Information Pertaining to: If you are >20 years of service when your PEB decision comes down…

P

PERS-95

Well-Known Member
PEB Forum Veteran
Registered Member
Edited to add by RonG, Moderator, 26 July 2022:

Jason Perry responded to this thread with the following:
One point- the regulations of the military branches do discuss this issue (I am not going to do a deep dive now and provide specific cites to each service's regulations). However, this option is a requirement of Federal Law- 10 U.S. Code § 1209 - Transfer to inactive status list instead of separation.
This issue of electing retirement for a length of service retirement vice a separation finding during the LDES or IDES process really only arises for reservists because when an active duty member has 20 years or more, the PEBs "automatically" decide the case as a disability retirement with entitlement to retired pay calculated on the length of service whenever such a member has any condition that is determined to be unfitting.
It is obviously better for the reservist member who is found to be unfit with a disability rated less than 30% to make their election under 10 U.S.C. Section 1209 while still in service. (Why? Because doing so negates the issue of challenging the default election and makes it "cleaner").
I have dealt with this issue recently in an Air Force case and the service reached out to the member to ensure that they made an election. I have seen this happen in other branches, too.
However, if the PEBLO or the PEB did not ask the member about their election (which, I usually see), then I still think that the member who wants this outcome (reserve retirement over separation pay), then they will likely get it on request to the BCMR.
SECNAV M-1850.1 Ch 4 Section 5.b.(10): WAIVER OF DISABILITY RETIREMENT OR SEPARATION

End of Jason Perry’s comments


—————————

Bottom line: You get DES/disability retirement (TDRL or PDRL) **OR** Fleet Reserve retirement. One or the other. Not both.

The time to choose is during your 15 days when you are deciding to take the 40% PDRL or whatever the PEB is offering vice the % that you have earned from your years of service.

You *need* to get your DES attorney involved!!!

Why in the *hell* would you take TDRL (or even PDRL) at 50% rating, when your 25 years of accumulated service rates you 62.5% pay at your high-3? Doesn’t make any sense. T/PDRL vs Fleet Reserve, you both get retiree Tricare coverage. So, same benefit. So what’s the benefit of a lower pay % from the disability retirement? If you understand, you are smarter than I am. Yet we see it every day. And it’s a clusterfuck to fix. Basically requires a BCNR. [edit by moderator: The assertion that the retiree will receive a lower amount than what his/her longevity amount is incorrect. CH 61 retirees receive the amount computed by DFAS that benefits the retiree the most. I explained this elsewhere in this thread. RonG]

(**Caveat: this only works for AD. RC members, it makes *much* more sense to take PDRL, even if it is at a lower rate, because you get paid right away instead of waiting until age 60 for regular retirement. Just know that if you go PDRL now, you can’t switch to Fleet retirement at age 60 for the higher %.)

Talk to your DES attorney! Don’t rely on your PEBLO! *These two sentences are excellent advice. RonG*
 
Last edited:
PERS-95 said:
(**Caveat: this only works for AD. RC members, it makes *much* more sense to take PDRL, even if it is at a lower rate, because you get paid right away instead of waiting until age 60 for regular retirement. Just know that if you go PDRL now, you can’t switch to Fleet retirement at age 60 for the higher %.)

Talk to your DES attorney! Don’t rely on your PEBLO!
Click to expand...
Hate to say it, but sucks to be you guys. I know for a fact that Army RC members have the opportunity to elect their RC retirement at age 60 (or earlier as defined by law). However, if you take an "early retirement" make sure you have private insurance as you lose your Tricare until age 60, by law. Until that point, you can be on PDRL. I am in that situation myself, I am PDRL and could have filed for my early RC retirement at 52 1/2, however, I didn't want to lose my Tricare, so I'll wait until 60 to get the extra several hundred dollars, wasn't worth paying for health insurance on the economy.

Now, to answer your "Why in the *hell* ..." question: if you have combat-related conditions, you *may* end up with a higher compensation due to CRSC, DFAS makes the determination initially as to which is financially better: CRDP or disability retirement + CRSC (more or all of which is non-taxable). So, for the most part, taking CRDP is the best route, however, I haven't seen anything saying you get **one or the other** as DFAS issues a letter every January for the veteran to elect either-or, and the letter has a side-by-side number comparison. I'm guessing you work on the personnel side of the Navy or Marine Corps.
 
Ref: "Now, to answer your "Why in the *hell* ..." question: if you have combat-related conditions, you *may* end up with a higher compensation due to CRSC, DFAS makes the determination initially as to which is financially better: CRDP or disability retirement + CRSC (more or all of which is non-taxable)."

1. CRSC can never be more than CRDP, although CRDP can be more than CRSC in certain circumstances. Note: The service branches (other than the USCG) do not compute retired pay, although an estimate could be provided. DFAS computes retired pay for all the services except the USCG.

2. Some Chapter 61 disability retirees receive residual retired pay (amount that exceeds the VA offset). The combination of residual retired pay and CRSC cannot exceed the longevity portion of retired pay. DFAS computation of retired pay for disability retirees:
Temporary Disability Retirement List
If you are found unfit to perform your duties because of a disability that may not be permanent, you may be placed on the Temporary Disability List (TDRL).

Your retired pay will be computed using one of two methods:
  • your disability percentage (using a minimum of 50 percent for payment purposes while on the TDRL), referred to as Method A, or
  • your years of active service, referred to as Method B.

Your pay will be computed based on whichever is more beneficial for you

Permanent Disability Retired List
If your disability is found to be permanent and is rated at 30 percent or greater, or you have 20 or more years of service, you will be placed on the Permanent Disability Retired List (PDRL).

Your retired pay will be computed using one of two methods.

  • Your disability percentage, referred to as Method A.
  • Your years of active service, referred to as Method B.
Your pay will be computed based on whichever method is more beneficial for you.

3. Since the entitlement to retired pay (example, regular retirement) is set forth by law, recommend anyone who is denied retired pay earned as the result of 20 years active duty, visit the JAG office or write their elected representatives. First, I would begin with the chain of command.

Ron
 
Reference: SECNAV M-1850.1 Ch 4 Section 5.b.(10): WAIVER OF DISABILITY RETIREMENT OR SEPARATION


SECNAV M-1850.1 23 Sep 2019 4-28

(10) Waiver of Disability Retirement or Separation

(a) Members Qualified for Retirement or Separation for Other Reasons.

A Service Member who meets all prerequisites for retirement or separation because of physical disability but is also qualified for retirement for other reasons or transfer to the Fleet Reserve or Fleet Marine Corps Reserve may request to be separated for reasons other than disability.

(1) A Service Member who wants Non-Disability Retirement must submit a request to the PPEB via the appropriate Service Headquarters in a timely manner prior to the effective date of disability retirement stating the reason for the request. Service Headquarters shall make a specific recommendation, accompanied with a supporting rationale, prior to forwarding to the PPEB.

(2) A Service Member who wants a non-disability transfer to the Fleet Reserve or the Fleet Marine Corps Reserve must submit a request to transfer to the Fleet Reserve in accordance with reference (i) or the Fleet Marine Corps Reserve Application. Along with the application, per references (i) and (j) the Service Member must forward a signed waiver of their right to referral into the DES, as appropriate, and request an effective date of not more than 60 days from the date of application. A copy of the waiver is to be provided to the PPEB for finalization of the member’s case. (b) Authority to Waive Disability Retirement/Separation. At the request of the Service Member, the PPEB is authorized to waive disability retirement or separation where consistent with Federal law and this instruction.

------------

Earlier, I mentioned cases of CH 61 retirees who qualified for non-regular retirement with payment upon reaching age 60 (earlier in some cases) AND submittal of an application for RC retirement and subsequent approval by the service concerned. Similarly, a Navy member can submit a request for transfer to the Fleet Reservice, etc. as described in the cited reference. In cases such as those where the retiree loses his/her disability status (e.g., removal from TDRL), their eligibility for a regular retirement (i.e., 20 years AD) is not negated. An application would be required of course. That member should consult with JAG if problems exist.

The problems discussed in this thread and one other are not the fault of DFAS. If a retiree is removed from the TDRL with no other retirement document filed with DFAS, they must terminate the payment of retired pay until a new retirement authorization is received by DFAS, having been forwarded by the service concerned.

Ron

cc: @Jason Perry @Provis @chaplaincharlie @Guardguy11
 
Last edited:
@RonG, doesn’t section (1) suggest that if you do not request the fleet reserve retirement prior to TDRL/PDRL going active, that you lose the opportunity altogether? I know once you go TDRL/PDRL, you are no longer able to request fleet retirement via NSIPS, because the program drops your eligibility from the system. And PERS-8 has a hell of a time getting people back into such a status that they can even make the request. Just seems like the instruction and the supporting programs shut the door on fleet reserve retirement if you go the disability retirement route.
 
Hello @PERS-95

I do not interpret it that way; however, all my time was in the Army. My MOS was finance and my secondary was personnel.
Of course, that does not mean I have expertise in Navy matters.

My thoughts include that a service manual cannot preempt a service member’s legal right to an earned retirement.

I sent a message about this to “Ask Navy” or something like that. The reply was all copy and paste info that did not address the questions asked.

It was like asking for help selecting vegetables and an instruction manual for fixing a transmission was provided. Rhetorical: Who is minding the store?

Thank you for bringing these issues forward for discussion.

Ron

Edited to add: My questions were submitted to MyNavy Career Center.
 
I am a 20yr Active Army Artilleryman! My MEB just came with one unretainable condition. Left Shoulder Impingement Syndrome. My Commander stated that I can not fulfill my duties and the MEB wrote not to be fit for duty in 12 months. 2 rotator surgeries and pyhiscal therapy that followed. Do you think the PEB will find me unfit?
 
Redleg77 said:
I am a 20yr Active Army Artilleryman! My MEB just came with one unretainable condition. Left Shoulder Impingement Syndrome. My Commander stated that I can not fulfill my duties and the MEB wrote not to be fit for duty in 12 months. 2 rotator surgeries and pyhiscal therapy that followed. Do you think the PEB will find me unfit?
Click to expand...
You’re in the Navy section, boss. ;)
 
Redleg77 said:
I am a 20yr Active Army Artilleryman! My MEB just came with one unretainable condition. Left Shoulder Impingement Syndrome. My Commander stated that I can not fulfill my duties and the MEB wrote not to be fit for duty in 12 months. 2 rotator surgeries and pyhiscal therapy that followed. Do you think the PEB will find me unfit?
Click to expand...
Can you repost this in the MEB section (https://www.pebforum.com/forums/medical-evaluation-board.42/)? I'll follow up with my thoughts there.
 
Per DFAS:

Permanent Disability Retired List
If your disability is found to be permanent and is rated at 30 percent or greater, or you have 20 or more years of service, you will be placed on the Permanent Disability Retired List (PDRL).

Your retired pay will be computed using one of two methods.

  • Your disability percentage, referred to as Method A.
  • Your years of active service, referred to as Method B.
Your pay will be computed based on whichever method is more beneficial for you.

Per U.S. Law, a member would NOT be placed on the TDRL if they have qualified for a regular retirement. They would be placed on the PDRL. Earlier, in this thread I explained the computation of retired pay. It is not as was presented in the first part of this tread by another.

10 U.S.C. § 1201 - U.S. Code - Unannotated Title 10. Armed Forces § 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 described in subsection (c) 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 or while absent as described in subsection (c)(3), the Secretary may retire the member, with retired pay computed under section 1401 of this title, 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 referred to in subsection (a) are 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 computed under section 1208 of this title;  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 September 14, 1978.
(c) Eligible members. --This section and sections 1202 and 1203 of this title apply to the following members:
(1)  A member of a regular component of the armed forces entitled to basic pay.
(2)  Any other member of the armed forces entitled to basic pay who has been called or ordered to active duty (other than for training under section 10148(a) of this title) for a period of more than 30 days.
(3)  Any other member of the armed forces who is on active duty but is not entitled to basic pay by reason of section 502(b) of title 37 due to authorized absence (A) to participate in an educational program, or (B) for an emergency purpose, as determined by the Secretary concerned.

Ron

Edited to add:
Some Chapter 61 disability retirees receive residual retired pay (amount that exceeds the VA offset). The combination of residual retired pay and CRSC cannot exceed the longevity portion of retired pay. DFAS computation of retired pay for disability retirees:
Temporary Disability Retirement List
If you are found unfit to perform your duties because of a disability that may not be permanent, you may be placed on the Temporary Disability List (TDRL).

Your retired pay will be computed using one of two methods:
  • your disability percentage (using a minimum of 50 percent for payment purposes while on the TDRL), referred to as Method A, or
  • your years of active service, referred to as Method B.

Your pay will be computed based on whichever is more beneficial for you

Permanent Disability Retired List
If your disability is found to be permanent and is rated at 30 percent or greater, or you have 20 or more years of service, you will be placed on the Permanent Disability Retired List (PDRL).

Your retired pay will be computed using one of two methods.

  • Your disability percentage, referred to as Method A.
  • Your years of active service, referred to as Method B.
Your pay will be computed based on whichever method is more beneficial for you.

3. Since the entitlement to retired pay (example, regular retirement) is set forth by law, recommend anyone who is denied retired pay earned as the result of 20 years active duty, visit the JAG office or write their elected representatives. First, I would begin with the chain of command.
 
Last edited:
One point- the regulations of the military branches do discuss this issue (I am not going to do a deep dive now and provide specific cites to each service's regulations). However, this option is a requirement of Federal Law- 10 U.S. Code § 1209 - Transfer to inactive status list instead of separation.
This issue of electing retirement for a length of service retirement vice a separation finding during the LDES or IDES process really only arises for reservists because when an active duty member has 20 years or more, the PEBs "automatically" decide the case as a disability retirement with entitlement to retired pay calculated on the length of service whenever such a member has any condition that is determined to be unfitting.
It is obviously better for the reservist member who is found to be unfit with a disability rated less than 30% to make their election under 10 U.S.C. Section 1209 while still in service. (Why? Because doing so negates the issue of challenging the default election and makes it "cleaner").
I have dealt with this issue recently in an Air Force case and the service reached out to the member to ensure that they made an election. I have seen this happen in other branches, too.
However, if the PEBLO or the PEB did not ask the member about their election (which, I usually see), then I still think that the member who wants this outcome (reserve retirement over separation pay), then they will likely get it on request to the BCMR.
 
Good afternoon all,
I read the previous treads. I’m in a situation where the PEB met 05Jun22 and found me UNFIT with 0% DOD Rating and the disposition is to separate with severance pay. I made 20 years on 21May22. VA proposed disability is 100%. First requested FPEB to get that fixed to disability retirement, that was the recommendation from PEBLOS, the next day I called the PEB desk and the person I talked to told me that they don’t take in consideration current time in service and that the PEB will only change the unfit to fit or viceversa determination during a formal PEB and that the service headquarters handle that, then because of that I went and cancelled the formal PEB and accepted the findings as is, also because my attorney told me that will get fixed at PERS level once they get the PEB findings. Now I received the actual message from SECNAV directing me to separate with severance pay, I have contacted PERS, PEBLO, Attorney and they all are pointing their fingers at each other and no one has gave me a straight way forward. PERS says to tell the PEBLO to cancel the separation message and apply for fleet reserve. I contacted the PEBLO and he send me to talk to my attorney and seek legal advice. Attorney send me to ask the PEBLO if they can call the PEB and request to update the disposition since I don’t qualify for severance pay.
Has anyone dealt with this?
 
SXAG said:
Good afternoon all,
I read the previous treads. I’m in a situation where the PEB met 05Jun22 and found me UNFIT with 0% DOD Rating and the disposition is to separate with severance pay. I made 20 years on 21May22. VA proposed disability is 100%. First requested FPEB to get that fixed to disability retirement, that was the recommendation from PEBLOS, the next day I called the PEB desk and the person I talked to told me that they don’t take in consideration current time in service and that the PEB will only change the unfit to fit or viceversa determination during a formal PEB and that the service headquarters handle that, then because of that I went and cancelled the formal PEB and accepted the findings as is, also because my attorney told me that will get fixed at PERS level once they get the PEB findings. Now I received the actual message from SECNAV directing me to separate with severance pay, I have contacted PERS, PEBLO, Attorney and they all are pointing their fingers at each other and no one has gave me a straight way forward. PERS says to tell the PEBLO to cancel the separation message and apply for fleet reserve. I contacted the PEBLO and he send me to talk to my attorney and seek legal advice. Attorney send me to ask the PEBLO if they can call the PEB and request to update the disposition since I don’t qualify for severance pay.
Has anyone dealt with this?
Click to expand...

Yes. It happens with some frequency. Bottom line is there is an authority issue between PEB and PERS. PEB works for SECNAV, so technically outranks PERS. But PERS is the “service headquarters,” so some people think they should be able to do what they want. Issue is, the PEB findings are considered to be an order from higher authority, so….can PERS really change a finding from “separate” to “retire” or vice versa? And that’s the discussion.

Anyway, it’s a known issue and they’re working through it (I think)?
 
Yes that’s the issue, I think PEB needs to check and double check current time in service before they make a recommendation to separate or retire a sailor, it’s a big difference and huge impact in our life after the Navy. I’m getting ready to submit a congressional inquiry about this.
 
SXAG said:
Yes that’s the issue, I think PEB needs to check and double check current time in service before they make a recommendation to separate or retire a sailor, it’s a big difference and huge impact in our life after the Navy. I’m getting ready to submit a congressional inquiry about this.
Click to expand...
Something so easy being made so difficult, I have yet to see that on the Army side of IDES (luckily) although I am sure it happens. Good luck with this and I hope the congressional comes through for you, this should NOT be so damn difficult ffs!
 
SXAG said:
Yes that’s the issue, I think PEB needs to check and double check current time in service before they make a recommendation to separate or retire a sailor, it’s a big difference and huge impact in our life after the Navy. I’m getting ready to submit a congressional inquiry about this.
Click to expand...
I’m not saying you shouldn’t, just be aware that PEB literally has no access to any systems or paperwork that tells them how many years in service a Sailor has.
 
SXAG said:
Good afternoon all,
I read the previous treads. I’m in a situation where the PEB met 05Jun22 and found me UNFIT with 0% DOD Rating and the disposition is to separate with severance pay. I made 20 years on 21May22. VA proposed disability is 100%. First requested FPEB to get that fixed to disability retirement, that was the recommendation from PEBLOS, the next day I called the PEB desk and the person I talked to told me that they don’t take in consideration current time in service and that the PEB will only change the unfit to fit or viceversa determination during a formal PEB and that the service headquarters handle that, then because of that I went and cancelled the formal PEB and accepted the findings as is, also because my attorney told me that will get fixed at PERS level once they get the PEB findings. Now I received the actual message from SECNAV directing me to separate with severance pay, I have contacted PERS, PEBLO, Attorney and they all are pointing their fingers at each other and no one has gave me a straight way forward. PERS says to tell the PEBLO to cancel the separation message and apply for fleet reserve. I contacted the PEBLO and he send me to talk to my attorney and seek legal advice. Attorney send me to ask the PEBLO if they can call the PEB and request to update the disposition since I don’t qualify for severance pay.
Has anyone dealt with this?
Click to expand...
Your post scares the crap out of me. My PEB findings came back on May 10, 2022 with an unfit finding with 10% DoD disability so it said I was to be separated with severance. This was 10 days before I hit my 20 year active duty mark.

So I was advised to appeal the findings to get me officially past my 20 so I could retire. Now I'm past my 20 so I'm wondering if I could just cancel that appeal and accept the findings and PERS would see that I'm past my 20 year mark so I will be retiring with benefits and not separated with severance. (I have not heard anything from the board yet about my appeal.)

I also sent in a Permanent Limited Duty (PLD) request (with full command endorsement) to take me to my EAOS which is June 2023. However I have since heard that a PLD request won't even be approved as long as my PEB is still "open" since I'm appealing it.

PLEBO and attorneys and everyone else are saying the Navy won't separate me because I'm over 20 years active duty now. Why do I get the feeling they just want me to accept the findings and get out of their hair? I'm so confused about this whole thing and I'm going to freak the you-know-what out if I end up getting a message that I'm to be separated with severance.

Any help would be appreciated. :(
 
You must log in or register to reply here.
Top