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McCord v. United States

United States Court of Appeals, Federal Circuit

December 4, 2019

PRESTON A. MCCORD, Plaintiff-Appellant
v.
UNITED STATES, Defendant-Appellee

          Appeal from the United States Court of Federal Claims in No. 1:16-cv-00310-EDK, Judge Elaine Kaplan.

          Jason Manne, Pitt Law Veterans Practicum, Pittsburgh, PA, argued for plaintiff-appellant.

          Steven 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 Kirschman, Jr.

          Before Newman, Dyk, and Reyna, Circuit Judges.

          DYK, CIRCUIT JUDGE.

         Preston 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.

         Background

         I

         This 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.

         There 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 below).

         II

         McCord 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.

         On May 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.

         After 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 ...


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