Physical Evaluation Board Forum

For those Servicemember who are separated with severance pay, the 2008 NDAA changed the law regarding the minimum number of years for calculating compensation.

"10 USCS § 1212...(c) (1) The minimum years of service of a member for purposes of subsection (a)(1) shall be as follows:
(A) Six years in the case of a member separated from the armed forces for a disability incurred in line of duty in a combat zone (as designated by the Secretary of Defense for purposes of this subsection) or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense.
(B) Three years in the case of any other member.
(2) The maximum years of service of a member for purposes of subsection (a)(1) shall be 19 years."

This is great for those who are now in the process or those who have been separated since Jan 18, 2008 (the effective date of the act). But what about eveyone else whose case was decided before?

I was thinking about this today, and it strikes me that if you can get a new board, you should be able to qualify under the current law. For a member separated with one year or less, he or she would be able to triple his or her severance pay. And for those who had more than 12 years, you would be able to increase your severance by perhaps as much as a third. This could result in tens of thousands of dollars in extra compensation.

How would you do this? Well, it would take challenging your PEB at the Board for Correction of Military Records. We are past the three year limit (though that is routinely waived) for those who were separated between 2001 and this month in 2005. And we have yet to see how this may interact with the new Physical Disability Review Boards (which may also offer relief in getting a new calculation, we will have to wait and see). But for many members, this may be a route to consider. I would remind you to also take into account the interaction with the VA offset that many of these members face. But for some members who are still fighting for a VA rating, have combat injuries, or some other unique circumstances, this may be an avenue for a substantial award. You should consult an attorney if you want to pursue this.

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Jason

Physical Evaluation Board Forum Administrator
New Members- Read OVERVIEW OF MEB/PEB PROCESS

I dont know Jason. i doubt they would allow that. Akin to a Vet filing an appeal after one year from date of notification.

No, the two concepts are different. A board that is found flawed is as if it never occurred. That being, the new board would apply current law. Here is a quote from a Supreme Court case that explains this "Appellate courts ordinarily apply the law in effect at the time of the appellate decision, see Bradley v. School Board, 416 U.S. 696, 711 (1974). However, a court reviewing an agency decision following an intervening change of policy by the agency should remand to permit the agency to decide in the first instance whether giving the change retrospective effect will best effectuate the policies underlying the agency's governing act." NLRB v. Food Store Employees Union, 417 U.S. 1, 10 (U.S. 1974) So, to sum that up, changes in law get applied at the time of review, changes in regulation may be returned to agency for their decision on what to apply. In this case it is a change to the law (Title 10 Sec. 1212).

The analogy you would apply using a VA claim would be using current law in a rehearing when the RO or BVA finding was in error.

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Jason

Physical Evaluation Board Forum Administrator
New Members- Read OVERVIEW OF MEB/PEB PROCESS

So, what would be the new calculation to see what my severance pay would be?

Please note: The three year time limit for applying to the BCMR is not three years from the action. It is three years after the discovery of the error or injustice. And, as Jason has stated, that limit can be waived in the interest of justice.

Mike

From 10 USC 1552:


(b) No correction may be made under subsection (a)(1) unless the claimant or his heir or legal representative files a request for the correction within three years after he discovers the error or injustice. However, a board established under subsection (a)(1) may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice.

Mcat10,

This will only benefit three classes of Servicemembers who are separated with severance pay. For many, the calculation will be the same.

If you have less than three years of service at separation, you would elevate the years used to calculate years to three. Example:

An Airman with one year of service is separted. The old calculation is 2 times years of service (1) times base pay= 2 months of base pay. Under new calculation, 2 times years of service, but not less than 3 (3), times base pay= 6 times of base pay. Note that this does nothing for those with three or more years of service.

If separation is because of a "disability incurred in line of duty in a combat zone (as designated by the Secretary of Defense for purposes of this subsection) or incurred during the performance of duty in combat-related operations," the minimum is six years. So, now a Sailor with two years of service is injured LOD in a combat zone. Old calculation: 2 times years of service (2) times base pay= 4 times base pay. New calculation: 2 times years of service, but not less than 6,(6)= 12 times base pay.

Finally, under the old law, the maximum years of service used was 12. The law changed that to 19. So, a Marine is separated with 16 years of service. Old calculation was 2 times years of service, but not more than 12 (12) times base pay = 24 times base pay. Under new calculation, two times base pay times years of service (16) = 32 times base pay.

So, this will benefit those with less than three years, less than 6 who are injured LOD in a combat zone or in combat related operations, and those with more than 12 years who were separated.

To me, this will put the BCMRs in this situation. If there is error or injustice in the original proceeding, they either grant the relief requested (presumably a request for retirement) or order a new board. A new board should be adjudicated using current rules. If the new calculations are advantageous, this could work out to the Servicemember's benefit (but remember, you have to look at the interaction with VA compensation).

Finally, the examples I used were not the maximal possible benefit. A Soldier with a year, wounded in Iraq, would calculate his years under the old system as 2 times years of service (1) times base pay= 2 times base pay, while under the new calculation 2 times years of service, but not less than 6 (6) times base pay = 12 times base pay. This Soldier would go from two months base pay to a years base pay. This would be a significant gain. But for others, especially those with between 3 (6 for those LOD in combat zone or combat-related operations) and 12 years of service, I see no benefit.

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Jason

Physical Evaluation Board Forum Administrator
New Members- Read OVERVIEW OF MEB/PEB PROCESS

Jason I see your point, and I am glad that you explained it so I can now explain it to others. Here is my next question. Say I was given severance pay last Oct of 10,000. and because of the new law, I decide to appeal that decision and at some point the review board agrees with me and gives me 30% or more disability. Now that I am medically retired from the military, I would expect that I would have to pay that severance pay back before I begin to receive my retired pay. Correct? Even though I spent it already.

RikersIsland1,

You won't have to "repay" the amount of severance pay, your retirement pay would be subtracted monthly from the amount of overpayment, if any.

It would work like this (this is only from a DoD point of view, it would get more complicated with VA offset working at the same time). They would start with the amount of your severance award. They would then have to calculate how much you would have gotten if retired from the original date. If there was more due to you in retirement pay, you would get that amount in a lump sum. If your severance is more than the retirement due you up till that point, you would then have to subtract the amount of monthly retirement pay from the excess amount of severance pay you received. Each month this would decrease the amount of overpayment. When enough months pass that the balance of overpayment is at a zero balance, you will start to receive the full retirement pay.

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Jason

Physical Evaluation Board Forum Administrator
New Members- Read OVERVIEW OF MEB/PEB PROCESS

Ok, I understand. Is that written anywhere? I was told, obviously incorrectly, that one would have to repay the severance before they would be able to receive the retired pay. Thanks for the clarification.

It is contained in the Federal Management Regulation. Here is a direct link:
http://www.defenselink.mil/comptroll...rch/07A50p.pdf . Look under 500104.

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Jason

Physical Evaluation Board Forum Administrator
New Members- Read OVERVIEW OF MEB/PEB PROCESS