IN THE CASE OF: BOARD DATE: 17 February 2023 DOCKET NUMBER: AR20220003545 APPLICANT REQUESTS: * grant 5-years military service back and granted retired pay * award Combat Related Special Compensation (CRSC) * a personal appearance before the Board via video or telephonically APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored letter * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) service ending 21 October 1959 * Tripler Army Medical Center General Orders Number 27 * Purple Heart Certificate * DD Form 214 service ending 2 November 1966 * DD Form 214 service ending 28 January 1970 * DD Form 214 service ending 14 October 1973 * U. S. Army Military Personnel Center Orders Number D78-15 * DD Form 214 (Report of Separation from Active Duty) service ending 5 May 1977 * Certificate of Retirement * Department of Veterans Affairs (VA) service connected compensation letter * VA Rating Decision, 19 June 2002 * U. S. Army Physical Disability Agency (CRSC) approval * Defense Finance and Accounting Service (DFAS) Letter * DFAS Account Statement * U. S. Senator letter, 27 May 2004 * Applicant letter to U. S. Senator * Applicant letter to Office Personnel Management * VA Summary of Benefits letter * Congressman letter, 23 July 2012 * VA Rating Decision, 31 August 2016 * DD Form 2860 (Claim for CRSC) * Medical document FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 in effect, he retired from active service on 5 May 1977 with 20- years and 5-months of active service. He was employed by the U. S. Postal Service from 1978 through 1992. At which time, he elected to buy back 5-years of his military service towards his civil service retirement. He was not informed that by doing so would waive his rights to any future military retirement compensation. In 2002, he was informed that he was not eligible for CRSC because his records did not reflect, he was retired from the Army. He requests a correction of his service records to reflect his retired status and be awarded CRSC. He understood CRSC to be a special compensation for individuals who spent 20-years in the military and were injured in combat. Waiving his military pay does not exclude him from being a disabled combat wounded veteran. Although he was injured in 1966, he did not receive disability compensation until 2001. The 40 percent compensation he was awarded for losing a limb was not an additional compensation but granting him 40 percent tax exemption from his active duty pay. 3. Review of the applicant's service records shows: a. On 22 January 1957, the applicant enlisted in the Regular Army (RA). b. DA Form 20 (Enlisted Qualification Record) shows: * assignment limitation: artificial lower left leg; no prolonged standing, no crawling, no duties requiring squatting or walking on irregular ground * served in Vietnam during 8 July 1965 through 17 March 1966 c. On 21 October 1959, the applicant was honorably released from active duty and transferred to the U.S. Army Corps (Reserve). He completed 2-years and 9-months of active service. He continued service through reenlistments until his medical retirement. d. On 29 October 1969, the Medical Evaluation Board (MEB) found the applicant physically unfit for retention due to the amputation of his left lower extremity which occurred on 9 March 1966 in the Republic of Vietnam when he stepped on a land mine. The board recommended the applicant be retained on active duty under provision of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 10 (Continuance of Disabled Personnel on Active Duty). The findings and recommendations of the MEB was approved. e. On 21 November 1969, the Physical Evaluation Board (PEB) found the applicant physically unfit for retention and recommended the applicant be continued on active duty under provision of AR 635-40, chapter 10 for left leg amputation at a lower level permitting prosthesis. If retention was denied, the board recommended 40 percent permanent disability retirement. f. On 20 January 1970, the applicant’s request for continuation on active duty was approved. g. On 5 September 1973, the applicant’s request for continuation on active duty was approved. h. On 3 November 1976, the MEB found the applicant physically unfit for retention due to amputation of left leg below the knee form traumatic secondary injury in Vietnam and high frequency hearing loss. The MEB recommended the applicant be continued on active duty though he was not qualified for continuance on the active duty. The MEB findings and recommendation was approved. i. On 30 December 1976, the applicant’s request for continuation on active duty was approved. j. On 17 March 1977, the PEB found the applicant physically unfit for retention due to amputation below the left knee with prosthesis. His condition had not improved and continues to be unfit; his condition had stabilized at the degree of severity indicated. Therefore, permanent retirement was recommended with 40 percent disability. The applicant concurred with the board findings. k. On 21 April 1977, Orders Number D78-15, issued by the U. S. Army Military Personnel Center, the applicant was determined to be permanently unfit for duty because of his disability and retired from active duty and placed on the retired list with 40 percent disability. l. On 5 May 1977, the applicant was honorably retired from active duty under the provisions of AR 635-40, paragraph 5-8e(1). DD Form 214 shows the applicant completed 3-years, 6-months, and 21-days of active service for a total of 20-years, 3- months, and 29-days of active service. m. On 12 July 1977, Permanent Orders Number 47-1, issued by Headquarters, 7th Infantry Division and Fort Ord, the applicant was awarded the Meritorious Service Medal. 4. The applicant provides: a. Certificate of retirement which shows the applicant was retired from the Armed Forces of the United State of America on 5 May 1977 having served faithfully and honorably in the U.S. Army. b. VA letter dated 27 June 2002, which shows the changes in his service connected compensation for Post-Traumatic Stress Disorder (PTSD) and tinnitus, as of 1 July 2002 the retired pay withholding stopped. c. U.S. Army Physical disability Agency (CRSC) letter dated 14 November 2003, his application for CRSC was approved, effective 1 June 2003 for PTSD, loss of lower leg, prostate gland condition, and tinnitus for a total of 90 percent combat related disability. CRSC was disapproved for traumatic arthritis as non-combat related. d. DFAS letter dated 6 February 2004, notifying the applicant his combat related or Purple Heart disability rating of 90 percent entitled him to a monthly payment of $1,317.00, effective 1 June 2003. The cost of living adjustment increased his CRSC entitlement to $1,344.00 effective 1 December 2003. A payment of $9,243.00 for payments June 2003 through December 2003 was deposited into his bank account. He would be receiving two payments each month for his retired pay and CRSC. e. DFAS account statement dated 4 May 2004, showed a debt of $9,246.00. The reason for the debt was for overpayment related to CRSC for the period of 1 June through 31 December 2003, since he waived his retired pay for civil service annuity, he was not eligible for CRSC. f. Letter from dated 27 May 2004, which stated the Senator had initiated an inquiry regarding the applicant’s CRSC and the problem he experienced using his military service time for civil service credit for his annuity. The Senator believed this should not affect receipt of CRSC, which is not contingent on retirement. g. Applicant’s letter dated 9 March 2006, to Senator stated he served in Vietnam where he lost his left foot in March 1966 and was allowed to remain on active duty to obtain his 20-years of service. In 2003, he applied for CRSC and was awarded 90 percent combat related disabilities. Five-months later, DFAS asked for the monies back, stating he waived his military retirement for civil service annuity, when he bought back 5-years of his military service in 1992 to be able to retire from the U.S. Postal Service with 20-years of service. When he completed the buy back, no one informed him that he would be forfeiting his military retirement. When he applied for CRSC, there was no publication that stated he had to be collecting retired military pay to be eligible for CRSC. He believed CRSC was a special compensation for individual who spent 20- years in the military and was injured in combat, waiving his military retired pay does not exclude him form being a disabled combat veteran. The applicant inquired if there could be a exception to the policy. h. Applicant’s letter to OPM dated 3 December 2009, he stated he retired from the Army on 5 May 1977 with 20-years and 4-months and then worked for the U. S. Postal Service. When he retired from the U. S. Postal Service in October 1992, he combined his military service with his civil service to be able to retire from the civil service. He paid $12,525.95 to buy back his military service. He was willing to forfeit his civil service retirement and convert it back to a military retirement. He inquired how much would it cost him and what would be the procedure for this action. i. VA letter dated 28 September 2010, for the applicant’s summary of his benefits, which shows his combined service-connected disability was 100 percent and was receiving a monthly entitlement of $3,015.00. He was considered totally and permanently disabled due to his service-connected disabilities of a loss of limb. j. Letter from Congressman dated 23 July 2012, which stated the Congressman had been in contact with the agency regarding his problem and he would inform the applicant of the response. Additionally, he provided a letter to stating his was providing the names of personnel in the CRSC division. k. VA rating decision dated 31 August 2016, showing the applicant was receiving compensation for: * PTSD 70 percent as of 1 October 2001 * amputation below left knee for 40 percent as of 1 May 1979 * low back pain, chronic traumatic degenerative for 40 percent as of 1 August 2006 * residual prostate cancer for 20 percent as of 10 February 2000 * tinnitus for 10 percent as of 13 June 2001 * bilateral hearing loss for 0 percent as of 6 May 1977 He received a combined disability of 90 percent as of 1 August 2006. l. The applicant applied on 6 April 2022 for CRSC for the amputation of his left leg below the knee which was incurred in combat while serving in Vietnam. His current VA rating was 100 percent as of 12 June 2001. He was a combat infantryman in Vietnam in 1966 when he lost his left foot. He was awarded the Purple Heart and Combat Infantryman Badge for his injuries he received. At the time, he had 9-years of service and was retained on active duty to complete 20-years of active service and retired in May 1977. 5. On 29 July 2022, in the processing of this case, the Office of the Deputy Chief of Staff G1, Director, Army Retirement Services, provided an advisory opinion regarding retired pay and awarding CRSC. The advisory official stated the applicant was medically retired from active duty on 5 May 1977 and received military retirement pay through 1992. At which time he chose to sell back 5-years of military service in order to apply towards his civilian Federal Employees Retirement System (FERS) retirement from the U. S. Postal Service and subsequently retired. In doing so, he forfeited his entitlement to military retired pay as his remaining service was only 15-years and 3-months after selling the 5-years of military service. The applicant requested the awarding of CRSC for injuries incurred in 1966 while in the service. CRSC was not incorporated into law until December 2002 with an effective date of 31 May 2003. In order to be eligible for CRSC, he must be entitled to retired pay. The applicant expressed an interest in reversing his FERS retirement to receive a military service retirement. The Office of Personnel Management (OPM) stated the retirement cannot be reversed; however, if the military is providing documentation for a paid military status, then OPM can adjust the retirement to reflect military service. The military service must be paid prior to retirement as OPM does not calculate military service. The applicant will not be able to undo his retirement action; however, any new development may be sent to OPM for a review to see if he qualifies for Combat Related Compensation. The applicant is no longer eligible to receive military retired pay as a result of selling back 5-years of military service in order to be eligible for his FERS retirement, and as such he is not eligible CRSC. 6. On 7 August 2022, Army Review Boards Agency, Case Management Division provided the applicant a copy of the advisory opinion for review and comment, the applicant has not responded. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the Office of the Deputy Chief of Staff G1, Director, Army Retirement Services, the Board concurred with the advising official finding the applicant was medically retired from active duty on 5 May 1977 and received military retirement pay through 1992. At which time he chose to sell back 5-years of military service in order to apply towards his civilian Federal Employees Retirement System (FERS) retirement from the U. S. Postal Service and subsequently retired. In doing so, he forfeited his entitlement to military retired pay as his remaining service was only 15-years and 3-months after selling the 5- years of military service. 2. During deliberation, the Board determined applicant requested the awarding of CRSC for injuries incurred in 1966 while in the service. CRSC was not incorporated into law until December 2002 with an effective date of 31 May 2003. In order to be eligible for CRSC, he must be entitled to retired pay. Evidence in the record show the applicant discussed reversing his FERS retirement to receive a military service retirement. The Office of Personnel Management (OPM) stated the retirement cannot be reversed; however, if the military is providing documentation for a paid military status, then OPM can adjust the retirement to reflect military service. The Board noted that the military service must be paid prior to retirement as OPM does not calculate military service. Furthermore, the applicant will not be able to undo his retirement action; however, any new development would need to be sent to OPM for a review to see if the applicant qualifies for Combat Related Compensation. Based on this, the Board found the applicant is no longer eligible to receive military retired pay as a result of selling back 5- years of military service in order to be eligible for his FERS retirement, and as such he is not eligible CRSC. Therefore, the Board denied relief. 3. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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. 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: Except for the correction addressed in Administrative Note(s) below, the Board found 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. ADMINISTRATIVE NOTE(S): 1. Reference the enclosed request for correction of military records from the subject individual to correct his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending May 5, 1977, by: a. Delete: Vietnam Service Medal b. Add: * Vietnam Service Medal with two bronze service stars * Meritorious Service Medal 2. A review of the records listed below (enclosed) is sufficient to substantiate correction of the DD Form 214 without action by the Board. * DD Form 214 service ending January 28, 1970 * DD Form 214 service ending May 5, 1977 * DA Form 20 (Enlisted Qualification Record) * Headquarters, 7th Infantry division and Fort Ord Permanent Orders Number 47-1 3. Please correct the applicant’s DD Form 214 by adding the awards shown in paragraph 1 above. Provide the applicant a copy of the corrections, and as applicable the medals. Please ensure that the corrections are recorded in the applicant’s official military personnel record. 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 10 United States Code (USC) 1413a (Combat Related Special Compensation (CRSC) (c) (Eligible Retirees), an eligible combat related disabled uniformed services retiree is a member of the uniformed services who: is entitled to retired pay (other than by reason of section 12731b of this title); and has a combat-related disability. Effective date shall take effect not later than 180-days after the date of the enactment of this act of 2 December 2002. 3. Title 10 USC, chapter 61, section 1201 (Regulars and members on active duty for more than 30 days: retirement), (a) Retirement - upon a determination by the Secretary concerned that a member 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, the Secretary may retire the member, with retired pay if the Secretary also makes the determinations with respect to the member and that disability specified in subsection (b). (b) Required Determinations of Disability - determinations by the Secretary that: (1) based upon accepted medical principles, the disability is of a permanent nature and stable; (2) 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 (3) either; (A) the member has at least 20 years of service; or (B) the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination; and either (i) 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); (ii) the disability is the proximate result of performing active duty; (iii) the disability was incurred in line of duty in time of war or national emergency; or (iv) the disability was incurred in line of duty after 14 September 1978. 4. Department of Defense Financial Management Regulation 7000.14-R, Volume 7B, (Military Pay Policy – Retired Pay), provides information for the specific qualifications and entitlement for military retired pay, describes the basic types of retirement (regular, non-regular, and disability), discusses voluntary and involuntary retirements, and explains basic qualifications for the differing military retired pay programs. a. Chapter 63, Combat Related Special Compensation (CRSC), paragraph 1.1 Effective Date. The CRSC program became effective 31 May 2003. Payments are made on the first day of the first month following the month in which the compensation accrued, provided the member is receiving VA disability compensation for a disability that has been determined to be combat related by the Military Department. No CRSC is payable for any month prior to June 2003. b. Paragraph 1.1.1.3, for an eligible member who is retired under Title 10, United States Code, Chapter 61 (10 U.S.C. Chapter 61) with less than 20 years of active duty or with less than sufficient service and age to qualify for retirement under 10 USC, section 12731, compensation is effective 1 January 2008. c. Paragraph 4.3.2, a member who waives retired pay in order to credit military service for the purposes of establishing eligibility for a civil service retirement, or for any reason other than to receive disability compensation from the VA, is not eligible to receive CRSC payments. A member who combines his military time with his civil service time for the sole purpose of enhancing his civil service retirement may be eligible for CRSC if the member is still eligible to receive military retired pay. 5. Army Regulation 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 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) AR20220001717 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1