Vets group claims DoD violates severance law

maparker

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Vets group claims DoD violates severance law


By Kelly Kennedy - Staff writer
Posted : Wednesday Jun 18, 2008 6:32:53 EDT

At the end of a boisterous House Veterans Affairs Committee hearing in which lawmakers lambasted Veterans Affairs Department and Pentagon officials for not meeting various deadlines for improving care for wounded combat troops, Disabled American Veterans dropped a quiet bombshell.

The Pentagon “knowingly violated the law and ignored the intent of Congress” in implementing a provision of the 2008 Defense Authorization Act that lawmakers designed to enhance disability severance pay for wounded and injured service members, wrote Kerry Baker, associate national legislative director for DAV.

Baker argued that Congress created Section 1646 of the 2008 Defense Authorization Act with the intent that service members injured in combat, in a combat zone, or performing tasks related to combat — such as training — would not have to pay back any disability retirement severance pay they receive from the Defense Department before becoming eligible for VA disability compensation, as has been the case under long-standing policy.

But Baker said David S.C. Chu, undersecretary of defense for personnel and readiness, sent out a “directive-type memorandum” March 13 instructing that only those injured in a combat zone in the line of duty or as a direct result of armed conflict do not have to pay back their severance money.

“This action has intentionally read ‘hazardous service,’ ‘conditions simulating war,’ and ‘instrumentality of war’ completely out of the law,” Baker wrote.

Chu’s action, he wrote, “forces one to question his true resolve to care for those he sends into battle, or orders to train for battle.”

Baker said he believes the decision was purely monetary.

“We can think of no other conceivable reason … to circumvent the law as he has done here,” Baker wrote. “To answer the question of ‘why,’ Congress need only determine in whose budget the disability compensation is deposited once offset by VA. We believe the answer to that question is the [Defense Department] budget.”

Defense Department spokeswoman Eileen Lainez said that was not Chu’s intent.

“Rest assured that saving money was not the driver in the implementation,” she said in an e-mail. “The statutory intent of [the law] clearly and appropriately focuses the ‘enhanced disability severance’ to those service members where the unfitting condition is a result of direct participation and performance of duty in the war effort.”

But Baker said the memo intentionally leaves out people clearly included in both the law’s definition of “combat-related disability” and the Defense Department’s own definition of “combat-related,” and that Congress had made clear its intent that anyone with a combat-related disability should be included.

The memo is important, he said, because a service member who breaks his back in a helicopter accident at Fort Bragg, N.C., while training to deploy to Iraq still must pay back his severance before qualifying for VA disability compensation.

“It can take 20 years” to pay back the severance, Baker said. “We do not view this as an oversight. We view this as an intentional effort to conserve monetary resources at the expense of disabled veterans.”

The 2008 Defense Authorization Act states: “No deduction may be made under paragraph (1) in the case of disability severance pay received by a member for a disability incurred in line of duty in a combat zone or incurred during performance of duty in combat-related operations as designated by the secretary of defense.”

Baker said it is the second part of that sentence — “incurred during performance of duty in combat-related operations” — that has been misconstrued.

According to the 2008 Defense Authorization Act, a “combat-related disability” occurs “as a direct result of armed conflict, while engaged in hazardous service, in the performance of duty under conditions simulating war, or through an instrumentality of war.”

The Defense Department has defined “combat-related” as being “attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict.”

That includes hazardous service, such as flight duty, parachute duty, demolition duty, experimental stress duty and diving duty. An instrumentality of war is a weapon, a combat vehicle, or a sickness caused by fumes, gases or explosion of military ordnance.

But Chu’s memo states that “incurred during performance of duty in combat-related operations” will be defined by paragraph E3.P5.1.2 of Defense Department Instruction 1332.28 — “armed conflict.”

Chu’s narrower definition includes injuries “as a direct result of armed conflict,” Baker wrote, or “in the line of duty in a combat zone,” leading to questions of whether someone playing basketball in the Green Zone would qualify. The Defense Department had not answered that question.

Baker, who submitted written testimony but did not appear before the committee for questioning, said the memo has not affected many veterans yet, but it has the potential to affect “tens of thousands.”

It applies only to service members medically retired after Jan. 28, 2008, with disability ratings of less than 30 percent from the Defense Department.

Baker said the net result is that troops injured during training for combat — situations that Congress meant to cover with the recent change in law — will not be covered, and troops injured in those situations will still have to repay their severance money before they can get VA disability payments.

Lainez said Congress left it up to Pentagon officials to decide the definition of “combat-related operations.

“Clearly the statutory intent is to provide wounded warriors enhanced disability compensation,” she wrote. “Saving money was not a policy development factor … rather, [it was] ensuring proper compensation for those service members who are wounded, ill or injured as a result of armed conflict in the combat zone.”

Baker disagreed, urging Congress to revisit the issue to prevent defense officials “from continuing such blatant disregard for the law and for the livelihood and welfare of those who stand up to defend the country.”
 

morhets

PEB Forum Regular Member
Mike,

I was aware of the National Defense Authorization Act 2008 (NDAA 2008) when Sen Patty Murray first told me about it in June of 07. The rhetoric at the time was that it would be back dated and it would apply to all service connected and combat connect veterans. It is obvious that I rolled a crap shoot on this one because I missed the deadline of Jan 28 08 by five months which cost me 155k in severance pay. So I am here to say I am ready to fight for all of us that lost out on the NDAA 2008 because of those in Washington who wanted to save a buck, on their six figure salary.

Bill
 

maparker

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But it sounds like you are eligible for the Physical Disability Board of Review. If you can demonstrate you should have been rated 30% + for your unfitting disability, you could be medecally retired instead. What did the VA rate your ubfitting disability?

Mike

SEC. 1643. REVIEW OF SEPARATION OF MEMBERS OF THE ARMED FORCES SEPARATED FROM SERVICE WITH A DISABILITY RATING OF 20 PERCENT DISABLED OR LESS.

(a) BOARD REQUIRED.—

(1) IN GENERAL.—Chapter 79 of title 10, United States Code, is amended by inserting after section 1554 the following new section:

§ 1554a. Review of separation with disability rating of 20 percent disabled or less

(a) IN GENERAL.—

(1) The Secretary of Defense shall establish within the Office of the Secretary of Defense a board of review to review the disability determinations of covered individuals by Physical Evaluation Boards. The board shall be known as the ‘Physical Disability Board of Review’.

(2) The Physical Disability Board of Review shall consist of not less than three members appointed by the Secretary.

(b) COVERED INDIVIDUALS.—For purposes of this section, covered individuals are members and former members of the armed forces who, during the period beginning on September 11, 2001, and ending on December 31,2009—

(1) are separated from the armed forces due to unfitness for duty due to a medical condition with a disability rating of 20 percent disabled or less; and

(2) are found to be not eligible for retirement.

(c) REVIEW.—

(1) Upon the request of a covered individual, or a surviving spouse, next of kin, or legal representative of a covered individual, the Physical Disability Board of Review shall review the findings and decisions of the Physical Evaluation Board with respect to such covered individual. Subject to paragraph (3), upon its own motion, the Physical Disability Board of Review may review the findings and decisions of the Physical Evaluation Board with respect to a covered individual.

(2) The review by the Physical Disability Board of Review under paragraph (1) shall be based on the records of the armed force concerned and such other evidence as may be presented to the Physical Disability Board of Review. A witness may present evidence to the Board by affidavit or by any other means considered acceptable by the Secretary of Defense.

(3) If the Physical Disability Board of Review proposes to review, upon its own motion, the findings and decisions of the Physical Evaluation Board with respect to a covered individual, the Physical Disability Board of Review shall notify the covered individual, or a surviving spouse, next of kin, or legal representative of the covered individual, of the proposed review and obtain the consent of the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual before proceeding with the review.

(4) With respect to any review by the Physical Disability Board of Review of the findings and decisions of the Physical Evaluation Board with respect to a covered individual, whether initiated at the request of the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual or initiated by the Physical Disability Board of Review, the Physical Disability Board of Review shall notify the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual that, as a result of the request or consent, the covered individual or a surviving spouse, next of kin, or legal representative of the covered individual may not seek relief from the Board for Correction of Military Records operated by the Secretary concerned.

(d) AUTHORIZED RECOMMENDATIONS.—The Physical Disability Board of Review may, as a result of its findings under a review under subsection (c), recommend to the Secretary concerned the following (as applicable) with respect to a covered individual:

(1) No recharacterization of the separation of such individual or modification of the disability rating previously assigned such individual.

(2) The recharacterization of the separation of such individual to retirement for disability.

(3) The modification of the disability rating previously assigned such individual by the Physical Evaluation Board concerned, which modified disability rating may not be a reduction of the disability rating previously assigned such individual by that Physical Evaluation Board.

(4) The issuance of a new disability rating for such individual.

(e) CORRECTION OF MILITARY RECORDS.—

(1) The Secretary concerned may correct the military records of a covered individual in accordance with a recommendation made by the Physical Disability Board of Review under subsection (d). Any such correction may be made effective as of the effective date of the action taken on the report of the Physical Evaluation Board to which such recommendation relates.

(2) In the case of a member previously separated pursuant to the findings and decision of a Physical Evaluation Board together with a lump-sum or other payment of back pay and allowances at separation, the amount of pay or other monetary benefits to which such member would be entitled based on the member’s military record as corrected shall be reduced to take into account receipt of such lump-sum or other payment in such manner as the Secretary of Defense considers appropriate.

(3) If the Physical Disability Board of Review makes a recommendation not to correct the military records of a covered individual, the action taken on the report of the Physical Evaluation Board to which such recommendation relates shall be treated as final as of the date of such action.

(f) REGULATIONS.—

(1) This section shall be carried out in accordance with regulations prescribed by the Secretary of Defense.

(2) The regulations under paragraph (1) shall specify reasonable deadlines for the performance of reviews required by this section.

(3) The regulations under paragraph (1) shall specify the effect of a determination or pending determination of a Physical Evaluation Board on considerations by boards for correction of military records under section 1552 of this title.’’.

(2) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 79 of such title is amended by inserting after the item relating to section 1554 the following new item:

‘‘1554a. Review of separation with disability rating of 20 percent disabled or less.’’.

(b) IMPLEMENTATION.—The Secretary of Defense shall establish the board of review required by section 1554a of title 10, United States Code (as added by subsection (a)), and prescribe the regulations required by such section, not later than 90 days after the date of the enactment of this Act.
 

morhets

PEB Forum Regular Member
Mike,

I was was discharged with 10% from the Army and the VA rated me with 90 % and I am still waiting on two more diagnosis. The question that comes to mind is what happens to 155k I received as severance pay if they in turn retire me? I did not know that they started this revisit on rating. I remember when Sen Murray was talking about it but I did not know it was in effect. Thanks for the information I will start investigate if the benefits out weight the recoupment.

Again thanks, Bill
 

b72treadwell

PEB Forum Regular Member
PEB Forum Veteran
I am wondering something....I was rated at 20% by the Army for my back injury, but they did not rate it as combat related even though I was injured doing combatives. I would think that would be included as combat related since it is one on one fighting with another servicemember as if you were simulating being in a fight with an enemy. That is just one of many errors I feel took place in my case. How can I go about having this reviewed or re-done?
 

Orion69

PEB Forum Regular Member
PEB Forum Veteran
I was medically discharged for a designated combat incurred disability, rated ten percent and given a 55K severance. I was discharged on 12 JUL 07..what a crock that somehow I don't qualify uder this law. The DoD and the VA have shown that they are not interested in taking care of wounded combat veterans, only in preserving their 'fatcat' salaries. I will be applying to the PDBR because I was rated 50% for that one issue alone by the VA. If I get medically retired I assume they will reduce my retirement by the total severance amount received already, that is fair. However, will the VA return the me all the money they have already withheld from me? (Through CRSC??) Anyway, keep the faith folks, sooner or later we'll wear them down!!! :cool:
 

Jason Perry

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Orion,

From the facts you stated, you should get a restoration of your offset VA compensation under CRSC. I think there are potential issues with the effective date of the PDBR findings, but your CRSC should be retroactive. I plan on fighting this issue of what effective date they award, but as you said, sooner or later we will wear them down.

Hope you get a good result when it is all said and done!
 

Orion69

PEB Forum Regular Member
PEB Forum Veteran
Jason,

I know this is an old post but I wanted to update you. Earlier this year I received a 50% medical retirement and it looks like it's going to 70% for the PTSD lawsuit in the settlement. I did get full restoration of my VA offset from retroactive CRSC a couple of months ago (finally). However, now the VA is trying to offset all the money paid to me because they say I was paid concurrently medical retiree pay (which was my severance previously) and VA compensation. So I am in the process of appealing how they are proposing to reduce my VA comp and waiting for a hearing on that. I'm so confused about the retirement "pay" (that I don't receive because it's less than VA comp) and how that affects my recoupment schedule. I think it's a bunch of crap really, they need to authorize full concurrent receipt for medical retirees and stop all this recoupment nonsense because it really creates a financial hardship for retirees in my position. I cannot help that the Army screwed the pooch when they discharged me at 10% with severance instead of the 50% they should have. I feel like I'm being severely punished for being a medical retiree (fully combat related). Do you know any resources I can refer to about this situation? Thanks!!

Kevin
Orion,

From the facts you stated, you should get a restoration of your offset VA compensation under CRSC. I think there are potential issues with the effective date of the PDBR findings, but your CRSC should be retroactive. I plan on fighting this issue of what effective date they award, but as you said, sooner or later we will wear them down.

Hope you get a good result when it is all said and done!
 
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