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brianwl

PEB Forum Regular Member
PEB Forum Veteran
I've always wondered what advantage there would be for a retiree to get an increase in their DoD disability rating. Can you clear this up for me?

I also don't understand why a person with 20 years in would rather go through MEB/PEB process and get Ch61 rather than simply retire on TIS?

Thanks Brian
 

Jason Perry

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Money

The short answer is, of course, money.

Let me first address the regular retirement at 20 years versus a Chapter 61 retirement. A few points to remember. At 20 years of service, a servicemember is eligible to retire with 50% of his base pay. With some exceptions (CSB/Redux), every year of service past 20 will accrue an additional 2.5%. Assume the Soldier is Boarded at 20 years. If he gets rated at 50%, there is no extra benefit. But imagine if he gets 60%. Now he is eligible for the same rate of pay he would have gotten had he served an additional 4 years. He should take the Chapter 61 retirement. (A bonus- even as a Ch. 61 retiree, he will be eligible for concurrent receipt).

The same logic applies to the retiree without regular TIS eligibility. Higher rating means, of course, more money. That is obvious, but what is a little more tricky is the next step - figuring out offset from VA compensation. Each case is going to be different, but depending on degree of disability and dependency status, the military retirement may overcome any offset from the VA. Part of the problem in knowing before the VA rating is awarded is the generally known fact that not only will the VA capture not-unfitting conditions that are service connected, but also tend to be more generous with their awards. Figuring out the offset will be highly fact specific, but worth doing the calculation.

Did that answer the question?
 

brianwl

PEB Forum Regular Member
PEB Forum Veteran
Ok, so let me ask this.

I was retired under Ch61 with 14yrs 8mo for bad knees in 1993. They did not include my Major Depressive Disorder in my PEB. The PEB gave me 40% for my knees only after much fighting.

The VA rated me 10% for each knee and 10% bilateral and gave me 50% for the MDD totaling 70%.

Shouild I request a correction to military records and get the MDD added so that my military rating equals the VA rating?

Brian
 

Jason Perry

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One problem I see

From the facts you give, the MDD is being rated as Considerable (look at Table 8, DODI 1332.39). The problem with going back to AF Board for Correction of Military Records is proving the level of disability at the time you were Boarded. You obviously have well documented disability now. But do you have evidence of the condition being unfitting back then? The Board will only grant relief if you can show that you were unfit because of the MDD back then. Also, generally, you should file appeals within 3 years (though you can request a waiver). The most likely scenario for success on this issue would be if you had depressive symptoms that were then attributed to medication. This would also give you a good reason for untimely filing of appeal as you would not have known about the MDD until much later. These are just some thoughts, it would take a lot more facts to give a full answer. Was there any mention of MDD or any other mental condition back then?
 

brokegijoe

PEB Forum Regular Member
Actually there is no monetary gain for ch 61 over 20

If you read the public law on both CRSC and CRDP is says that you will only be paid for actual years of service. The only advantage would be if there was no concurrent receipt in effect. Before it's passage the money statement was correct.

A lot of people are mistaken about how the law actually reads, especially some of the older chapter 61's

Broke
 

Jason Perry

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You have to run the calculations

Brokegijoe, thanks for pointing that out. You are correct about Chap. 61 retirees who are over 20 and rated over 50% at VA. Because they will get a minimum of 50% base pay, the same is true for those Chap. 61 retirees over 20 years rated at less than 50%. The CRDP will ironically keep them at the same rate once they receive more than 50% of their HI-3 base pay. A Chap. 61 with less than 20 can often do better with higher rating from the military.

Let’s run through some examples:

(For simplicity sake, I am skipping the HI-3 calculation because the effect will not change the outcomes enough to warrant a change in decision to pursue appeals.)

Chap. 61 with less than 20 yrs of service.
An O-5 with over 18 yrs of service and base pay of $6968.10, retired with a disability rating of 30%. He will get $2090.43 in military retirement. Rated at VA at 70% which gets him $1303 because he is married with one child. Since he is not eligible for regular length of service retirement, he loses out on CRDP. He gets only $2090.43 . Now if he is successful in appealing his military rating and gets 50% he now is eligible for $3484.05. Appealing the military decision in his case earned him an extra $1393.62 .

An E-5 with 9 yrs of service and base pay of $2454.90 retired with a disability rating of 30%. He will get $736.47 in military retirement. Rated by VA at 70%, which gets him $1303 because he is married with one child. Since he is not eligible for regular length of service retirement, he loses out on CRDP. Unless he can up his rating from military to 60% he gains nothing. This veteran would be better served by trying to increase his VA compensation to 80% which would garner him $1511.

Chap. 61 with more than 20 rated at 50% or higher by military and CDRP eligible.

In Jan 2007, an E-7 with 20 years and one day of service is permanently retired at 50%. He draws military retirement pay of ($3644.10 x .50) = $1822.50. Had he been regularly retired he would draw the same amount. He is rated 90% disabled by the VA. He is married with one child and thus is entitled to $1699 in VA compensation. Take the $1699 and subtract his CRDP computation rate of $500 = $1199. Multiply that by the 2007 restoration rate of 49.6% equals= $594.70. Add the CDRP table rate of $500 and that equals $1094.70 . Next subtract the difference between this Chap. 61 retirement rate and the regular length of service retirement. That figure is $0 (We need to account for the difference between regular retirement and Chap. 61 retirement to account for what I believe brokejoe was talking about, Sec 1414 (b), the text of which is below. He should receive a total amount of $2917.20 monthly in 2007 (military retired pay plus CRDP= $2917.20) . At the full phase in 2014, he would be entitled to $3021.50 ($1822.50 + $1199)

Okay, same soldier submits an appeal to the ABCMR which rules in Dec 2007 that he shall be rated at 70% by the military. He is now entitled to $2550.87 monthly military retired pay. This means the difference between his Chap. 61 retirement and length of service retirement has now grown to $728.37 ($2550.87 - $1822.50). His VA entitlement does not change, it remains at $1094.70. Add $2550.87 + 1094.70 = $3645.57. Subtract $728.37 (difference between length of service and Chap 61 retirement) and you end up with the same amount, $2917.20. For this servicemember, there is no monetary advantage to appealing.

For those that do not reach permanent disability retirement (PDR),regardless of VA compensation there is a clear advantage to getting to PDR because of the medical benefits that the veteran will get along with eligible dependents.
Bottom line, you have to calculate the relationship between the military and VA disability compensation. Sometimes this can be difficult because you will have to make some informed guesses. Except for TDRL cases, you almost always have a rating from the military well before the VA. Hence, some decisions are made in a vacuum. It is possible to wait, but you can run into some statute of limitations problems if you do so.

Title 10 USC, Sec. 1414 (b), "
`(b) Special Rules for Chapter 61 Disability Retirees-

`(1) CAREER RETIREES- 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."
 
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