United States Court of Appeals 

for the Federal Circuit ______________________

PRESTON A. MCCORD,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________

2018-2243

______________________

Appeal from the United States Court of Federal Claims 

in No. 1:16-cv-00310-EDK, Judge Elaine Kaplan.

______________________

Decided: December 4, 2019

______________________

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.
2 MCCORD v. UNITED STATES

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-ofpocket 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 
MCCORD v. UNITED STATES 3

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 retirement pay, rather than 

discharged with severance pay.” J.A. 29. The ABCMR

then corrected his record.
4 MCCORD v. UNITED STATES

In March 2018, McCord in his Claims Court action 

challenged the government’s calculation of his entitlement 

to military retirement back pay and the government’s

claimed right to recover the severance pay. He also requested damages for medical expenses that he incurred as 

a result of his not being afforded TRICARE coverage before 

the correction. The Claims Court rejected “McCord’s approach [to calculate back pay] . . . [as] it would provide him 

with a windfall by permitting the very ‘double-dipping’ that 

the statute forbids” and denied his “relief regarding the recoupment of severance pay . . . as not ripe.” J.A. 6, 8. It 

also held that McCord “failed to exhaust the applicable administrative procedures for securing benefits under 

TRICARE” and denied relief. J.A. 9–10.

McCord appeals to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(3). This court conducts “a plenary 

review of the legal conclusions of the [Claims Court] while 

reviewing its factual conclusions for clear error.” Stearns 

Co. v. United States, 396 F.3d 1354, 1357 (Fed. Cir. 2005). 

DISCUSSION

I. Military Retirement Back Pay

McCord first argues that the government improperly 

reduced his military retirement payments by the amount 

of his VA benefits. McCord became eligible for military retirement pay from his discharge date because his disability 

rating was corrected to be at least 30%. See 10 U.S.C. 

§ 1201. The DOD found that he was entitled to military 

retirement pay of $37.60 for May 29–31, 2012 and 

$37,646.00 for June 2012–October 2017.1 However, the 

DOD determined that McCord could not be paid the military retirement pay for the period after June 2012 because 

he received VA benefits that exceeded the eligible military 

 

1 We assume that the claimed back pay period ends 

in October 2017.
MCCORD v. UNITED STATES 5

retirement pay for each month. The Claims Court upheld 

the DOD’s calculation. McCord argues that it was improper for the DOD to reduce his military retirement pay 

by the amount of the VA benefits. We disagree.

Section 5304 of Title 38 provides that a veteran generally cannot be awarded both military retirement pay and 

VA benefits. Specifically, it prescribes a “[p]rohibition 

against duplication of benefits”:

(a)(1) Except . . . to the extent that [military] retirement pay is waived under other provisions of law, 

not more than one award of . . . [VA] compensation, 

. . . regular, or reserve [military] retirement pay, 

. . . shall be made concurrently to any person based 

on such person’s own service . . . .

38 U.S.C. § 5304. See generally Absher v. United States, 

805 F.2d 1025, 1027 (Fed. Cir. 1986) (discussing 38 U.S.C. 

§ 3104 (1982), which is the predecessor to § 5304). This

prohibition is inapplicable if a veteran waives his “[military] retirement pay as is equal in amount to . . . [his VA] 

compensation.”2 38 U.S.C. § 5305. Specifically, § 5305 provides:

[A]ny person who is receiving [military retirement] 

pay pursuant to any provision of law providing retired or retirement pay . . . and who would be eligible to receive . . . [VA] compensation . . . if such 

person were not receiving such retired or retirement pay, shall be entitled to receive such . . . [VA] 

compensation upon the filing . . . of a waiver of so 

much of such person’s [military] retirement pay as 

 

2 Another exception to § 5304(a)(1) is that a veteran 

with a disability rating of at least 50% can receive both 

benefits. 10 U.S.C. § 1414. This exception is not applicable 

here.
6 MCCORD v. UNITED STATES

is equal in amount to such . . . [VA] compensation . . . .

38 U.S.C. § 5305 (emphases added). Thus, § 5304(a)(1) 

bars a veteran from receiving both military retirement pay 

and VA benefits absent a waiver under § 5305.

Here, on September 28, 2011, McCord filed a waiver as 

to military retirement pay by “choosing to receive VA compensation instead of military retire[ment] pay” in a disability evaluation board claim (the “2011 waiver form”). 

J.A. 620. He agreed that if he is “awarded military retire[ment] pay prior to compensation, [the government]

will reduce [his] retired pay by the amount of any [VA] compensation . . . awarded.”3 Id. Because McCord executed 

this waiver, it appears that he cannot receive the claimed 

military retirement back pay for the period June 2012–October 2017 as his military retirement pay during that period is less than the VA benefits. But McCord argues that 

the 2011 waiver form does not constitute a waiver of his

 

3 The 2011 waiver form states that:

Unless you check the box in Item 13 below, you are 

telling us that you are choosing to receive VA compensation instead of military retired pay, if it is determined you are entitled to both benefits. If you 

are awarded military retired pay prior to compensation, we will reduce your retired pay by the 

amount of any compensation that you are awarded. 

VA will notify the Military Retired Pay Center of 

all benefit changes. If you receive both military retired pay and VA compensation, some of the 

amount you get may be recouped by VA, or in the 

case of Voluntary Separation Incentive (VSI), by 

the [DOD].

J.A. 620. McCord did not check the box in item 13 and thus 

chose VA benefits over military retirement pay.
MCCORD v. UNITED STATES 7

military retirement back pay. Even if McCord were correct 

(an issue we do not decide), he still would confront the statutory bar of § 5304(a)(1).

As to that provision, McCord contends that 

§ 5304(a)(1) does not bar his recovery. In his view, the 

word “concurrently” in that section means that it applies 

only if the military retirement pay and VA benefits are paid 

at the same time. He reasons that he is not receiving both 

benefits at the same time because the military retirement

back pay will be paid in the future whereas the VA benefits 

were paid in the past. This argument lacks merit because 

§ 5304(a)(1) refers to awards of benefits made “concurrently” meaning for concurrent periods. 38 U.S.C. 

§ 5304(a)(1). The timing of the payment is irrelevant. 

Not only is the statute clear, but also it would make no 

sense for Congress to make a veteran whose disability record was later corrected better off than another whose record had no error in the first place. Congress cannot have 

intended to give the former a windfall of both military retirement pay and VA benefits just because his record contained a mistake. Such a result would be contrary to the 

very purpose of the Military Pay Act which only entitles a 

plaintiff to recover “money in the form of the pay that the 

plaintiff would have received but for the unlawful [action].”

Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 

2003).

We conclude that McCord is not entitled to receive additional military retirement back pay for the period June 

2012–October 2017. 

II. Severance Pay

McCord argues that the government claims entitlement to recoup his severance pay but that 10 U.S.C. 

§ 1174(h)(1) only allows recoupment from reduction of his 
8 MCCORD v. UNITED STATES

military retirement pay.4 Since he will not receive military 

retirement pay (except in the amount of $37.60), recoupment, in McCord’s view, is improper. But McCord concedes 

that the severance “overpayment issue is not ripe,” Reply 

Br. 1, because a debt has not yet been established by the 

government and he has requested that the government 

waive recoupment and this request has not been yet acted 

on. The Claims Court properly declined to reach the severance pay recoupment issue. 

III. Out-of-Pocket Medical Expenses

Due to the correction of his disability rating, McCord 

became retroactively eligible for retirement benefits including TRICARE coverage. McCord seeks damages in the 

amount of $4,760.97 for medical expenses that he incurred 

prior to his being enrolled in TRICARE. The Claims Court 

held that he could not recover because he “failed to exhaust 

the applicable administrative procedures for securing benefits under TRICARE.” J.A. 9.

The government first argues that the Claims Court has 

no jurisdiction over McCord’s claim. This argument is 

without merit. The Tucker Act provides jurisdiction over a 

claim based on “money-mandating” statutes or regulations.

Martinez v. United States, 333 F.3d 1295, 1302 (Fed. Cir. 

2003). Here, the “Secretary concerned may pay[] . . . a 

claim for . . . pecuniary benefits, . . . if, as a result of cor-

 

4 Section 1174(h)(1) provides that “[a] member who 

has received . . . severance pay . . . and who later qualifies 

for [military retirement] pay . . . shall have deducted from 

each payment of such [military retirement] pay an amount, 

in such schedule of monthly installments as the Secretary 

of Defense shall specify, . . . until the total amount deducted is equal to the total amount of . . . severance 

pay . . . .”
MCCORD v. UNITED STATES 9

recting a record . . . the amount is found to be due the claimant on account of his . . . service.” 10 U.S.C § 1552(c)(1). 

Although § 1552 itself is not a “money-mandating” statute, 

it becomes “money-mandating” if a claimant was improperly denied benefits but became entitled to them under 

other provisions of law. See Martinez, 333 F.3d at 1314–

15. Here, the benefit McCord seeks—TRICARE coverage—

is a pecuniary benefit that McCord was entitled to receive 

as a military retiree under the regulation. See 32 C.F.R. 

§ 199.17 (implementing the TRICARE program and stating that “[r]etirees and their family members” are beneficiaries of this program). This regulation is the source of 

McCord’s entitlement to incurred medical expenses during 

the period of time he should have been receiving TRICARE 

coverage as a military retiree. The Claims Court has jurisdiction over that claim under the Tucker Act. 

The government also contends that the Claims Court 

correctly ruled that McCord was required to first apply for 

an award under the TRICARE system. This ruling was erroneous. McCord’s request is not for a benefit under 

TRICARE procedures but rather for the monetary loss that 

he suffered due to the government’s failure to provide 

TRICARE coverage. The government conceded during oral 

argument that McCord is seeking damages for failure to 

recognize his eligibility for TRICARE coverage. The 

TRICARE reimbursement procedure only covers medical 

claims for services “authorized under the TRICARE Program,” Claims Processing Procedure, TRICARE Operations 

Manual 6010.59-M, Ch. 8, Sec. 1 (revised Oct. 20, 2017), 

https://manuals.health.mil/pages/DisplayManualHtmlFile

/TO15/59/AsOf/TO15/c8s1.html#FM69153, and it thus

does not provide a remedy for damages flowing from improper exclusion from the TRICARE program. Exhaustion 

of TRICARE procedures is not required for McCord’s claim.

The fact that McCord was retroactively given TRICARE 

entitlement does not change this result. 
10 MCCORD v. UNITED STATES

McCord claims damages in the amount of $4,760.97, 

which is the total sum of his out-of-pocket expenses that he 

incurred due to the fact that he was excluded from

TRICARE coverage. The government did not dispute the 

damages amount before the Claims Court or in its briefing

in this appeal. Under the circumstances, we conclude that 

McCord has shown his damages and is entitled to an award 

of $4,760.97.

CONCLUSION

We reverse the Claims Court’s judgment with respect 

to McCord’s claim for out-of-pocket medical expenses, and 

direct entry of an award for $4,760.97. We affirm the 

Claims Court’s judgment in other respects. 

AFFIRMED-IN-PART, REVERSED-IN-PART, AND

REMANDED

COSTS

No costs.