Severance vs Chapter 61 Retirement

brianwl

PEB Forum Regular Member
PEB Forum Veteran
As a military person one of the most nerve wracking situations we come into is when we can no longer perform our duty as a result of injury or illness.
At that point we are faced with going through the MEB/PEB process. While this process is nerve wracking due to the amount of time it takes and not knowing what your future holds, it is survivable.

The MEB makes a determination as to whether you are fit or not fit for duty. The MEB does not make a determination or recommendation for the rating of your disability. If the MEB finds you fit for duty you can return to duty or if you feel you are not fit for duty you can’t appeal the MEB findings. If the MEB finds you not fit for duty your case will be forwarded to the PEB for determination of you disability ratings or percentage.

The PEB will evaluate all medical evidence and any evidence that you provide to make their determination as to what percentage of disability you have.

Any rating below 30% should not be accepted.

Any rating below 30% will result in severance pay. While the severance check seems like a large amount up front you will not be able to keep that money. You will also not have any other benefits from the military.

Whether you are rated at 30% and above or receive severance you will have to pay it back to the VA when you receive your rating from the VA. The only exceptions are Senior NCOs and Officers as their retirement will be much higher than the average soldier’s.

The 30% rating is what is known as Chapter 61 Disability Retirement. While the VA will recoup the majority if not all of the your retirement you will still have all of the other retirement benefits just as if you had been allowed to complete your 20 years. That includes but not limited to Commissary and BX/PX privileges for you and your family, Tricare, AMC travel, and all MWR privileges.

You will receive a lot of pressure from the PEB, your Unit, and others to accept the first offer which will usually be an offer of severance. It is important to remember that this is your life and that of your family’s that you are dealing with, you have given your all and you deserve to be fairly compensated for your service connected disabilities.
 

Navy Spook

PEB Forum Regular Member
Whether you are rated at 30% and above or receive severance you will have to pay it back to the VA when you receive your rating from the VA. The only exceptions are Senior NCOs and Officers as their retirement will be much higher than the average soldier’s.

I am uncertain what you are saying in the above paragraph. It reads as if "Senior NCOs and Officers will not have their severance/retirement pay recouped by the VA."

I am pretty certain that was not your intent.

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Also, during my PEB appeal my "government provided representative" informed me that, "You do realize that fewer that 1/2 of 1% of PEB ratings get changed on appeal." He was rather incredulous that I had not been informed of this. But then the regular defender wasn't available. I had the JAG prosecutor on loan so the defender could have a vacation....

Now this was in 1990 during a draw-down. It was also the Navy. There has been a lot of new attention placed on the PEB process lately, so nobody these days should take my PEB experience as the "norm".
 

crazyjim

PEB Forum Regular Member
veterans tax

If this was the case, my retired pay would not be subject to the offset. I retired in 1989 as an E-7 SFC. Where was representation? I dont remember it even being offered. I was placed on med hold by the Neurosurgeon and pretty much did the waiting game. Did send a letter of appeal to the MEB in California, to appeal the 30% rating, with no success. No legal support system! Just ny two cents worth.
 

crazyjim

PEB Forum Regular Member
appeal

Thank you for the education.
I did not appear before the board. a Major had went to his appeals board in California and said I would have to walk a great distance to appear and no transportation was available. (he also had back problems) The LTC I was working for suggested a letter as an alternative.
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
Makes me mad

Also, during my PEB appeal my "government provided representative" informed me that, "You do realize that fewer that 1/2 of 1% of PEB ratings get changed on appeal." He was rather incredulous that I had not been informed of this. But then the regular defender wasn't available. I had the JAG prosecutor on loan so the defender could have a vacation....

I hate reading stories like that, Navy Spook. It sounds like the JAG was trying to talk you out of "appealing" in the first place.

Before I go on, it is important to clarify appeal. In Army parlance, you submit a rebuttal to the formal Board's findings. The President of the PEB responds with any changes or tells you that the PEB stands by its decision. If no change, the rebuttal is forwarded along with the rest of the case file to the Army Physical Disability Agency for review. After the APDA acts, the next step would most often be an application to Army Board for Correction of Military Records (ABCMR). After that, you are looking at Federal Courts for relief.

Okay, down to what has me fired up about your experiences. First, the trial counsel (JAG prosecutor) represents the government. While technically your interests are not opposed to the governments (the government is supposed to be interested in getting the correct result) it bothers me that the appearance of a conflict of interest exists. Next, maybe your JAG had previous experience at the PEB, but probably not. If he didn't, that fires me up because he probably was not competent to give you the representation all servicemembers deserve. There should have been a fully trained regularly assigned counsel there, not someone filling in. Finally, if he was talking about "appealing" the Informal PEB's findings by demanding the Formal Board, he was wrong. In my experience, about a third of these "appeals" are successful. I have no idea where he got .05%.
 

Navy Spook

PEB Forum Regular Member
I'm pretty sure the Navy process is the same as the other services, I went through the process only once almost 20 years ago. I'm sure I am confusing my MEB with my PEB and appeals with reconsiderations.

The board I went through was held at Great Lakes and was comprised of two O-5's (one a doctor and one a Marine line officer) and one O-4.

I wanted to stay in service, so I was writing an "appeal" to somebody about every two weeks.

After I was separated I had three years to apply to the BCNR (Board for Correction of Naval Records).

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While the JAG prosecutor was not "adversarial", I certainly didn't feel warm and fuzzy by it.

The board in Great Lakes was my last hope for staying active duty.
 

brianwl

PEB Forum Regular Member
PEB Forum Veteran
I am uncertain what you are saying in the above paragraph. It reads as if "Senior NCOs and Officers will not have their severance/retirement pay recouped by the VA."

I am pretty certain that was not your intent.

My intent was to say that Officers and SNCO's who get the Ch61 retirement might have a higher retirement than the VA compensation, therefore they may not lose all of it.

With regard to severance, count it gone.
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
You have the right to counsel

nccountrybumpkin,

You have the right to legal counsel. After the informal board has met and given a decision that you disagree with you can demand a formal board. At that point, you can choose to use the services of a JAG, provided at no cost to you, or you can retain civilian counsel, at no cost to the government.

In many cases, the JAG does a fine job. My biggest concern with JAG representation (remember, I was one, so I know the pros and cons) was that if your case is not decided correctly at the informal, getting representation at that point can be too late in the game for an attorney to help you. This is not always the case, but I would advise a consultation early in the process. If your attorney is ethical, he or she will tell you if your case will benefit from early intervention versus being handled competently by a JAG. That, however, opens another can of worms, because not all attorneys will put your interest above their fee.

I try to keep this site as uncommercial as possible. I do actively practice in this area, so I will send you a PM with a link to more information. However, I had not previously considered collecting names of other civilian practictioners. Many firms advertise in this area, but few have a regular practice. I will think about putting together a referral list, but that will take me some time.
 
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