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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 19177
Experience:  Lawyer and current JAG officer.
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I have served 9 Years in the National Guard, 2 of them

Customer Question

I have served 9 Years in the National Guard, 2 of them Active duty, 1 year in Iraq. While overseas in Iraq, from my job duties of sitting at a desk for 12+ hours a day, I started to have back troubled. Turns out I have degenerative disk disease. VA has
awarded me 60%, 40% for my back, 20% for my leg, and 10% for my other leg. The military medically retired me this year and gave me a military pension of 60% with my retirement. I have been told numerous times that I can't collect both and just want to make
sure. It wasn't like I tripped going to the chow hall, my back got messed up by doing my job of sitting for 12 hours a day and training as well. The one JAG officer was rude and basically said that if you don't get shot at or blown up you can't collect both.
I also have a LOD that was written while I was in Iraq, would this help out all or am I stuck with the military retirement being taking out for the VA disability... It doesn't make sense why I am paying for my own disability.
Submitted: 1 year ago.
Category: Military Law
Expert:  Allen M., Esq. replied 1 year ago.

Unfortunately, the ability to receive both military retirement and VA disability pay at the same time (concurrent payment) is restricted to those with 20 years of qualifying retirement service. Then the idea is that the 20 years locked in the right to retirement pay, so the retirement isn't based on disability at all...but rather, the completed military service. So, the concurrent pay is legally considered appropriate because there is pay being granted for two different reasons (a. Completed military service of 20 years. b. Medical issue effecting civil***** *****fe which is based on military service.)

That right though is not extended to those that are medically retired prior to reaching their full measure of service of at least 20 years. When one is medically retired, it is money for the disability. So, the problem them is that you have two sources of money for that exact same purpose...both paying for disability based on military service. Concurrent pay then is not legally permitted. The only other way then to get concurrent pay is when the medical retirement is combat related.

On the facts you've given, unfortunately it wouldn't appear that you are eligible for the narrow circumstances allowing for concurrent pay because you didn't reach 20 years of service and your injuries are not directly attributable to combat service. In your case, it would be best to continue pressing the VA for increased disability (as your back gets worse) and waive the retirement in favor of the VA pay (which would not be taxable).

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