Thursday, June 19, 2008



"...Congress must act to prevent

the Secretary from continuing such blatant disregard

for the law and for the livelihood and welfare of

those that stand up to defend this Country."

NOTE: The Under Secretary of Defense for Personnel and Readiness mentioned in the testimony below, is Dr. David friend of veterans.

For more about Dr. David Chu, use the VA Watchdog search here...

The following is testimony prepared for the House Committee on Veterans' Affairs.

DAV testimony here...

Testimony below:


House Committee on Veterans’ Affairs
Testimony By Kerry Baker
Associate National Legislative Director
Disabled American Veterans

Mr. Chairman and Members of the Committee:

On behalf of the 1.3 million members of the Disabled American Veterans (DAV), I am honored to present this testimony to the Committee to address the implementation of the wounded warrior provisions of the National Defense Authorization Act of 2008 (NDAA). In accordance with our congressional charter, the DAV’s mission is to “advance the interests, and work for the betterment, of all wounded, injured, and disabled American veterans.”

The Department of Defense (DOD) Knowingly Violated the Law and Ignored the Intent of Congress When it Implemented Section 1646 of the NDAA.

The NDAA made several positive changes as part of an enhanced wounded warrior benefits plan—changes that in many respects, were nothing short of groundbreaking. The DAV applauds Congress for achieving these milestones on behalf of all service men and women injured in the line of duty.

One of those changes was improvements in disability severance pay from the military, which previously was based on a maximum of 12 years of military service, and is now based on a maximum of 19 years of military service. This change alone will make a remarkable difference in the lives of career service men and women who received disability separations from service prior to reaching full retirement tenure.

The above change would be pointless if an applicable service member was forced to pay back that severance pay from any future VA compensation, which has always been required until passage of the NDAA. Disability severance pay is based on past achievements in a service member’s career, i.e., rank and number of service years completed. Alternatively, VA disability compensation is paid based on future loss of earnings potential. It is obvious the two are designated for different purposes. As a consequence, a service member should not be forced to return his or her severance pay to the DOD via his or her VA disability compensation.

Congress understood this, and in addition to increasing the amount of severance pay, section 1646 of the NDAA (“enhancement of disability severance pay for members of the armed forces”) (emphasis omitted) eliminated the offset of VA disability compensation by the amount of any severance pay received by certain service members, but not all. The pertinent language in sec. 1646 reads:

No deduction may be made . . . in the case of disability severance pay received by a member for a disability incurred in line of duty in a combat zone or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense.

National Defense Authorization Act of 2008, Pub. L. No. 110-181, § 1646(b), 122 Stat 3 (codified at 10 U.S.C. § 1212).

A veteran must satisfy one of two criteria in order to be exempt from the offset of disability compensation. The first criterion—“in line of duty in a combat zone”—is self-explanatory and not in dispute. The latter criterion requires a deeper understanding of the term “combat-related.”

The logical explanation is that “combat-related” disabilities are incurred as a result of “combat-related” operations. The term “combat-related disability” is defined by the NDAA in, inter alia, section 1632 as “having the meaning given that term in 10 U.S.C.A. § 1413a” (“Combat-related special compensation”). sec. 1632. Section 1413a defines the phrase as follows:

Combat-related disability.--In this section, the term “combat-related disability” means a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that--

(1) is attributable to an injury for which the member was awarded the Purple Heart; or

(2) was incurred (as determined under criteria prescribed by the Secretary of Defense)--

(A) as a direct result of armed conflict;

(B) while engaged in hazardous service;

(C) in the performance of duty under conditions simulating war; or

(D) through an instrumentality of war.

10 U.S.C.A. 1413a(e) (West 2002 & Supp 2007).

The Department of Defense (DOD) has defined the foregoing terms in DOD Instruction (DODI) 1332.38, as follows:

E3.P5.2.2. Combat-related. This standard covers those injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict. A physical disability shall be considered combat-related if it makes the member unfit or contributes to unfitness and was incurred under any of the circumstances listed in paragraphs E3.P5.2.2.1. through E3.P5.2.2.4., below.

E3.P5.2.2.1. As a direct result of armed conflict. The criteria are the same as in paragraph E3.P5.1.2. [Paragraph E3.P5.1.2 defines armed conflict as follows:]

E3.P5.1.2. Armed conflict. [] The physical disability is a disease or injury incurred in the line of duty as a direct result of armed conflict. The fact that a member may have incurred a disability during a period of war or in an area of armed conflict, or while participating in combat operations is not sufficient to support this finding. There must be a definite causal relationship between the armed conflict and the resulting unfitting disability.

E3.P5.1.2.1. Armed conflict includes a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerrilla action, riot, or any other action in which Service members are engaged with a hostile or belligerent nation, faction, force, or terrorists.

E3.P5.1.2.2. Armed conflict may also include such situations as incidents involving a member while interned as a prisoner of war or while detained against his or her will in custody of a hostile or belligerent force or while escaping or attempting to escape from such confinement, prisoner of war, or detained status.

E3.P5.2.2.2. While engaged in hazardous service. Such service includes, but is not limited to, aerial flight duty, parachute duty, demolition duty, experimental stress duty, and diving duty.

E3.P5.2.2.3. Under conditions simulating war. In general, this covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; rappelling, and negotiation of combat confidence and obstacle courses. It does not include physical training activities, such as calisthenics and jogging or formation running and supervised sports.

E3.P5.2.2.4. Caused by an instrumentality of war. Incurrence during a period of war is not required. A favorable determination is made if the disability was incurred during any period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving a military combat vehicle, injury, or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material. However, there must be a direct causal relationship between the instrumentality of war and the disability. For example, an injury resulting from a Service member falling on the deck of a ship while participating in a sports activity would not normally be considered an injury caused by an instrumentality of war (the ship) since the sports activity and not the ship caused the fall. The exception occurs if the operation of the ship caused the fall.

Based on all of the above, it is clear that when a veteran receives a medical discharge based on a disability resulting from any of the above circumstances then such disability constitutes a “combat-related disability” in accordance with section 1413a of title 10, United States Code, and DOD instructions. (See also 26 U.S.C. § 104). Therefore, under the plain language of section 1646 of the NDAA and title 10, United States Code, such a veteran is not subject to an offset of VA disability compensation by the amount of any military severance pay.

However, the Under Secretary of Defense for Personnel and Readiness, (“Secretary”), has issued a “directive-type memorandum” dated March 13, 2008, implementing, inter alia, the foregoing provisions of the NDAA. In that memorandum, the Secretary directed that determinations of whether a service member’s disability was “incurred during performance of duty in combat-related operations” is to be made consistent only with the criteria set forth in DODI 1332.38 paragraph E3.P5.1.2., which defines “armed conflict.”

The effect of the Memorandum is to impose an express limitation on NDAA § 1646. Under the Memorandum, the definition of “combat-related operations” excludes hazardous service, duty under conditions simulating war, or disabilities incurred through an instrumentality of war unless the service member was engaged in armed conflict. The Memorandum defines “combat-related operations” even more narrowly than “in a combat zone.” The interpretation renders the alternative basis upon which Congress intended that a disabled former member should be exempt from the offset of VA disability compensation under the NDAA, “or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense,” superfluous. This action has intentionally read “hazardous service,” “conditions simulating war,” and “instrumentality of war”completely out of the law.

In doing so, the Secretary has narrowed the scope of the statute contrary to the intent of Congress, ignored the plain language of the NDAA and associated statutes, and otherwise violated the law. The Secretary’s action has rendered it far more difficult for veterans to benefit from this provision of the NDAA than as otherwise intended. It is unlawful to read such a limitation into a statute, thereby narrowing its scope and construing it against veterans. See Brown v. Gardner,513 U.S. 115, 117-18 (1994); Miller v. United States, 294 U.S. 435, 439-40 (1935) (regulation or procedural rule that is inconsistent with the authorizing statute constitutes impermissible legislation). Congress must not let the Secretary’s action stand.

Essentially, the Secretary has drawn a distinction between “combat-related operations” and “combat-related disability.” Such distinction lies not with the words “operation” and “disability,” but rather with the established and well-defined meaning of “combat-related.” We do not view this as an oversight—we view this as an intentional effort to conserve monetary resources at the expense of disabled veterans.

Countless thousands of veterans will be detrimentally affected by this unforgivable situation. Congress must also understand that once this injustice is perpetrated, reconciliation will be nearly impossible. There is currently no procedure in place for unsuspecting service members that have been and will be harmed by this unlawful and uncaring act that could rectify the injustice and correct their records.

The ultimate result of this interpretation of NDAA § 1646 is that thousands of service members who Congress intended to exempt from offset of their VA disability compensation will be denied that protection. Those who become disabled while performing hazardous service or training for combat will have their VA disability compensation reduced contrary to the intent of Congress.

The foregoing action by the Secretary forces one to question his true resolve to care for those he sends into battle, or orders to train for battle. This same Secretary has stood before this Committee and declared that no unlawful decision that may have deprived service members injured in the line of duty was ever made based on an intention to save monetary resources. If that is the case in this circumstance, then the DAV must ask one simple question. Why? We can think of no other conceivable reason for the Secretary to circumvent the law as he has done here. The offset discussed herein is governed by title 10, United States Code , not title 38, meaning it is a DOD offset, not a VA offset. To answer the question of “why,” Congress need only determine in whose budget the disability compensation is deposited once offset by VA. We believe the answer to that question is the DOD budget.

In light of the above, Congress must act to prevent the Secretary from continuing such blatant disregard for the law and for the livelihood and welfare of those that stand up to defend this Country.

Mr. Chairman, this concludes my testimony on behalf of DAV. We hope you will consider our recommendations.


posted by Larry Scott
Founder and Editor
VA Watchdog dot Org


DR Chu has been attacking retired and disabled veterans since he has been in the Rumsfeld Pentagon, he has made statementts to the effect that disabled veterans and retirees will prevent the Pentagon from fielding an Army in the future due to the financial constraints they put on DOD, in other words we are leeches on DOD and don't deserve our compensation according to DR Chu. I will be happy to see this man leave the Pentagon in Jan 2009, he is a political appointee CYA don't want to be ya

I wonder how he even sleeps at night?

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