Conscience
and law never go together.
- William Congreve
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TITLE
38--VETERANS' BENEFITS
PART IV--GENERAL ADMINISTRATIVE PROVISIONS
CHAPTER 53--SPECIAL PROVISIONS RELATING TO BENEFITS
Sec.
5305. Waiver of retired pay.
Any
person who is receiving pay pursuant to any provision of law providing retired
or retirement pay to persons in the Armed Forces, or as a commissioned officer
of the National Oceanic and Atmospheric Administration or of the Public Health
Service, and who would be eligible to receive pension or compensation under
the laws administered by the Secretary if such person were not receiving such
retired or retirement pay, shall be entitled to receive such pension or
compensation upon the filing by such person with the department by which such
retired or retirement pay is paid of a waiver of so much of such person's
retired or retirement pay as is equal in amount to such pension or
compensation. To prevent duplication of payments, the department with which
any such waiver is filed shall notify the Secretary of the receipt of such
waiver, the amount waived, and the effective date of the reduction in retired
or retirement pay.
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I
started this BunkerTalk with Section 5305 from Title 38 of the United States
Code, Veteran's Benefits. This discussion needs to be serious so I'll refrain
from my usual attempts at humor and sarcasm. Read the law and understand it,
especially if you are now retired, or plan someday to retire from the Armed
Forces of the United States.
I
often talk with veterans regarding their benefits and entitlements. One day I
answered a call from an Army retiree - a veteran of 27 years. He served our
country from 1940 to 1967 making him a WWII, Korean War, and Viet Nam era
veteran. A conversation with a veteran of three of our nation's wars could
easily have been the highlight of my day instead it turned out to be the low
point of it.
After
all these years, the old soldier applied for service-connected disability
compensation and got a 10 percent disability rating. The rating pays him
$101.00 per month compensation. In my short time with the VA I can tell you,
without much reservation, that this seasoned trooper probably had more things
wrong with him and could likely have claimed them years earlier, but for
whatever reason he never did.
He
called because he had just received an award letter from the VA. The letter
explained to him that he would receive compensation of $101.00 per month,
however, since he was retired from the military, the Defense Finance and
Accounting Services would reduce his Army retirement check by the same amount.
He
asked why his retirement pay was being reduced and I explained to him because
the law requires it. He responded by saying that he earned his retirement pay
- it was his - and asked again, why he had to give it up. I tried once more to
explain to him that it's the law that causes that to happen. He told me that
he didn't think that was a very fair law, wished me a good day and then he
hung up the phone.
If
he had honorable service but didn't retire, this law would not have affected
him. Let me explain. Assume that he served an honorable tour in the service
that didn't end in retirement. Following his service, he went to work for the
federal civil service and retired from that job with a civil service
retirement. The $101.00 per month disability compensation would have no affect
on his civil service retirement pay. Nor, would any other retirement from any
job you can think of except those mentioned in this law.
Other
interesting things happen when this law is applied - and it's always applied.
Veteran's claims often take a while to process. In some cases, it could be a
year or more. It usually depends on the length of time it takes to acquire all
the evidence necessary to decide the claim.
The
date a veteran files his claim establishes his effective date of benefits if
he's given compensation. If it takes a year to finish a claim, a 10 percent
award means a retroactive or back payment of more than one thousand dollars. A
retiree doesn't get a back payment. He gets a letter explaining how many
months compensation were withheld because he receives military retired pay.
His benefit is that he doesn't have to pay taxes on that amount when he files.
If
a person files a claim within one year of the date he leaves the service his
effective date, if granted compensation, is the day following his last day of
service. For example, if he leaves service on the last day of the month his
effective date is the first day of the next month.
Try
this scenario. Assume that a veteran does not file his claim until the tenth
month following his release from active duty. His effective date is still the
day following the day of his release. Assume also, that it takes another ten
months to finish his claim. If the veteran is granted compensation, he has
twenty months of back pay coming. Let's make it more interesting. Assume he
was granted 60 percent service connected disability compensation and has a
spouse. If the veteran left the service before retiring, he would receive a
retroactive payment for $16,280. That's a benefit of $841 per month for a 60
percent disabled veteran with a spouse. The military retiree on the other
hand, gets a letter explaining to him that he is entitled to that monthly rate
effective the same date, but it's withheld because he receives military
retired pay.
This
law also requires that severance and disability separation pay be recouped
before disability benefits are paid - even if a veteran didn't retire.
It's
a rare military retiree that does not have some physical disability, even if a
slight one, after 20 years or more of service. While other veterans are
compensated and rightly so, the retiree only realizes a tax break. The tax
break never equals the amount he or she could receive if this law did not
exist.
I'm
going to finish this BunkerTalk by asking that you use your networks to ensure
that all military personnel, retirees or future retirees are aware of this law
so they can judge for themselves the fairness of it. I'm also going to leave
you with some links that will let you do some research on your own and give
you the opportunity to express your opinion to your elected representatives
who can change it.
Title
38 of the United States Code
Senate Committee on Veteran's
Affairs
Senator Specter - Chairman of the
Senate Committee on Veterans' Affairs
Senator Rockefeller - Ranking
Member of the Senate Committee on Veterans' Affairs
Write Your Representative - use
this link to write your Congressman your opinion about this law.
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When
the way comes to an end, then change - having changed, you pass through.
I. Ching
Bruce
"Doc". Melson