Disabled American Veterans Testify that DoD Violates New Disability Severance Payment Law

Army Times

June 18, 2008 – At the end of a boisterous House Veterans Affairs Committee hearing in which lawmakers lambasted Veterans Affairs Department and Pentagon officials for not meeting various deadlines for improving care for wounded combat troops, Disabled American Veterans dropped a quiet bombshell.

The Pentagon “knowingly violated the law and ignored the intent of Congress” in implementing a provision of the 2008 Defense Authorization Act that lawmakers designed to enhance disability severance pay for wounded and injured service members, wrote Kerry Baker, associate national legislative director for DAV.

Baker argued that Congress created Section 1646 of the 2008 Defense Authorization Act with the intent that service members injured in combat, in a combat zone, or performing tasks related to combat — such as training — would not have to pay back any disability retirement severance pay they receive from the Defense Department before becoming eligible for VA disability compensation, as has been the case under long-standing policy.

But Baker said David S.C. Chu, undersecretary of defense for personnel and readiness, sent out a “directive-type memorandum” March 13 instructing that only those injured in a combat zone in the line of duty or as a direct result of armed conflict do not have to pay back their severance money.

“This action has intentionally read ‘hazardous service,’ ‘conditions simulating war,’ and ‘instrumentality of war’ completely out of the law,” Baker wrote.

Chu’s action, he wrote, “forces one to question his true resolve to care for those he sends into battle, or orders to train for battle.”

Baker said he believes the decision was purely monetary.

“We can think of no other conceivable reason … to circumvent the law as he has done here,” Baker wrote. “To answer the question of ‘why,’ Congress need only determine in whose budget the disability compensation is deposited once offset by VA. We believe the answer to that question is the [Defense Department] budget.”

Defense Department spokeswoman Eileen Lainez said that was not Chu’s intent.

“Rest assured that saving money was not the driver in the implementation,” she said in an e-mail. “The statutory intent of [the law] clearly and appropriately focuses the ‘enhanced disability severance’ to those service members where the unfitting condition is a result of direct participation and performance of duty in the war effort.”

But Baker said the memo intentionally leaves out people clearly included in both the law’s definition of “combat-related disability” and the Defense Department’s own definition of “combat-related,” and that Congress had made clear its intent that anyone with a combat-related disability should be included.

The memo is important, he said, because a service member who breaks his back in a helicopter accident at Fort Bragg, N.C., while training to deploy to Iraq still must pay back his severance before qualifying for VA disability compensation.

“It can take 20 years” to pay back the severance, Baker said. “We do not view this as an oversight. We view this as an intentional effort to conserve monetary resources at the expense of disabled veterans.”

The 2008 Defense Authorization Act states: “No deduction may be made under paragraph (1) in the case of disability severance pay received by a member for a disability incurred in line of duty in a combat zone or incurred during performance of duty in combat-related operations as designated by the secretary of defense.”

Baker said it is the second part of that sentence — “incurred during performance of duty in combat-related operations” — that has been misconstrued.

According to the 2008 Defense Authorization Act, a “combat-related disability” occurs “as a direct result of armed conflict, while engaged in hazardous service, in the performance of duty under conditions simulating war, or through an instrumentality of war.”

The Defense Department has defined “combat-related” as being “attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict.”

That includes hazardous service, such as flight duty, parachute duty, demolition duty, experimental stress duty and diving duty. An instrumentality of war is a weapon, a combat vehicle, or a sickness caused by fumes, gases or explosion of military ordnance.

But Chu’s memo states that “incurred during performance of duty in combat-related operations” will be defined by paragraph E3.P5.1.2 of Defense Department Instruction 1332.28 — “armed conflict.”

Chu’s narrower definition includes injuries “as a direct result of armed conflict,” Baker wrote, or “in the line of duty in a combat zone,” leading to questions of whether someone playing basketball in the Green Zone would qualify. The Defense Department had not answered that question.

Baker, who submitted written testimony but did not appear before the committee for questioning, said the memo has not affected many veterans yet, but it has the potential to affect “tens of thousands.”

It applies only to service members medically retired after Jan. 28, 2008, with disability ratings of less than 30 percent from the Defense Department.

Baker said the net result is that troops injured during training for combat — situations that Congress meant to cover with the recent change in law — will not be covered, and troops injured in those situations will still have to repay their severance money before they can get VA disability payments.

Lainez said Congress left it up to Pentagon officials to decide the definition of “combat-related operations.

“Clearly the statutory intent is to provide wounded warriors enhanced disability compensation,” she wrote. “Saving money was not a policy development factor … rather, [it was] ensuring proper compensation for those service members who are wounded, ill or injured as a result of armed conflict in the combat zone.”

Baker disagreed, urging Congress to revisit the issue to prevent defense officials “from continuing such blatant disregard for the law and for the livelihood and welfare of those who stand up to defend the country.”

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