Do disabled veterans need a 180-day waiver for federal employment?

legalbeagle

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I first posted this gouge in the Military Physical Evaluation Board Info FB group, but also wanted to share here.

The question that has been asked by several (including myself) is: do disabled vets follow the same 180 day pause for federal employment that normal retirees do?

The BLUF answer is "no".

Here's why: OPM has a website that defines various aspects of veteran hiring eligibility to federal employment, which can be found at:

https://www.opm.gov/.../vet-guide-for-hr-professionals/

If you look under the "180-Day Restriction" rule on that site, you'll see the relevant statute (5 U.S.C. 3326), which can be read at:

https://www.law.cornell.edu/uscode/text/5/3326

The statute articulates that "A retired member of the armed forces may be appointed...during the period of 180 days..."

This requires us to ask "What's the definition of "retired member of the armed forces". For that, we need to look at the definitions section under 5 U.S.C, specifically (5 U.S.C. 2108)

https://www.law.cornell.edu/uscode/text/5/2108

Under 5 U.S.C. 2108, a "retired member of the armed forces" means a member or former member of the armed forces who is entitled, under statute, to retired, retirement, or retainer pay on account of service as a member."

This definition is VERY important, because "disabled veteran" is also defined in this section. "Disabled veteran" is a separate and distinct entity under the code. Congress was not ambiguous in this regard, as both definitions are articulated in plain language.

Using this interpretation, we can correctly interpret that the Congress intended that ONLY RETIRED members of the armed forces, NOT disabled veterans, must be bound by the 180-day waiting period.

In conclusion, disabled veterans are NOT bound to the 180-day waiting period, as Congress chose to encumber only a "retired member of the armed forces" under this restriction.

Hopefully, this helps out other forum members in a similar situation.
 
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RonG

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Although this does not affect me, I am curious how cases involving a person who receives a Chapter 61 retirement are considered.


Ron
 

legalbeagle

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RonG,

Under 5 U.S.C., Congress defined "disabled veteran" as:

"“disabled veteran” means an individual who has served on active duty in the armed forces, (except as provided under section 2108a) has been separated therefrom under honorable conditions, and has established the present existence of a service-connected disability or is receiving compensation, disability retirement benefits, or pension because of a public statute administered by the Department of Veterans Affairs or a military department".

So, even if Chapter 61 retirees are still granted "retirements", due to compensation payments by VA and/or DoD, they still do not fall under the 180-day rule. Again, Congress is pretty specific what delineates a "retired member of the armed forces" and a "disabled veteran".
 

afangel2005

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I first posted this gouge in the Military Physical Evaluation Board Info FB group, but also wanted to share here.

The question that has been asked by several (including myself) is: do disabled vets follow the same 180 day pause for federal employment that normal retirees do?

The BLUF answer is "no".

Here's why: OPM has a website that defines various aspects of veteran hiring eligibility to federal employment, which can be found at:

https://www.opm.gov/.../vet-guide-for-hr-professionals/

If you look under the "180-Day Restriction" rule on that site, you'll see the relevant statute (5 U.S.C. 3326), which can be read at:

https://www.law.cornell.edu/uscode/text/5/3326

The statute articulates that "A retired member of the armed forces may be appointed...during the period of 180 days..."

This requires us to ask "What's the definition of "retired member of the armed forces". For that, we need to look at the definitions section under 5 U.S.C, specifically (5 U.S.C. 2108)

https://www.law.cornell.edu/uscode/text/5/2108

Under 5 U.S.C. 2108, a "retired member of the armed forces" means a member or former member of the armed forces who is entitled, under statute, to retired, retirement, or retainer pay on account of service as a member."

This definition is VERY important, because "disabled veteran" is also defined in this section. "Disabled veteran" is a separate and distinct entity under the code. Congress was not ambiguous in this regard, as both definitions are articulated in plain language.

Using this interpretation, we can correctly interpret that the Congress intended that ONLY RETIRED members of the armed forces, NOT disabled veterans, must be bound by the 180-day waiting period.

In conclusion, disabled veterans are NOT bound to the 180-day waiting period, as Congress chose to encumber only a "retired member of the armed forces" under this restriction.

Hopefully, this helps out other forum members in a similar situation.
That's great information, but unfortunately here's the information I've gotten from the Air Force. Has anyone had any success with actually getting a Federal Agency to hire them, if medically retired and within the 180 days, without a waiver?

From AFPC Program Oversight:

Response: A military service member that is retired for 180 days or less will require a waiver for civilian employment unless the position hired into is covered by a special pay authority established under 5 USC 5305, or the appointment is directed by the Secretary of the military component. The waiver requirement is for retiring/retired service members entitled to retirement/retired/retainer pay and is not based on the reason for retirement nor is it based on the source of payment.

This has been confirmed with A1 General Counsel, that the "entitlement" to receive retired, retirement, or retainer pay also applies to the service member with less than 20 years active duty that was medically retired. The source of their payment is from a different entity such as the Department of Veterans Affairs, but the entitlement remains. Another way to look at this is that the service member wouldn't be entitled to receive the regular payments from the VA in lieu of retired, retirement or retainer pay, had the service member not been entitled to retirement with a disability rating of 30% or more. DoDI 1402.01, "Employment of Retired Members of the Armed Forces" also defines a retired member of the Armed Forces as "a member or former member of the Armed Forces who is entitled to retired, retirement, or retainer pay."

Title 37 USC 2011, Pay and Allowances of the Uniformed Services, section 101(21) definition of pay states: the term "pay" includes basic pay, special pay, retainer pay, incentive pay, retired pay, and equivalent pay, but does not include allowances. The pay from the VA is an equivalent pay, and in some cases, may exceed the retirement pay. There are four military retirement plans: Final Pay, High-36, CBS/REDUX, and Disability. Each retirement plan has qualifying criteria. For Disability, it is when determined medically unfit for continued service with a DoD disability rating of at least 30%. The disability retirement pay is computed using two different methods and the method that is most beneficial to the service member determines the amount of pay.

We also have confirmation from AF Military Separation and AFPC Legal that medically retired service members are retired, are entitled to retired pay, are entitled to and issued a valid retired ID card, receive retirement orders, and have a DFAS pay account established (even if receiving VA compensation). Therefore, as a retired military service member, the 180-day waiver requirement applies.
 

Padgettra

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Interesting thread yet to my knowledge my HR office has not experienced the Disability retiree situation. We go ahead and interview, select and make an offer. If the candidate accepts, then we hold the position until they can start. In general, anytime an agency offers and job and the candidate accepts, then we have to hold the position for them to separate from their current employment, leave active duty, or for the 180 days to time out. This has happened a few times in the past 7 years that I have worked HR and the agency did this for me back in 2012 when accepted a position in March, yet did not come off MEDCON orders until July. Our National Guard agency employs around 1200 military technicians and Title 5 civilians. Ron P
 

legalbeagle

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Afangel 2005,

First off, let me say that I am a Navy Paralegal, not an attorney, so anything that I write on this forum should not be construed as legal advice (because I obviously, cannot and would not make that assertion, attorney or not).

With that out of the way, I believe that the A1 General Counsel, et. al., are incorrectly interpreting the Congressional statutes here. More importantly, remember the "chain of command" IRT what law overrides another (Congressional statutes override agency instructions in the event of clear and unambiguous language). Because Congress saw fit to define "retired member" and "disabled veteran" as separate legal definitions, any subsequent laws/instructions MUST follow those definitions in an unambiguous manner, else the courts can "void for vagueness" those laws that are ambiguous. All that being said, I have reviewed your citations and have found nothing that overrides 5 U.S.C. 2108, particularly anything that combines "retired member" and "disabled veteran" under one umbrella as your POC's have interpreted.

37 U.S.C. 101(21) also does not combine VA disabled pay and DoD retired pay under one umbrella. Instead, these definitions are constrained to DoD members only, not VA. Please note that VA and DoD are separate Federal entities, and if there is a statute that is intended to serve the purpose of combining the two pays, then it must also be codified in statute.

...Of which brings me back to 5 U.S.C. 2108, where Congress DID in fact combine the two agencies (VA and DoD) in order to delineate how each should be interpreted in subsequent statutes and agency regulations. Very curious that you write "We also have confirmation from AF Military Separation and AFPC Legal that medically retired service members are retired..." I would be very interested to see what publications they explicitly cite to that justifies that assertion.

In 5 U.S.C 2108, "Retired member of the armed forces" is defined as a member/former member who is ENTITLED, under statute, to retired, retirement, or retainer PAY on account of service as a member." This definition defines that the "retired member" must be ENTITLED to PAY. As the word "pay" is not explicitly defined in this chapter, it would then be interpreted via the plain-language definition of "To pay is to deliver to a creditor the value of a debt, either in money or in goods, for his acceptance, by which the debt is discharged" (Blacks Law Dictionary). Another simpler plain-language definition of "pay" is legal tender...money.

Going further, a <20 year disabled veteran would NOT be ENTITLED to pay. Even if they chose not to waive their VA disability for DoD retirement pay, they would not gain any benefit, due to the statutes mandating 20 years of computable service time to gain eligibility (10 U.S.C. Part II). As such, we can rule out that "retired member" CANNOT be combined with "disabled veteran", so long as they are NOT ENTITLED to pay (aka: the <20 year vet).

So, the very long conclusion that I interpret is that those disabled vets with LESS than 20 years of service do NOT have to wait 180 days. However, those disabled vets who DO have 20 years or more DO have to wait 180 days.

I am not bound to my interpretation, and if there is something that I am missing, then please let me know.
 

afangel2005

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Afangel 2005,

First off, let me say that I am a Navy Paralegal, not an attorney, so anything that I write on this forum should not be construed as legal advice (because I obviously, cannot and would not make that assertion, attorney or not).

With that out of the way, I believe that the A1 General Counsel, et. al., are incorrectly interpreting the Congressional statutes here. More importantly, remember the "chain of command" IRT what law overrides another (Congressional statutes override agency instructions in the event of clear and unambiguous language). Because Congress saw fit to define "retired member" and "disabled veteran" as separate legal definitions, any subsequent laws/instructions MUST follow those definitions in an unambiguous manner, else the courts can "void for vagueness" those laws that are ambiguous. All that being said, I have reviewed your citations and have found nothing that overrides 5 U.S.C. 2108, particularly anything that combines "retired member" and "disabled veteran" under one umbrella as your POC's have interpreted.

37 U.S.C. 101(21) also does not combine VA disabled pay and DoD retired pay under one umbrella. Instead, these definitions are constrained to DoD members only, not VA. Please note that VA and DoD are separate Federal entities, and if there is a statute that is intended to serve the purpose of combining the two pays, then it must also be codified in statute.

...Of which brings me back to 5 U.S.C. 2108, where Congress DID in fact combine the two agencies (VA and DoD) in order to delineate how each should be interpreted in subsequent statutes and agency regulations. Very curious that you write "We also have confirmation from AF Military Separation and AFPC Legal that medically retired service members are retired..." I would be very interested to see what publications they explicitly cite to that justifies that assertion.

In 5 U.S.C 2108, "Retired member of the armed forces" is defined as a member/former member who is ENTITLED, under statute, to retired, retirement, or retainer PAY on account of service as a member." This definition defines that the "retired member" must be ENTITLED to PAY. As the word "pay" is not explicitly defined in this chapter, it would then be interpreted via the plain-language definition of "To pay is to deliver to a creditor the value of a debt, either in money or in goods, for his acceptance, by which the debt is discharged" (Blacks Law Dictionary). Another simpler plain-language definition of "pay" is legal tender...money.

Going further, a <20 year disabled veteran would NOT be ENTITLED to pay. Even if they chose not to waive their VA disability for DoD retirement pay, they would not gain any benefit, due to the statutes mandating 20 years of computable service time to gain eligibility (10 U.S.C. Part II). As such, we can rule out that "retired member" CANNOT be combined with "disabled veteran", so long as they are NOT ENTITLED to pay (aka: the <20 year vet).

So, the very long conclusion that I interpret is that those disabled vets with LESS than 20 years of service do NOT have to wait 180 days. However, those disabled vets who DO have 20 years or more DO have to wait 180 days.

I am not bound to my interpretation, and if there is something that I am missing, then please let me know.
Oh I completely agree with your interpretation! The struggle is convincing the Air Force or other federal agencies of that. My hope, by posting this, was to get someone who had success on convincing a federal agency that the 180 day rule didn't apply to them and was hired on as a civilian, to share their story in how they were able to do that.

Thank you for doing the legwork of finding the references supporting that the 180 day rule isn't intended to be applied to medical retirees with less than 20 years!
 

legalbeagle

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Afangel2005,

I will be experiencing this myself in a few months. The Navy HR department that I have relayed this information to has thus-far concurred with my interpretations, and I don't expect any roadblocks as a result. I also work at OJAG, so I have the benefit of attorneys reviewing my analysis within my COC.

Once I'm hired, I'll come back and share, but also wanted to share my interim legal research with the hope it helps others. This gets into the weeds, and as such, is easy to miss by hiring authorities who prefer "elevator speech" explanations.

Also, I re-read everything I've written thus-far and need to clarify that I am speaking explicitly about those vets with LESS than 20 years of service, and who were medically retired. Vets with 20 years or MORE of service WILL fall under the 180-day rule unfortunately.
 

RGZWS6

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FWIW, Having just attended the 5-day transition course (TAP), this topic came up during a discussion. A point that is often overlooked is that this 180-day rule applies only to DoD Civil Service. You can still retire from DoD and get hired on to VA, IRS, DHS etc. without a waiver or special provisions.
 

Dani2920

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LegalBeagle, any update on the hiring? Interested to see if you were successful.
 

RonG

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Afangel 2005,
[selected information]

In 5 U.S.C 2108, "Retired member of the armed forces" is defined as a member/former member who is ENTITLED, under statute, to retired, retirement, or retainer PAY on account of service as a member." This definition defines that the "retired member" must be ENTITLED to PAY. As the word "pay" is not explicitly defined in this chapter, it would then be interpreted via the plain-language definition of "To pay is to deliver to a creditor the value of a debt, either in money or in goods, for his acceptance, by which the debt is discharged" (Blacks Law Dictionary). Another simpler plain-language definition of "pay" is legal tender...money.

Going further, a <20 year disabled veteran would NOT be ENTITLED to pay. Even if they chose not to waive their VA disability for DoD retirement pay, they would not gain any benefit, due to the statutes mandating 20 years of computable service time to gain eligibility (10 U.S.C. Part II). As such, we can rule out that "retired member" CANNOT be combined with "disabled veteran", so long as they are NOT ENTITLED to pay (aka: the <20 year vet).

So, the very long conclusion that I interpret is that those disabled vets with LESS than 20 years of service do NOT have to wait 180 days. However, those disabled vets who DO have 20 years or more DO have to wait 180 days.

I am not bound to my interpretation, and if there is something that I am missing, then please let me know.
Hello,

There are other retirees who are referred to with that status in legal discussions who do not have => 20 active duty.
Example:
2012-2025 Temporary Early Retirement Authority
Temporary Early Retirement Authority (TERA) authorized members with over 15, but less than 20 years of total active duty service to apply for early retirement. The opportunity to retire under this TERA program is expected to end by December 31, 2025. DFAS LINK <----
Also
DoD 7000.14-R Financial Management Regulation Volume 7B, Chapter 1 * March 2018
010205. Temporary Early Retirement Authority (TERA) ----LINK

Disability Retired Pay --
DoD 7000.14-R Financial Management Regulation Volume 7B, Chapter 1 * March 2018d
*0102 MILITARY RETIRED PAY – INITIAL ENTITLEMENTS
"A. Military retired pay is divided into three general categories: retired pay for Regular service, retired pay for non-Regular (Reserve/Guard) service, and retired pay for physical disability. With the exception of retirement for physical disability and certain temporary authorities for early retirement, a member must be credited with completion of at least 20 years of service in order to be eligible for retired/retainer pay. See section 0103 for determining years of service for retired/retainer pay eligibility .
*0102 MILITARY RETIRED PAY – INITIAL ENTITLEMENTS LINK<-----

Comments:
---A disability retiree can agree to accept VA compensation by waiving retired pay dollar for dollar in the amount of VA compensation received. Occasionally, there is residual (left over) retired pay the retiree can keep.

--Agreement to waive retired pay in order to accept VA compensation does not change the retired status or the retiree’s entitlement to TRICARE and other benefits. There is still an accounting of the retired pay and at least one DFAS RAS will be produced each year.

Opinion:

I think that the question is not whether those who receive Disability Retired Pay are considered to be "retired" (they clearly are), but rather does the complete waiver of retired pay to receive VA compensation exclude them from the 180-day rule for DoD retirement?

Ron
 

Dani2920

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I agree Ron.

Even DFAS states, "A member of the TDRL or the PDRL is a retired member of the armed forces. You are entitled to all rights and privileges of a military retiree."
 

RonG

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I agree Ron.
Even DFAS states, "A member of the TDRL or the PDRL is a retired member of the armed forces. You are entitled to all rights and privileges of a military retiree."
Selected additional information on the subject.
Ref: DoD 7000.14-R Financial Management Regulation Volume 7B, Chapter 1 * March 2018

*010101. Purpose. This chapter provides information for the entitlement to military retirement pay.

*010201. Overview. A. Military retired pay is divided into three general categories: retired pay for Regular service, retired pay for non-Regular (Reserve/Guard) service, and retired pay for physical disability.

*010203. Retired Pay Multiplier. B. A member who retires for disability may choose a multiplier based on years of service or based on the disability percentage awarded by the Service. However, if the member chooses the Service disability percentage, then the percentage is capped at 75 percent.

With regard to ENTITLEMENT to retired pay via a disability retirement:

Table 1-3. Disability Retirement

A person who is ordered to active duty and
is determined to be
unfit to perform duties of his or her office, grade, rank, or rating because of physical disability
may retire under 10 U.S.C. §
1204, rule 1
or
1205, rule 2
or
1201, rule 1
or
1202, rule 2
[All depending on the number or days active duty involved.]

10 U.S.C. § 1204; 1205; 1201; 1203 are the statutory authority for military disability retirement (therefore, entitlement).

How OPM uses this legal status with regard to the 180-day rule seems to vary.

Ron
 

legalbeagle

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Registered Member
I agree Ron.

Even DFAS states, "A member of the TDRL or the PDRL is a retired member of the armed forces. You are entitled to all rights and privileges of a military retiree."
Yes, and I can also say (come September) that I'll be a "retired member of the armed forces", but 5 U.S.C. 2108 would strictly define my interpretation to be incorrect. Instead, I will be a "disabled veteran" as far as Congress is concerned (via statute).

Even government agencies can be in error when interpreting statutes. There is another member on here who's signature line reads something like well-informed knowledge is power (or words to that effect), and I remain confident that my research, while contrary with agency norms, is sound. Come September, I will see if my legal research persuades the agency to buck "norms".
 

RonG

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Statutes.

A person who is ordered to active duty and
is determined to be
unfit to perform duties of his or her office, grade, rank, or rating because of physical disability
may retire under 10 U.S.C. §
1204, rule 1
or
1205, rule 2
or
1201, rule 1
or
1202, rule 2
[All depending on the number or days active duty involved.]

10 U.S.C. § 1204; 1205; 1201; 1203 are the statutory authority for military disability retirement (therefore, entitlement).

Ron
 

Dani2920

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Yes, and I can also say (come September) that I'll be a "retired member of the armed forces", but 5 U.S.C. 2108 would strictly define my interpretation to be incorrect. Instead, I will be a "disabled veteran" as far as Congress is concerned (via statute).

Even government agencies can be in error when interpreting statutes. There is another member on here who's signature line reads something like well-informed knowledge is power (or words to that effect), and I remain confident that my research, while contrary with agency norms, is sound. Come September, I will see if my legal research persuades the agency to buck "norms".
Well good luck to you and your future employer. If it is the Navy JAGC, you could be alright.
 

legalbeagle

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Selected additional information on the subject.
Ref: DoD 7000.14-R Financial Management Regulation Volume 7B, Chapter 1 * March 2018

*010101. Purpose. This chapter provides information for the entitlement to military retirement pay.

*010201. Overview. A. Military retired pay is divided into three general categories: retired pay for Regular service, retired pay for non-Regular (Reserve/Guard) service, and retired pay for physical disability.

*010203. Retired Pay Multiplier. B. A member who retires for disability may choose a multiplier based on years of service or based on the disability percentage awarded by the Service. However, if the member chooses the Service disability percentage, then the percentage is capped at 75 percent.

With regard to ENTITLEMENT to retired pay via a disability retirement:

Table 1-3. Disability Retirement

A person who is ordered to active duty and
is determined to be
unfit to perform duties of his or her office, grade, rank, or rating because of physical disability
may retire under 10 U.S.C. §
1204, rule 1
or
1205, rule 2
or
1201, rule 1
or
1202, rule 2
[All depending on the number or days active duty involved.]

10 U.S.C. § 1204; 1205; 1201; 1203 are the statutory authority for military disability retirement (therefore, entitlement).

How OPM uses this legal status with regard to the 180-day rule seems to vary.

Ron
Ron, for service members with LESS than 20 years who get out are NOT entitled to retired pay. If there is a statute that I am not aware of, please let me know.

Like I said in my original post, if Congress intended for retirees and disabled veterans to be lumped together, then 5 U.S.C. 2108 would not have separated the two. Because the intent of Congress is clear and unambiguous, then a bifurcation must be placed and thus, both categories CANNOT be presumed to share similar statutory paths. So when OPM, DFAS, etc., place restrictions upon "retired member of the armed forces", they cannot cross over to "disabled veteran" unless clear language is in place, either by statute or regulation, to ensure that both categories are encumbered by the restriction.

You mention "entitlement", but a < 20 year veteran is NOT entitled to "retired, retirement, or retainer pay on account of service as a member." Therefore, your posted statutes do not refute my original analysis.

Thus far, I am not aware of any agency policy that also includes "disabled veteran" as combined with "retired member of the armed forces".

My worry is that my agency will choose to ignore statute and instead go with established norms, despite no legal backing.
 

RonG

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I respectfully disagree.

Re: "You mention "entitlement", but a < 20 year veteran is NOT entitled to "retired, retirement, or retainer pay on account of service as a member." Therefore, your posted statutes do not refute my original analysis."

They are entitled, in my opinion, based on the statutes I cited. They too, were passed by Congress.

I have no investment in this matter, just some research on my own. I can be wrong and it would not be the first time. However, I spent 40 professional years researching laws (and regulations) as you have done for a certain number of years. My experience was with the Army finance corps and as an external grants and contracts manager for a large university.

Ron
 

Dani2920

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Ron, for service members with LESS than 20 years who get out are NOT entitled to retired pay. If there is a statute that I am not aware of, please let me know.

Like I said in my original post, if Congress intended for retirees and disabled veterans to be lumped together, then 5 U.S.C. 2108 would not have separated the two. Because the intent of Congress is clear and unambiguous, then a bifurcation must be placed and thus, both categories CANNOT be presumed to share similar statutory paths. So when OPM, DFAS, etc., place restrictions upon "retired member of the armed forces", they cannot cross over to "disabled veteran" unless clear language is in place, either by statute or regulation, to ensure that both categories are encumbered by the restriction.

You mention "entitlement", but a < 20 year veteran is NOT entitled to "retired, retirement, or retainer pay on account of service as a member." Therefore, your posted statutes do not refute my original analysis.

Thus far, I am not aware of any agency policy that also includes "disabled veteran" as combined with "retired member of the armed forces".

My worry is that my agency will choose to ignore statute and instead go with established norms, despite no legal backing.
I'm not quite sure why I continue to respond, as it doesn't seem much will change your position...but like Ron and the others, I disagree with your interpretation.

You point to 5 USC 2108 as backing your position, I find it the opposite. If you are looking at congressional intent, the intent of this section is to define Veteran, Disabled Veteran, and Preference Eligible, for hiring purposes. 5 USC 2108 separates retirees and DISABLED veterans because they are two different things. Not all retirees are disabled veterans and not all disabled veterans are retirees. Retirees are "a member or former member of the armed forces who is entitled, under statute, to retired, retirement, or retainer pay on account of service as a member." A disabled veteran is a whole slew of people, anyone receiving compensation due to disability, etc.. The retiree definition is included at the bottom, only to show that retirees are not typically preference eligible unless they are ALSO disabled veterans (AKA, us.) Nothing in this statute backs your position, if anything, it weakens it.

MOST IMPORTANTLY, keep in mind that your claimed statue states retirees are "a member or former member of the armed forces who is entitled, UNDER STATUTE, to retired...pay." The portion of the code/statute that grants entitlement to retired pay are contained within 10 USC Part II, specifically Chapters 61-71. This section lists all the different ways individuals may be retired. Chapter 61, retirement for disability, specifically 10 USC 1201, states...the Secretary may retire the member, WITH RETIRED PAY computed under section 1401 of this title. 10 USC 1401 is titled COMPUTATION OF RETIRED PAY...not computation of disability pay or computation of retired pay for serving 20 years, etc. It is computation of retired pay...ALL INCLUSIVE. At the bottom of the table, (b), states "If a person would otherwise be entitled to retired pay computed under more than one formula of the table in subsection (a) or of any other provision of law, the person is entitled to be paid under the applicable formula that is most favorable to him." This is clear congressional intent that we are all retirees, eligible under statute to retired pay. 10 USC 1401 is the various means to calculate retired pay. The table lists RETIRED PAY BASED ON ____ STATUE (1201 being the first statute listed.)

So, to sum it up: You are using your interpretation of 5 U.S.C. 2108 as the sole basis for your position. 5 U.S.C. 2108 states the term"retired member of the armed forces” means a member or former member of the armed forces who is entitled, under statute, to retired pay. The chapter of the US Code that deals with retired pay and computations, has disability over 30% squarely listed under entitlement to retired pay. Further, 1401 Computation of Retired Pay, lists the disability statute first. AKA we are retired members of the armed forces as we are entitled UNDER STATUTE to retired pay. If you want to claim bifurcation and clear and unambiguous congressional intent, 10 USC 1401 clearly shows retirement pay due to disability is the same retirement pay as any other, it is just a different means of calculation (no bifurcation!)

If this doesn't change your mind, nothing will.
 
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