Attorney-at-Law

SPRING AWAKENING

In Uncategorized on 05/11/2022 at 15:38

No, not the 1906 Frank Wedekind shocker directed by Max Reinhardt, nor yet the Broadway musical centenary thereof; this  is the Genius Baristas’ response to the wake-up call I gave them back on 5/4/22 (see my blogpost “The Stealth Off-The-Bencher,” 5/4/22). Today we have the opinion we’ve all been waiting for, but of course it’s been posted in a format wherefrom I cannot drag-and-drop quotes.

Lewis Arnold Rice, Docket No. 6385-21, filed 5/11/22 is another disabled veteran’s tale. A graduate of West Point (and thus a superior speller), Lewis Arnold (that’s Colonel Lewis Arnold) was recommended for a finding he was disabled for worldwide deployment back in 1989 by the Army Medical Evaluation Board. The MEB bucked Lewis Arnold’s file on to the Army Physical Evaluation Board, but before the PEB  could’ve approved the MEB’s finding (which they never did), Lewis Arnold retired from the Army with twenty-six (count ’em, twenty-six) years’ service. Whereupon Lewis Arnold claimed disability with the VA, which awarded him $1400 per month disability payment.

That payment is not taxable and not an issue.

Lewis Arnold claims his $48K per year service pension isn’t taxable. That is taxable, and that is the issue. Lewis Arnold’s trusty attorney cites three cases where length-of-service pension payments were treated as disability (thus excluded by Section 104), but in each case there was a final determination of physical disability.

Judge Nega: “Here, the MEB report was the only evidence petitioner produced to establish that he would have been entitled to a disability discharge at retirement. However, a MEB proceeding is the initial stage of the Army’s multi-tier evaluation of a service member’s eligibility for a disability discharge. If a MEB concludes that a service member is physically unfit, then the next stage of review occurs in higher-level PEB proceedings. While the MEB report did recommend that petitioner was no longer fit for worldwide deployment, such a recommendation was preliminary and did not entitle petitioner to a disability discharge.” Transcript, at pp. 9-10.

Taishoff has a two syllable word for this procedure (that may well cover much else one encounters in the Army). The first syllable is “chicken.”

Lewis Arnold was on the eve of getting out when he got the MEB report. I suggest that for him, sitting around waiting for a PEB, while pushing paper somewhere, was not a high priority item. The day I got out of the Army, I was sitting next to a man with a Combat Medic Badge and two (count ’em, two) Purple Hearts, urging him to apply for a VA disability rating. He didn’t want to deal with paperwork, he just wanted to go home and go to church again. I know how he felt; I bet the Colonel felt the same way. We were all in Vietnam at the same time.

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