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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 20731
Experience:  Lawyer and current JAG officer.
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I am 240% disabled, service connected, purposes and

Customer Question

I am 240% disabled, service connected, for VA purposes and receiving a VA pension. I was a 06 in the Army Medical Corps. In 1988 I developed quadriparesis with brief intermittent episodes of quadriplegia from a severe neck injury while training in Germany. 5 cervical lamina were removed. This operation helped, but quadriparesis remained clinically and by muscle testing. The Army initiated a disability discharge. Gulf war I started and I was informed that I was needed there. During that war I received a commendation metal. Next, I was sent to Fitzsimons Medical Center from there I was sent to Fort Sam Houston where I slipped and fractured a hip. It did not heal so the hip was replaced by a prosthesis. When my enlistment was up in 1994. The commanding general told me that I was completely disabled, but I was denied a disability discharge. Do I have a chance to get a disability pension.
Submitted: 2 years ago.
Category: Military Law
Expert:  Allen M., Esq. replied 2 years ago.

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

You can certainly try, but you have a few issues to contend with here. First, you have known that you didn't get a disability discharge for many years now. The Board that can make this change, the military records corrections board, applies a "3 year rule" to their reviews. Technically, they could dismiss your request based on your having known about this issue longer than 3 years. They frequently waive this rule in the interest of justice, but that's hit or miss and something you have to prepared to deal with here.

Second, even if you win the disability discharge, chances are that all of it would have to waived anyway to get your VA disability. Certain types of military retirement and disability payments can be received concurrently. For instance, a regular 20 year retirement can be received simultaneously with VA disability (if the disability rating his higher than 50%). However, you would not have a regular retirement. Your retirement would be a disability retirement and only those people who are receiving retirement for a reason other than solely based on disability can get concurrent payment of disability and retirement.

The point is that you might end up going through the through of filing the DD Form 149, spend a year fighting that issue, win and yet still end up no better off than your current financial situation.

If you have any further questions, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a top-three rating so that I receive credit for working with you today. Also, feel free to request me in the future, if you have questions concerning a different matter.

Customer: replied 2 years ago.
I traveled to Washington from Denver twice to the appear before the disability board who informed me that it was useless for a physician or a general to try to get a disability pension as long as I could make a phone call. In spite, of the fact I had been informed twice that I was completely disabled by military authorities. Later, I learned that after 1989 the so called General Curtis LeMay law was enacted. I doubt that that law is entirely legal, and I have been advised that it was likely to be rescinded. I do not know how to discover whether it has been rescinded.
Expert:  Allen M., Esq. replied 2 years ago.

I don't see that that law, even if it were still in place, would have anything to do with the question here.

The point still stands. Obtaining a disability retirement is a legally pointless exercise if you have to end up waiving it to receive the VA disability which you have referred to here several times. You aren't allowed to receive both a disability retirement paycheck and a VA disability retirement paycheck at the same time. One cancels out the other.

Expert:  Allen M., Esq. replied 2 years ago.

Hello, I wanted to check in and make sure that there was not any additional information that you required. If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.