Posted on: Monday, January 3, 2005

MILITARY UPDATE

By Tom Philpott

When legislative language misfires, Congress can intend to do one thing and instead does another. That seems to have occurred twice last October with passage of the 2005 National Defense Authorization Act. It likely reshaped benefits, in unintended ways, for two groups of disabled retirees.

One provision, which executive-branch lawyers continue to study, appears to award "accelerated concurrent receipt" to 28,000 military retirees with disability ratings of less than 100 percent but who are rated "IU," or unemployable, by the Department of Veterans Affairs.

A final legal determination is pending. But a knowledgeable defense official said the "statutory language seems to mandate" that these retirees be treated the same as 23,000 other retirees rated "100 percent disabled." As a result, a group twice as big as expected likely will see military retired pay — in the form of Concurrent Retirement and Disability Pay — fully restored as of Jan. 1 rather than phased in over the next nine years.

A second provision of the NDAA adopts a fairer formula for calculating disability retirement for activated National Guard and Reserve troops.

In contrast to the IU matter, however, the initiative to benefit mobilized reservists, at least for now, is written in a way that helps far fewer members than lawmakers hoped. In fact, it leaves behind most National Guard and Reserve members who have been seriously wounded in war.

Here are details on the two provisions:

"High-3" Reservists: National Guard and Reserve troops injured while on active duty, and awarded disability retirement on or after Oct. 28, 2004, will have their pay calculated using a more generous formula.

The problem is linked to the "High-3" retirement formula that applies to any member who first entered service on or after Sept. 8, 1980. Retirees under High-3 see annuities based on a percentage of average basic pay over their highest three earning years, which usually are their last three years of active service.

With the NDAA, Congress stepped in to require that disability retirements be computed for High-3 National Guard or Reserve members as though they had served their last three years on active duty. But the law wasn't written, officials discovered, so it could be applied retroactively to reservists since the war on terrorism began.

"IU" retirees: As reported here a few weeks back, government lawyers were studying whether the NDAA provision to restore full military retirement to 100 percent disabled retirees in January should be interpreted broadly, to apply to retirees who have lower-rated disabilities but are deemed "IU" or unemployable.

The "accelerated" concurrent receipt initiative had originated in the Senate. A staff member there said senators assumed it applied only to retirees with 100 percent disability ratings, if they had 20 or more years or had retired under temporary early retirement authority used during the post-Cold War drawdown.

But again, it seems, legislative intent will be tripped up by the actual language of law, in this case to the delight of 28,000 unemployable retirees.

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