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Favorable ABCMR Advisory finding... what's the next/best step?

FloridaInjuredInCombat

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PEB Forum Veteran
Registered Member
I filed two years ago with the ABCMR to recoup VA Disability Benefits that were deducted from my INCAP pay, citing DODI 1241.01 (dated April 2016) and Army Directive 2017-17, which both state;

"Soldiers may receive both INCAP and U.S. Department of Veterans Affairs (VA) benefits. Because VA benefits are not taxable, they do not meet the definition of earned income. INCAP will not be offset by VA benefits received..." [quoted from Army Directive 2017-17, wording similar on DODI 1241.01].

Today I received notice from the ABCMR I have 15 days to respond with the ABCMR's Advisory Opinion, which if I'm reading it correctly, they are recommending to the Board in my favor.

Understanding that any advice given me is not legal advice nor will I hold you nor anyone responsible for it, I have a couple questions of the PEB Forum members?

(a) What kind of time frame does it normally take from Advisory Board finding till the Board gives its finding? I ask because the time limitation to file with CoFC (6 years) is approaching (May 2021).

(b) Is it likely that the Board will accept the Advisory Board finding, directing that I be given relief, and will that relief likely include the Overpayment being returned to me? (Approx. $12K of the $16K wrongful debt has already been overpaid to them).

(c) Should I respond to the Board during this step in the process? Other than to ask for Full Relief (including the return of the monies already taken) and possibly to show that the Army knew this debt was wrongful as early as 2009, when an Army JAG legal opinion stated the recoupment was not IAW the Law, not sure I'd have much more to give them.

Thanks in advance for any advice / help on this, SSG (Ret)
 

Attachments

  • ABCMR Recommendation Favorable, Rees REDACTED - Copy.pdf
    189.4 KB · Views: 11
Last edited:

Guardguy11

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I would certainly seek legal counsel for this if you haven't already. As for a time frame, I filed a BMCR mid-March last year and received an advisory opinion in my favor mid April. I e-mailed the BCMR board last week and they said that the board convened for my case on December 16th and said I should hear something back soon.

My board was for the Air Force so I don't know if I would use that as a template for the Army. One thing I can say pretty confidently is that your board will not meet before May pending a miracle occurs on your behalf. People can wait 12-18 months before the board meets. I suppose mine was pretty early all things considered.
 

Provis

Moderator
I filed two years ago with the ABCMR to recoup VA Disability Benefits that were deducted from my INCAP pay, citing DODI 1241.01 (dated April 2016) and Army Directive 2017-17, which both state;

"Soldiers may receive both INCAP and U.S. Department of Veterans Affairs (VA) benefits. Because VA benefits are not taxable, they do not meet the definition of earned income. INCAP will not be offset by VA benefits received..." [quoted from Army Directive 2017-17, wording similar on DODI 1241.01].

Today I received notice from the ABCMR I have 15 days to respond with the ABCMR's Advisory Opinion, which if I'm reading it correctly, they are recommending to the Board in my favor.

Understanding that any advice given me is not legal advice nor will I hold you nor anyone responsible for it, I have a couple questions of the PEB Forum members?

(a) What kind of time frame does it normally take from Advisory Board finding till the Board gives its finding? I ask because the time limitation to file with CoFC (6 years) is approaching (May 2021).

(b) Is it likely that the Board will accept the Advisory Board finding, directing that I be given relief, and will that relief likely include the Overpayment being returned to me? (Approx. $12K of the $16K wrongful debt has already been overpaid to them).

(c) Should I respond to the Board during this step in the process? Other than to ask for Full Relief (including the return of the monies already taken) and possibly to show that the Army knew this debt was wrongful as early as 2009, when an Army JAG legal opinion stated the recoupment was not IAW the Law, not sure I'd have much more to give them.

Thanks in advance for any advice / help on this, SSG (Ret)
I would definitely seed advice from an attorney. The letter states relief from the debt but doesn't address monies already paid toward paying that debt off. I would be concerned that they just stop collecting the remaining debt without refunding you what you have already paid towards this illegitimate debt.
 

FloridaInjuredInCombat

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PEB Forum Veteran
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When an Army Regulation or Policy violates Federal Law?
Any ideas on where this would be found as a Legal Argument or a Federal Law that covers it?

I ask, because the ABCMR Advisory board recommends relief to the main Board, but leaves the door open saying that the Wrongful Recoupment I was subjected to pre-dated the DODI and Sec. of the Army memo stating that such recoupment was NOT in compliance with Federal Law.

I have proof that the Army JAG knew (and so stated) that such recoupment was in violation from a "Statutory viewpoint" (meaning Legal viewpoint), but went on to say "it was Army Policy" to do so (in violation of the Law), and indicated that was OK (which I don't believe it is).

I want to make the argument, that POLICY CAN NOT EXIST IN VIOLATION OF FEDERAL LAW, and as such, the Recoupment was ALWAYS Wrongful, not just after the DODI stated so.

Any help would be greatly appreciated... thanks.

Attached is the 2009 Army JAG finding I'm referring to.
 

Attachments

  • ARMY JAG Legal Opinion Feb 2009 (2).pdf
    671.2 KB · Views: 2

FloridaInjuredInCombat

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
I think you just stated your position clearly and concisely. Perhaps attached the law that was violated.
Thank you. I took your advice and just formed a short letter to add to the packet for the Board. Off to the races...
Now I have to make the call of whether to file a claim in the Court of Federal Claims. The 6 year statue of limitations is fast approaching in May of this year. I seriously doubt if I'll hear something back from the ABCMR for a year or more. So I have to weigh the odds of the Board deciding in my favor, against the cost of filing in the Court of Federal Claims. If I gambe on the Board and they decide against me, I'm fairly certain I'll win in Court. But if I have to spend thousands to get a claim filed in Court, it will be money wasted if the Board decides in my favor, as I'll no longer have standing (as an injured Party) to continue the case.

I will gather up everything I have, and make an appointment to talk to an Attorney. Not to throw shade on the Legal Profession, but it's been MY experience if they don't see $$$$ signs they tend to say "you have no case" regardless of the merits. I ran into this years ago when I was wrongfully terminated from a job for having been in the hospital for Chron's disease. After being turned down by a couple attorneys I filed the case myself with the State EEOC and won. Too many Lawyers look for Money over Justice IMHO, but I have to say that Jason Perry and those like him are a God Send that is most appreciated.

When I talk to the Attorney, I will ask if this can be filed as a CLASS ACTION, as there are likely a LOT of others who DFAS has continued to recoup this debt on, even after the Sec. of Defense and Sec. of the Army both have told them to stop. DFAS is not big on listening when it comes to that. I filed two appeals to them, citing the DODI and Army Directive, and both came back rubber stamped "NO". I would like to see it go to the Court as a CLASS ACTION, so it would help put a STOP to cheating injured Soldiers, right at a time they have damn little hope of fighting back. Same goes with cheating them out of INCAP pay, and medical treatment.

On to the next battle... THANK YOU for the advice.
 
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