13 July 2012

Military Disability Retirements: A New Perspective

Most of us veterans who retired from the service do so through completion of twenty years service, either Active Duty or Guard/Reserve. Some, however, are retired for reasons of physical disability - injuries or illness which make it impossible for the servicemember to continue in service.

There has been a significant, through very subtle, development regarding military disability retirements. For decades since the establishment of their retirement systems and review boards, the military (particularly the Air Force), assigned disability percentages for a member's illness or disability which made continued service impracticable. Ignored for decades and still ignored for retirement disability calculation are specific injuries situations where disabilities where existed but which did not in themselves render the member unable to continue in service.

But in particular, ignored for decades, was the "catch-all" situation of unemployability. The VA has routinely assigned veterans a rating of IU (for individual unemployability) to address situations where the disability rating schedule failed to address the case of a veteran's illness or injury totaling perhaps 60% per schedule but in effect, leaving the veteran unable to pursue meaningful employment. Then a rating of 100% disabled for reason of IU could be awarded.
The VA applied the provisions of law and regulation to veterans qualified for IU, but military retirement boards very, very rarely did so. And never were the disabilities which themselves were not career-ending disabilities. The result is that the military services generally did not extend the protections of law and regulation in situations where individual unemployability might be called for. The DoD definition of unemployability, taken from DoD 1332.39, reads:
"Total disability will be considered to exist when the member's impairment is sufficient to render it impossible for the average person suffering the same medical condition to engage in substantially gainful civilian occupation." 
In fact, a recent FOIA to Randolph AFB seeking the numbers of unemployability ratings resulted in only a vague statement "there probably were some." Further, a conversation with a PEBLO got a comment that "The Board doesn't like to make unemployability awards." A board's failure to "like" a particular protection due an injured service member seems questionable.

However in April, one of the military's Board of Correction of Military Records relaxed a bit on that issue. In a decision specifically worded to be non-precident setting, the Board accepted their Medical Advisor's recommendation to grant an award of unemployability to a retiree. Many factors came into play, including the member's date of enlistment, date of injury, date of retirement, Chapter 20 (rehab) testing by the VA, etc, to permit the decision...but the important point to take is that the Board did indeed make an award of 100% disability retirement for reason of unemployability!

For too many decades, DoD has denied even considering unemployability awards for disabled military retirees, actually citing the fact that the VA awards them, that the VA can advance a veterans status from one percentage to another over time, and that the systems are similar but separate. Stressed is the fact that DoD considers the "snapshot in time" of the service member at retirement. So...if that snapshot is of an unemployable person, that person should be considered for the maximum retirement percentage of 100%-75% for pay.

That's big. That means individuals with 60% or higher medical retirement disability decisions from the military might want to examine their situation to determine whether an appeal to their service's Board of Correction of Military Records might be in order. The advantage might be an increase to the maximum of 75% of base pay for retirement (75% of base pay being the maximum retirement under most circumstances unless service totals over 30 years). Retirees who also are rated by the VA as 100% for IU might want to pay particular attention!

Good luck...get your rep from the American Legion, DAV, VFW or other service organization to give you a hand on this complicated issue!

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