permanent dod medical retirement? can i switch back if necessary?

maddox13

PEB Forum Regular Member
#1
I was rated 40% permanent retirement from DOD and 80% from va . I opted to waive dod pay for va pay, now im nervous because i have read va can lower your rate. I doubt i would ever get dropped below the fourty% awarded by dod, but my question is worse case scenario if the va lowered me much could i switch back to getting paid my permanent retired dod pay? And what regulations would cover this thank you
 

pittpan2005

PEB Forum Veteran
#2
I was rated 40% permanent retirement from DOD and 80% from va . I opted to waive dod pay for va pay, now im nervous because i have read va can lower your rate. I doubt i would ever get dropped below the fourty% awarded by dod, but my question is worse case scenario if the va lowered me much could i switch back to getting paid my permanent retired dod pay? And what regulations would cover this thank you
http://www.gpo.gov/fdsys/pkg/USCODE-2011-title38/pdf/USCODE-2011-title38-partIV-chap53-sec5305.pdf


Your election: If your VA rating were lowered, and the compensation received (from VA) would be lower than your 40% DoD pay, you would contact DFAS. I haven't seen anyone do this, but my assumption is DFAS should automatically complete it and if not you call and explain so that DoD is reinstated.

38 USC explains that if for some reason someone says, "Hey, I don't want my benefits," DFAS will stop payment. However, that person may apply to have those benefits reinstated. I included this summary of 38 USC Section 5306 to show that even in extreme elections monetary compensation can be reinstated. Therefore, I don't imagine you'd had any problem falling back on DoD.

I don't have a specific law, directive, etc. to provide that explains your exact situation of electing VA then electing DoD again later, but my assumption is you should automatically fall back on your DoD benefits, which you waived for VA compensation initially.

If this is a "permanent election" I hope someone can provide the law/regulation for all of us.
 

maparker

Staff Member
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#3
Maddox13,

You should be getting a Retirement Account Statement (RAS). It should show your DoD retirement pay and the fact that DoD retirement is being offset by your VA compensation. If your VA pay should be lowered below your DoD retirement amount, then the waiver would be lowered to the new VA amount and you would then receive the difference from DFAS in the form of DoD disability retirement.

We get numerous posts about choosing between DoD and VA. Can someone please demonstrate to me where one is required to make this choice? The only choice I am aware of is when one files for VA they chose to have their VA waive their DoD retirement but that waiver is only up to the amount of the VA compensation. Choosing between DoD and VA is a misconstrued notion. You get DoD retirement and as witnessed by the RAS and that retirement is then waived by VA up to the amount of the VA compensation. I see a lot of people spinning their wheels and twisting their guts into knots about choosing between DoD and VA when the only choice you are really making is the choice to allow your VA compensation to replace your DoD retirement but only up to the amount of the VA compensation. I have never seen a case where this was not the best thing to do given the VA compensation is tax-free and the fact the VA waiver can potentially be restored via CRDP or CRSC.

I lay out a challenge for anyone to present a case where not accepting VA compensation is the smart thing to do. Again, I am not aware of any such scenario but I am willing to listen and be convinced. Fire away. I think we spend too much time on this website trying to solve an issue that does not need to be resolved that leaves wounded warriors confused. Worse, the can be hurt if they erroneously believe they should waive VA for DoD.

Mike
 

maddox13

PEB Forum Regular Member
#4
I actually found a dod finance regulation that answers my question, it states that at any time you can opt to terminate tje waver and go back to receiving dod pay, i will post the regulation number tom for any one that may have similar concerns. I printed myself a copy for peace of mind
 

Jason Perry

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#5
Maddox13,

You should be getting a Retirement Account Statement (RAS). It should show your DoD retirement pay and the fact that DoD retirement is being offset by your VA compensation. If your VA pay should be lowered below your DoD retirement amount, then the waiver would be lowered to the new VA amount and you would then receive the difference from DFAS in the form of DoD disability retirement.

We get numerous posts about choosing between DoD and VA. Can some on e please demonstrate to me where one is required to make this choice? The only choice I am aware of is when one files for VA they chose to have their VA waive their DoD retirement but that waiver is only up to the amount of the VA compensation. Choosing between DoD and VA is a misconstrued notion. You get DoD retirement and as witnessed by the RAS and that retirement is then waived by VA up to the amount of the VA compensation. I see a lot of people spinning their wheels and twisting their guts into knots about choosing between DoD and VA when the only choice you are really making is the choice to allow your VA compensation to replace your DoD retirement but only up to the amount of the VA compensation. I have never seen a case where this was not the best thing to do given the VA compensation is tax-free and the fact the VA waiver can potentially be restored via CRDP or CRSC.

I lay out a challenge for anyone to present a case where not accepting VA compensation is the smart thing to do. Again, I am not aware of any such scenario but I am willing to listen and be convinced. Fire away. I think we spend too much time on this website trying to solve an issue that does not need to be resolved that leaves wounded warriors confused. Worse, the can be hurt if they erroneously believe they should waive VA for DoD.

Mike
I cannot agree more with the points raised in this post....As with most things in life there are always rare exceptions to what makes sense and is correct 99.99999% of the time. I am almost reticent to post this answer to Mike's post because in the overwhelming and near certain majority of the time, it is better to take the waiver of military pay in favor of receiving VA compensation. There are EXCEEDINGLY rare cases dealing with family law issues around divorce and division of property where it can (again even in these cases, very rarely) make a difference. If anyone reading this is thinking that they may fall under this possible scenario, they really need to consult with an attorney in their jurisdiction who is VERY familiar with BOTH family law and the impact of military law on this point). Most folks should ignore my caveat to Mike's correct answer. People should not be twisting themselves up on worrying about what is almost certainly a non-issue for them. (And it is frustrating to post on the same points again and again that have been covered many times). For those who are thinking they may benefit from the very rare exception, the only feasible way to explore this issue is to have competent legal representation in the state court matter you face. (I do not practice law around this issue- like I said, it requires state court representation to get competent advice. However, I am aware of the VERY RARE issues where this may make a difference...I have had people ask me for representation and advice on this point and I have to decline offering advice. The potential issues are just too complex and require addressing state law issues that I cannot help people with). I hope I am not beating a dead horse here- Mike is correct.
 

ranger2992

PEB Forum Veteran
#6
Maddox13,

You should be getting a Retirement Account Statement (RAS). It should show your DoD retirement pay and the fact that DoD retirement is being offset by your VA compensation. If your VA pay should be lowered below your DoD retirement amount, then the waiver would be lowered to the new VA amount and you would then receive the difference from DFAS in the form of DoD disability retirement.

We get numerous posts about choosing between DoD and VA. Can some on e please demonstrate to me where one is required to make this choice? The only choice I am aware of is when one files for VA they chose to have their VA waive their DoD retirement but that waiver is only up to the amount of the VA compensation. Choosing between DoD and VA is a misconstrued notion. You get DoD retirement and as witnessed by the RAS and that retirement is then waived by VA up to the amount of the VA compensation. I see a lot of people spinning their wheels and twisting their guts into knots about choosing between DoD and VA when the only choice you are really making is the choice to allow your VA compensation to replace your DoD retirement but only up to the amount of the VA compensation. I have never seen a case where this was not the best thing to do given the VA compensation is tax-free and the fact the VA waiver can potentially be restored via CRDP or CRSC.

I lay out a challenge for anyone to present a case where not accepting VA compensation is the smart thing to do. Again, I am not aware of any such scenario but I am willing to listen and be convinced. Fire away. I think we spend too much time on this website trying to solve an issue that does not need to be resolved that leaves wounded warriors confused. Worse, the can be hurt if they erroneously believe they should waive VA for DoD.

Mike
Agree 1000%. The process isn't even a question, or brief during transition briefing. It all starts automatically. I got DOD retirement for 4 months while I waited for final ratings. Then on the 5th month and amazing thing happened, I started getting VA compensation and it offset my DOD retirement pay. Funny thing is nobody asked me anytime during this process. I am pretty sure this is the one time the government actually has their stuff together when reaching across agencies.

Maybe this would be a good subject for a sticky. Even better I have been thinking about making a FAQ of the most common questions/misconceptions on here.
 

maddox13

PEB Forum Regular Member
#7
I did not ask if i should, i simply asked if need be could i switch back to dod pay. I even came back and said i answered my own question, , jeesh thanks though
 

Jason Perry

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#8
I did not ask if i should, i simply asked if need be could i switch back to dod pay. I even came back and said i answered my own question, , jeesh thanks though
I don't think anyone was criticizing you or taking aim at your question. (And, it is good that you confirmed what people posted here). The point is that other folks will read your post and may get an erroneous impression or start worrying unnecessarily. (As an aside, should your situation change, I don't think you will need to make an election- the default is that you get paid what is most advantageous to you- you can "opt out" of what is most advantageous, but it should happen automatically).
 

maparker

Staff Member
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#10
"I was rated 40% permanent retirement from DOD and 80% from va . I opted to waive dod pay for va pay, now im nervous because i have read va can lower your rate. I doubt i would ever get dropped below the fourty% awarded by dod, but my question is worse case scenario if the va lowered me much could i switch back to getting paid my permanent retired dod pay? And what regulations would cover this thank you"


My concern was that the OP was under the impression that if their VA was decreased below the amount of their DoD retirement, they would only receive the VA amount because they had elected to receive VA over DoD. The terms "elected to receive VA over DoD" and "elected to receive DoD over VA" befuddles the hell out of me. Where is it in the process that one elects VA over DoD or vice versa? To me this election choice is a dangerous myth. If I am wrong, please specifically tell me where in the process one chooses VA over DoD.

When one undergoes DES evaluation, they can and are encouraged to file for VA compensation. If one elects to do this, (and they always should) they elect to have VA compensation offset their DoD retirement. They are not choosing one over the other as the VA offset is only up to the amount of the DoD retirement. If my DoD retirement is $3,000 and my VA is $2,000 I still get $3,000, $2000 from the VA and $1,000 from DoD. I can never get less than the higher of the two. The VA form use to be and may still be counterintuitive with a section where one had to chose to have their VA offset the DoD retirement. I have seen some ignorantly chose not to do so as it doesn't sound like smart this to do, that is, forfeit their retirement. In those cases where they state they don't want VA to offset their DoD, they actually end up forfeiting their VA compensation which can be higher than their DoD retirement and/or replace their taxable DoD retirement with non taxable VA. Further, this offset of VA of DoD retirement can possibly be partially or completely be restored via CRDP or CRSC but only if one is actually getting VA compensation.

Again, I know of no scenario where it makes sense not to have VA compensation offset DoD retirement. Jason brings up family law (divorce scenarios) as a rare but potential scenario to elect not to get VA. I don't get this at all. VA, as I understand it, is not a divisible asset for divorce purposes although I believe it can be a factor for child support. Again, this is certainly not my strong suit by if anyone can explain the basic framework why such a choice is a smart thing to do, I would like to understand it.

I do know that choosing DoD disability retirement over LOS retirement or choosing one's lower disability rating percentage over their higher LOS percentage to base their disability retirement on could potentially make sense because, as a general rule, disability based income is better protected in divorce court. But again, I fail to see how not choosing to receive VA compensation benefits anyone in any scenario to include divorce scenarios.

Whenever I see a posting that ask if one should chose DoD over VA or vice versa, it is like fingernails on a chalkboard for the reasons I lay out above. Again, my position is that a choice of actually only getting one or the other, (as opposed to VA offsetting DoD retirement dollar for dollar), is a dangerous myth that can set people up for failure.

A related issue I have seen is those who receive severance pay refusing to get VA because it would require them to payback their severance. Again, at the surface level, I can understand why individuals misunderstand the issue. I once saw a statistic from the legacy days where 20% of the individuals receiving severance pay did not file for VA. Not only did these individuals screw themselves out of VA compensation, they missed an opportunity to get their condition properly rated by the VA which could have made the difference in a PDBR filing. My position once again is that one should always file for and receive VA. In the severance situation, the sooner one files for VA, the sooner they payback their severance and thus the sooner they collect VA for all conditions. If one waits to file for VA they are simply forfeiting VA compensation in the interim.

Again, if anyone can specifically describe a scenario where not filing for and accepting VA compensation makes sense, I am all ears.

I agree that we need a pinned and concise response to this issue that can be referenced when these type of questions arise.

Mike
 

ranger2992

PEB Forum Veteran
#11
I need help with CRDP issue. I was recently re-evaluated by the VA and bumped from 90% up to 100%. I am PDRL from the Air Force and rated at 70% from them. After taxes my Retirement check is a little over $2,400 a month, and my 90% VA pmt was $1,789 a month. My VA comp pmt went up to $3,073 and DFAS stopped paying my retirement and my RAS now says $0. If they aren't going to pay me any retirement now then I basically have lost $1,200 a month because I was deemed 100% disabled by the VA. I have 21yrs 5mo military and was retired under Chapter 61. How can it be that they think that I can live off of a sudden pay decrease of $1,200 per mo. will this be corrected in any way. The Texas Veterans Commission person I spoke too seemed to think that since I'm 100% that I should ger all or some of my retirement as well as the VA compensation. Please help me with this...
You have some really great topics and to best get your questions answered, let's go ahead and open your own thread.
 

medicalmystery

PEB Forum Veteran
Registered Member
#12
Am I missing something? When do you actually elect to waive your retirement pay? Is this after ratings are finalized? Is there something you sign or is it automatic during IDES? I don't recall signing any waiver.
 

Jason Perry

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#13
Am I missing something? When do you actually elect to waive your retirement pay? Is this after ratings are finalized? Is there something you sign or is it automatic during IDES? I don't recall signing any waiver.
It would not take effect until your ratings are finalized...but, in the IDES, you normally make the election on the VA Form 21-0819 (Section IV, block 13). This is the "VA/DOD Joint Disability Evaluation Claim Form." You can change your elections later, though.
 

ranger2992

PEB Forum Veteran
#14
Am I missing something? When do you actually elect to waive your retirement pay? Is this after ratings are finalized? Is there something you sign or is it automatic during IDES? I don't recall signing any waiver.
Doh!!

Mike Parker and Jason did a really good job of explaining it above. I would go back a reread what they wrote. The quick answer is you don't need to do anything. It is only rare cases where any interaction by the service member is required at all.

Joe
 

Jason Perry

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#15
Again, I know of no scenario where it makes sense not to have VA compensation offset DoD retirement. Jason brings up family law (divorce scenarios) as a rare but potential scenario to elect not to get VA. I don't get this at all. VA, as I understand it, is not a divisible asset for divorce purposes although I believe it can be a factor for child support. Again, this is certainly not my strong suit by if anyone can explain the basic framework why such a choice is a smart thing to do, I would like to understand it.
Strange things happen in state courts in family law matters. Sometimes, there is an interaction between alimony or division of assets in judicial awards. And, while VA compensation is not a divisible asset, I have read of cases where judges have held the fact that the Veteran has access to monies paid by the VA as a factor in contempt orders for non-payment of ordered amounts....I am not opining on the legality of any of this or that it is a common issue. But, it is not a non-issue.

For a starting point of some scenarios (but, more having to do with CRDP vs. CRSC elections), this article brings up some of the tangentially related issues: http://apps.americanbar.org/family/military/silent/mpd_crdp_crsc.pdf

Again, these issues are very uncommon and the main point raised is correct- it is almost ALWAYS better to waive military pay in favor of VA pay. However, there could be family issues that make this not so- or would require addressing issues in state family law court in order to keep the member out of problems in those family law matters.
 

medicalmystery

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Registered Member
#16
It would not take effect until your ratings are finalized...but, in the IDES, you normally make the election on the VA Form 21-0819 (Section IV, block 13). This is the "VA/DOD Joint Disability Evaluation Claim Form." You can change your elections later, though.
Thank You, I was lost for a minute!
 

Gomez

PEB Forum Veteran
#17
permanent dod medical retirement? can i switch back if necessary?

FYI: Here's the FMR excerpt that maddox13 was probably referring to regarding the withdrawal of the waiver of retired pay:

DoD7000.14-R Financial Management Regulation Volume 7B, Chapter 12 * May 2012
120205. Withdrawal of Waiver
A retiree who has waived retired pay in favor of VA benefits may withdraw the waiver and elect to receive retired pay at any time. The notification of the withdrawal of the previous waiver of retired pay must be submitted to the VA on VA Form 21-526, “Veteran’s Application for Compensation and/or Pension.” The retiree will sign his/her signature on VA Form 21-526, Section VII, Item 21e, under the statement, “Sign here if you want to receive military retired pay instead of VA compensation.” This renouncement of VA benefits does not preclude the retiree from filing a new waiver of retired pay at a later date, enabling the retiree to receive VA benefits again."

Not suggesting that its beneficial to do the waiver, just wanted to cite it for informational purposes.
 

RandalKeith

Registered Member
#19
Okay I'm a little confused. I was diagnosed with type 2 diabetes (incorrectly as it turns out it was type 1 - the PA who diagnosed me looked it up in a book, gave me some pills and sent me home) while I was in the USAF (Oct 86 - Jun 92). I was diagnosed while I was in college on AECP. I received a waiver for type II diabetes. While I was in OTS my blood sugars went nuts and I was unable to complete the training. When I separated the personnel asked me if I wanted to opt for VA Benefits or Military Retirement, I chose the VA Benefits since I heard they were usually better but I hadn't been rated by anyone. On my DD214 they typed Voluntary Separation - miscellaneous reasons. Should I have been able to get Military Retirement status? Can I still do that since they misdiagnosed my condition and I originally had type I diabetes (which is not waiverable)? I would probably still want thhe VA benefits but would really like to be able to go on base to shop as a medically retired veteran. How would that work and what are my options? (The VA has me rated at 60% Service-Connected permanent disability)
 
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