PRESTON A. MCCORD, Plaintiff-Appellant
UNITED STATES, Defendant-Appellee
from the United States Court of Federal Claims in No.
1:16-cv-00310-EDK, Judge Elaine Kaplan.
Manne, Pitt Law Veterans Practicum, Pittsburgh, PA, argued
John Gillingham, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for defendant-appellee. Also represented by Mikki
Cottet, Joseph H. Hunt, Deborah Ann Bynum, Robert Edward
Newman, Dyk, and Reyna, Circuit Judges.
A. McCord ("McCord") appeals from a decision of the
Court of Federal Claims ("Claims Court"), which
held that (1) the government properly calculated his
entitlement to military retirement back pay; (2) the issue of
government recoupment of his severance pay was not ripe; and
(3) he failed to exhaust administrative remedies necessary to
secure an award of out-of-pocket medical expenses. We affirm
the Claims Court's judgment except as to out-of-pocket
medical expenses. On that issue, we reverse and remand for
entry of judgment awarding the claimed costs.
case involves the interplay between two statutes providing
disability benefits for retired military personnel. Section
1201 of Title 10 provides that military personnel who become
disabled in service with at least 20 years of service or at
least a 30% disability rating are entitled to receive
military retirement pay from the Department of Defense
("DOD") (hereinafter "military retirement
pay"). Under Section 1110 of Title 38, veterans are also
entitled to receive veterans benefits if they can establish
the existence of a service-connected disability (hereinafter
"VA benefits"). But, as discussed below, Congress
has provided that, in general, veterans cannot simultaneously
receive military retirement pay and VA benefits.
is also a statutory anomaly. Upon separation from service, a
disabled veteran may be entitled to receive severance pay if
he served less than 20 years and generally has less than a
30% disability rating or a disability that was not incurred
in time of war or national emergency. 10 U.S.C. § 1203.
If the veteran receives military retirement pay, he is not
entitled to severance, and the severance pay must be recouped
from the military retirement pay unless the government waives
its right to recoupment, see 10 U.S.C. § 2774.
On the other hand, a veteran who receives VA benefits can
retain his severance pay if the "disability [was]
incurred in line of duty in a combat zone or incurred during
performance of [a designated] duty in combat-related
operations." 10 U.S.C. § 1212(d)(2). Thus, a
veteran receiving VA benefits may face a disadvantage if he
also secures an award of military retirement pay because he
would not be entitled to severance pay. However, one
advantage of securing eligibility for military retirement pay
under such circumstances is TRICARE coverage (discussed
injured his back while he served in the United States Army.
He was referred to a disability evaluation program conducted
jointly by the DOD and Department of Veterans Affairs
("VA"). The VA proposed a 20% rating, which was
accepted by the Army's Physical Evaluation Board.
28, 2012, McCord was discharged with a 20% disability rating.
Because his rating was below 30% and he served for less than
20 years, McCord received severance pay instead of ongoing
military retirement pay. Also, starting June 2012, McCord
received monthly payments for VA benefits.
his discharge, McCord applied to the Army Board for
Correction of Military Records ("ABCMR") to correct
his record to have at least a 30% disability rating. The
ABCMR denied his application, and McCord sought review with
the Claims Court. The Claims Court reversed and directed the
ABCMR to correct his record to reflect "a combined
disability rating of thirty percent . . . and, . . . that
[he] was retired with medical ...