Retirement

3.750 Entitlement to concurrent receipt of military retired pay

and disability compensation 3.750-1

3.751 Statutory awards; retired service personnel 3.751-1

3.752 \[Reserved\]

3.753 Public Health Service 3.753-1

3.754 Emergency officers' retirement pay 3.754-1

**§3.750 Entitlement to concurrent receipt of military retired pay and
disability**

> **compensation.**

\(a\) *Definition of military retired pay*. For the purposes of this
part, military retired pay is payment received by a veteran that is
classified as retired pay by the Service Department, including retainer
pay, based on the recipient's service as a member of the Armed Forces or
as a commissioned officer of the Public Health Service, the Coast and
Geodetic Survey, the Environmental Science Services Administration, or
the National Oceanic and Atmospheric Administration.

\(b\) *Payment of both military retired pay and disability compensation
or improved pension*.

\(1\) *Compensation*. Subject to paragraphs (b)(2) and (b)(3) of this
section, a veteran who is entitled to military retired pay and
disability compensation for a service-connected disability rated 50
percent or more, or a combination of service-connected disabilities
rated at 50 percent or more, under the schedule for rating disabilities
(38 CFR part 4, subpart B), or based on a determination of individual
unemployability under 38 CFR 4.16, is entitled to receive both payments
subject to the phase-in period described in paragraph (c) of this
section.

\(2\) *Chapter 61 disability retirees retiring with 20 or more years of
service*. Disability retired pay payable under 10 U.S.C. Chapter 61 to a
veteran with 20 or more years of creditable service may be paid
concurrently with disability compensation to a qualifying veteran
subject to the following:

\(i\) Any waiver required during the phase-in period under paragraph
(c)(1)(ii) of this section; and

\(ii\) if the veteran's disability retired pay exceeds the amount of
retired pay the veteran would have received had the veteran retired
based on length of service, the veteran must waive that excess amount of
disability retired pay in order to receive VA disability compensation.

\(3\) *Chapter 61 disability retirees retiring with less than 20 years
of service*. Veterans who receive disability retired pay under 10 U.S.C.
Chapter 61 with less than 20 years of creditable service are not
eligible for concurrent receipt.

\(4\) *Improved Pension*. A veteran may receive improved pension and
military retired pay at the same time without having to waive military
retired pay. However, in determining entitlement to improved pension, VA
will treat military retired pay in the same manner as countable income
from other sources.

\(c\) *Waiver*.

\(1\) *When a waiver is necessary*.

\(i\) A waiver of military retired pay is necessary in order to receive
disability compensation when a veteran is eligible for both military
retired pay and disability compensation but is not eligible under
paragraphs (b)(1) or (b)(2) of this section to receive both benefits at
the same time.

\(ii\) All veterans who are eligible to receive both military retired
pay and disability compensation at the same time under paragraphs (b)(1)
or (b)(2) of this section, except those receiving compensation for a
disability rated 100 percent, must file a waiver in order to receive the
maximum allowable amount of disability compensation during the phase-in
period. For veterans receiving disability compensation based on a VA
determination of individual unemployability, the phase-in period ends on
December 30, 2009. For all other veterans, the phase-in period ends on
December 31, 2013. After the phase-in period, veterans retired under 10
U.S.C. chapter 61 who are eligible for concurrent receipt must still
file a waiver under the circumstances described in paragraph (b)(2)(ii)
of this section. (Authority: 10 U.S.C. 1414, 38 U.S.C. 5304, 5305)

\(2\) *How to file a waiver of military retired pay*. A veteran may
request a waiver of military retired pay in any written, signed
statement, including a VA form, which reflects a desire to waive all or
some military retired pay. The statement must be submitted to VA or to
the Federal agency that pays the veteran's military retired pay. VA will
treat as a waiver an application for VA compensation filed by a veteran
who is entitled to military retired pay.

\(d\) *Elections and the right to reelect either benefit*.

\(1\) A veteran who has filed a waiver of military retired pay under
this section has elected to receive disability compensation. A veteran
may reelect between benefits covered by this section at any time by
submitting a written, signed statement to VA or to the Federal agency
that pays the veteran's military retired pay.

\(2\) An election filed within 1 year from the date of notification of
Department of Veterans Affairs entitlement will be considered as "timely
filed" for effective date purposes. See §3.401(e)(1). If the veteran is
incompetent, the 1-year period will begin on the date that notification
is sent to the next friend or fiduciary. In initial determinations,
elections may be applied retroactively if the claimant was not advised
of his or her right of election and its effect. (Authority: 38 U.S.C.
5304(a), 5305)

\[29 FR 12260, Aug. 27, 1964, and 36 FR 5341, Mar. 20, 1971, as amended
at 41 FR 53797, Dec. 9, 1976; 46 FR 47543, Sept. 29, 1981; 71 FR 67061,
Nov. 20, 2006\]

**Supplement *Highlights* reference**: 74(2)

**Cross reference:** Concurrent benefits and elections; general. See
§3.700.