Number 024-0504, dated 24 January 2017 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 2 April 2017 * Defense Finance and Accounting Service (DFAS) method A and B computation worksheet, dated 21 April 2017 * Veterans Affairs (VA) adjudication, dated 23 May 2017 * Applicant letter to DFAS, dated 31 July 2017 * DFAS letter, dated 4 August 2017 * DFAS Forms 7220 (Retiree Account Statement), dated 24 May 2017, 30 June 2017, 1 August 2017, and 1 February 2018 FACTS: 1. The applicant states in effect: * the calculation of his retirement pay reflected on his most recent retiree account statements are incorrect * his retirement orders identify Title 10 USC, section 1372 as other eligible laws, and this law acknowledges he was eligible for retirement at the next higher grade of CW5 * DFAS calculated a VA waiver that is not required as a result of him being rated 100% permanent and totally disabled by the VA as per Title 38 U.S. Code of Federal Regulations 2. A review of the applicant’s service records show the following on: * 13 December 2002 – having had prior Regular Army enlisted service, the applicant was appointed as a Reserve warrant officer and executed an oath of office * 8 August 2012 – Orders Number 221-095, issued by Headquarters, U.S. Army Human Resources Command, Fort Knox, KY promoted the applicant to the rank of CW4 effective 1 September 2012 * 22 December 2016 – an informal Physical Evaluation Board (PEB) convened and found the applicant physically unfit, the PEB recommended a rating of 80% and his disposition be placement on the Temporary Disability Retirement List (TDRL) with reexamination September 2017, he concurred with the findings * 2 April 2017 – the applicant was honorably retired from active duty by reason of disability, temporary (enhanced), DD Form 214 shows in item 4a (Grade, Rate or Rank) shows CW4; he completed: * 14 years, 3 months, and 20 days of net active service this period * 10 years, 7 months, and 7 days of prior active service * 4 years and 27 days of inactive service * the applicant’s records are void of any evidence he was on an active duty promotion list for promotion to CW5 3. The applicant provides: * Orders Number 024-0504, issued by the U.S. Army Combined Arms Support Command placed the applicant on the TDRL with 80% disability and transferred him to the U.S. Army Reserve Control Group (Retired), other eligible laws shows Title 10 USC, section 1372 * Method A and B calculations showing the most advantageous method of retired pay based on the rank of CW4 with 25 years, 3 months, 20 days, at 80% disability, showing: * Method A ($5,557.00) gross monthly pay was most beneficial * after Survivor Benefit Plan (SBP) deductions of $361.21 the net amount due was ($5,195.79) * his retired pay account was established at the gross monthly rate which affords the greatest amount, and he was not required to make an election if he wished to receive this amount * VA adjudication showing the applicant’s combined service-connected evaluation was 100% and he was considered totally and permanently disabled * Self-authored letter to DFAS wherein the applicant identified his retirement pay as being incorrect and he requested a recalculation, and he should be retired and receiving retired pay as a CW5, additionally a VA waiver was not required because he was rated 100% permanently and totally disabled * DFAS letter to the applicant wherein a DFAS official informed the applicant DFAS was unable to process his request because the change must be initiated through his branch of service and requires a correction of his records * DFAS Forms 7220 showing the following: * Pay date 1 June 2017 – gross pay $5,557.00,SBP costs = $361.21, net pay = $5,195.79 * Pay date 30 June 2017 (statement effective date 24 May 2017) – gross pay $5,557.00, SBP costs = $361.21, VA waiver = $3,442.56, net pay = $1,753.23 * Pay Date 30 June 2017 (statement effective date 12 June 2017) - gross pay $5,557.00, SBP costs = $361.21, VA waiver = $1,231.00, net pay = $3,851.25 * Pay Date 30 June 2017 (statement effective date 9 June 2017) - gross pay $5,557.00, SBP costs = $361.21, VA waiver = $3,442.56, net pay = $1,639.69 * Pay Date 1 August 2017 (statement effective date 6 July 2017) - gross pay $5,557.00, SBP costs = $361.21, VA waiver = $1,231.00, net pay = $3,804.15 * Pay Date 1 February 2018 (statement effective date 11 December 2017) - gross pay $5,584.00, SBP costs = $363.01, VA waiver = $1,237.00, net pay = $3,936.89 4. Title 10 USC, section 1401 (Computation of Retired Pay) states if a person would otherwise be entitled to retired pay computed under more than one formula of the table in subsection (a) or of any other provision of law, the person is entitled to be paid under the applicable formula that is most favorable to him. 5. Title 10, USC, section 1372, states unless entitled to a higher retired grade under some other provision of law, any member of an Armed Force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the TDRL under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: a. The grade or rank in which he or she is serving on the date when his or her name is placed on the TDRL or, if his or her name was not carried on that list, on the date when he or she is retired. b. The permanent Regular or Reserve grade to which he or she would have been promoted had it not been for the physical disability for which he or she is retired and which was found to exist as a result of a physical examination. 6. Army Regulation (AR) 635-40 (Disability Evaluation for Retention, Retirement, or Separation) paragraph 4-30 states, the grade at which a Soldier is retired will be the highest of the grade to which the Soldier would have been promoted had it not been for the physical disability for which the Soldier was determined unfit. In general, this provision pertains to Soldiers on a promotion list. For Active Army and Reserve Component officers, upon U.S. Army Physical Disability Agency (USAPDA) confirming that the officer meets the requirements on an approved and confirmed promotion list prior to the effective date of transfer to the retired list, the officer’s orders will list the higher grade at the order’s lead line for retired grade. Promotion orders are not issued. 7. 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. Section c(2) states veterans who are entitled to receive disability compensation based on a VA determination of individual unemployability as well as veterans rated 100% disabled under the VA schedule for rating disabilities need not file waivers of military retired pay. The phase-in period does not apply to this group of veterans. 8. 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s promotion to CW4, the reason for his separation (disability retirement) and the absence of evidence in the records or provided by the applicant that shows he was on an active duty promotion list for promotion to CW5 at the time of his retirement. The Board reviewed the available information regarding Title 10 USC, section 1401 (Computation of Retired Pay) and determined based on the evidence that the applicant is receiving retired pay at the level most advantageous to him. The Board determined that it is beyond their purview to address the issue of VA waiver calculations and the Board recommends the applicant address those issues directly with the appropriate agencies. The Board determined that there was insufficient evidence to support the applicant’s requested relief. 2. 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. 7/31/2019 X 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 1401 (Computation of Retired Pay) states if a person would otherwise be entitled to retired pay computed under more than one formula of the table in subsection (a) or of any other provision of law, the person is entitled to be paid under the applicable formula that is most favorable to him. 2. Title 10, USC, section 1372, states unless entitled to a higher retired grade under some other provision of law, any member of an Armed Force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the TDRL under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: a. The grade or rank in which he or she is serving on the date when his or her name is placed on the TDRL or, if his or her name was not carried on that list, on the date when he or she is retired. b. The permanent Regular or Reserve grade to which he or she would have been promoted had it not been for the physical disability for which he or she is retired and which was found to exist as a result of a physical examination. 3. AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation) paragraph 4-30 states, the grade at which a Soldier is retired will be the highest of the grade to which the Soldier would have been promoted had it not been for the physical disability for which the Soldier was determined unfit. In general, this provision pertains to Soldiers on a promotion list. For Active Army and Reserve Component officers, upon the USAPDA confirming that the officer meets the requirements on an approved and confirmed promotion list prior to the effective date of transfer to the retired list, the officer’s orders will list the higher grade at the order’s lead line for retired grade. Promotion orders are not issued. 4. 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. Section c(2) states veterans who are entitled to receive disability compensation based on a VA determination of individual unemployability as well as veterans rated 100% disabled under the VA schedule for rating disabilities need not file waivers of military retired pay. The phase-in period does not apply to this group of veterans. 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.