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P. Simmons, Military Lawyer
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Military Back Pay Questions

Military back pay can occur in a number of ways for different reasons. Usually, back pay is in order due to a payroll error or a certificate that wasn't filed properly. Regardless of how it happens, the goal is to be repaid. However, there are times when you may owe the military. It's times like this that people begin to ask questions. The Military lawyers on JustAnswer cover a wide range of military back pay questions and can answer any back pay questions that you may have. Take a look at five of the top military back pay questions answered by Experts.

Can a civilian court judge over rule on a federal law and force someone to repay retirement pay if the person has a VA waiver?

Under the supremacy clause of the US Constitution, federal law generally controls over State law. The supremacy clause, Article VI, Clause 2, states:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

It would probably be a good idea to speak with a local attorney. More than likely, the attorney will want to file for a declaratory judgment in federal district court.

Can a person sue the military for willful due process and back pay torts?

The feres doctrine will prohibit you from suing the military. In the doctrine, it basically says that any active duty member of the military cannot file suit against the military for injuries or neglect that is received. You can learn more about the Feres doctrine and how it works, here: http://en.wikipedia.org/wiki/Feres_v._United_States

You can try to sue the military, but the government will stop it based on this doctrine. Your best option right now would be to call your state senator or Congressman. You will be able to explain your situation and someone from this office will then investigate the situation and determine what took place. The back pay that is owed to you would be more of a contractual issue instead of a tort. You may want to speak with an attorney about your options for the back pay.

Is back pay automatic when you are rated 100 % disabled by the Veterans Administration?

This will have to be determined by the VA. Usually, the VA will perform an assessment of your injury and determine whether or not you should have been listed as 100% disabled when you received the injury instead of a lesser percentage. If the VA assesses your injury, and finds that you are 100% disabled from the original injury or due to progression of that injury or secondary illness resulting from the original, you should start receiving 100% disability from the date of the assessment. When you contact the VA, do it by letter. If you write a letter, the VA will respond to your letter, giving your record of the written request.

Is there a way to reduce the amount of VSI repayment or waive the payment if a person is eligible for retirement?

You can write a letter to DFAS and request that your VSI repayment be forgiven or waived. However, if you chose to take the VSI, you basically accepted an early out from the military, for whatever reason. You were compensated with the intention that you would not be seeking a retirement pension. If you receive a retirement pension, by rights, you should be expected to return the VSI payment. Generally, the government will want the VSI payment when your retirement comes effective. You can ask the government to allow payments to return the VSI, instead of the entire amount being taken out.

If a person was disabled in basic training, are they eligible for back pay?

It is possible that you are due back pay if you were injured and have been drawing payments from the military. If you have been dealing with an injury that is the reason for your disability and occurred during your service, it is likely that you will be eligible for back pay. You can file a claim with the board of corrections for military records. However, you may want the assistance of an attorney who is familiar with military law.

Military back pay can be a good thing or a nightmare, it all depends on whether you are owed or if you owe. If the military owes you back pay, you are sure to receive it. However, if you owe the military back pay, you are sure to pay it back. If you have questions about military back pay, you can ask an Experts to evaluate your case details and provide answers that can help you take the right decisions.

Ask a Military Lawyer

P. Simmons
P. Simmons, Military Lawyer
Category: General
Satisfied Customers: 11944
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
11181181
Type Your Military Law Question Here...
characters left:
Military Lawyers are Online Now

How JustAnswer Works:

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Military Lawyers are online & ready to help you now

P. Simmons
Military Lawyer
Satisfied Customers: 11441
Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
Allen M., Esq.
Lawyer
Satisfied Customers: 4035
Lawyer and current JAG officer.
Marsha411JD
Lawyer
Satisfied Customers: 1149
Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG

Recent Back Pay Questions

  • Hello, I was severely injured during active duty training after

    Hello, I was severely injured during active duty training after 5 years 3 months in the Army National Guard and am now receiving 60% percent disability for the injuries, but am almost done with another claim after major neck surgery to be put at 100%. After the injuries (dislocated shoulder, herniated discs in neck)I was shipped home a left for dead basically lol. I received an honorable discharge notice in the mail without my signature or approval even though I had signed for 4 additional years when entering the officer candidate program where I was injured. Now, 14 years later, I have recently endured 2 major surgeries and am have realized that the Army basically robbed me of a medical discharge, which has limited my benefits (VA home loan , back pay). Is it possible to petition to change an honorable discharge to a medical discharge?
  • Husband passed away from service connection IHD. Was very ill

    Husband passed away from service connection IHD. Was very ill for alot of years with so many different problems filed for so many things and was denied but i reviewed his papers and seen he had filed solely for being exposed to Agent Orange back in 1981 and was denied does that mean any type of retro payments solely on just agent orange or just IHD from 2010.Served 4 tours in Vietnam and was wounded 4 times and spend his life as a career solider retiring in 1996.
  • How can I find out if my former, retired military spouse has

    How can I find out if my former, retired military spouse has paid up COURT-ORDERED SURVIVOR BENEFIT PLAN (SBP) , or if not paid up, when will it be paid up. I have no idea of his whereabouts or address (possibly in FL). I know the rule 70 yrs/360 months; He is 77.
    In sum, all I need to know if SBP is paid up, or when will it be paid up. Thank you in advance.
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