Citation Nr: 18151910 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 09-30 792 DATE: November 20, 2018 REMANDED Whether withholding two months of VA compensation benefits in the amount of $348.00 per month was correct for the purpose of recouping military drill pay for 72 days in fiscal year 2007 is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) in the U.S. Army National Guard from November 2002 to March 2003 and on active duty in the U.S. Army from January 2005 to July 2006. He also had additional service in the U.S. Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 decision issued by the Department of Veterans Affairs (VA). In the July 2009 substantive appeal (via VA Form 9), the Veteran requested a hearing before a Veterans Law Judge (VLJ). In January 2011, the Veteran withdrew the hearing request. 38 C.F.R. § 20.704(e). The appeal was remanded by the Board in January 2014.   1. Whether withholding two months of VA compensation benefits in the amount of $348.00 per month was correct for the purpose of recouping military drill pay for 72 days in fiscal year 2007 is remanded. The Veteran effectively challenges the calculation of the overpayment created by concurrent receipt of military drill pay and VA compensation benefits. He asserts that he drilled less than 72 days in fiscal year 2007; therefore, the amount of the debt and resultant recoupment should be less. Remand is required for further development. In a January 2014 decision, the Board remanded the appeal to verify his drill dates and pay in fiscal year 2007 and to conduct a financial audit of his account. To that end, the agency of original jurisdiction (AOJ) requested annual drill and training participation for fiscal year 2007 from his National Guard unit in Pennsylvania. The National Guard unit failed to respond to the requests, so a representative of the AOJ called them via telephone. The representative was informed that records dating back to fiscal year 2007 would be destroyed as such records are only kept for approximately three years. The AOJ also requested from the Defense Accounting and Finance Services (DFAS) in Cleveland, Ohio, the Veteran’s leave and earning statements from fiscal year 2007. After two requests, a negative response was received indicating that a payee with a matching social security number (SSN) could not be found. Parenthetically, the Board checked the Veteran’s identifying information, to include his SSN, provided to DFAS for the request and it did match the correct information on file; thus, while it is unclear why they could not locate his prior leave and earnings statements, further requests for such information would be futile. The Veteran was provided notice of the unavailability of the National Guard records and the DFAS records in September 2016. The AOJ also requested the Veteran’s entire personnel file, which was received. The file contained an NGB Form 22A, Army National Guard Current Annual Statement. The form summarized the Veteran’s points earned towards retirement, breaking them down between ACDUTRA and inactive duty training (IDT). The retirement points may be used as a proxy to determine the number of drill and training days in a fiscal year. See Earning Retirement Points, https://www.hrc.army.mil/content/Earning%20Retirement%20Points (last visited Nov. 14, 2018); Army Reserve Retirement Points Information Guide, https://soldierforlife.army.mil/sites/all/themes/sfl_yellow/docs/Army_Reserve_Retirement_Point_Information_Guide_08_Aug_2017.pdf (last visited Nov. 14, 2018). According to the NGB Form 22A, the Veteran had IDT drill on 25 separate days in in fiscal year 2007; these generally fell on weekends. On two of the dates, the Veteran only drilled in the afternoon. On the other 23 dates, he drilled both morning and afternoon. He earned one retirement point, and was compensated for a full day, for each four-hour drill period. Thus, for example, on a weekend where he drilled both Saturday and Sunday in the morning and afternoon he would have earned four retirement points and been paid for four days. Accordingly, his IDT retirement points indicate he drilled 48 days in fiscal year 2007. The NGB Form 22A also shows he had 20 retirement points from ACDUTRA. These points are calculated on a one-to-one basis with actual days of training and pay therefore. In sum, the Veteran drilled 48 days IDT and 20 days ACDUTRA, for a total of 68 days in fiscal year 2007. The Board notes the NGB Form 22A also showed 15 membership (MEM) points during fiscal year 2007. While generally grouped with IDT for the purpose of determining retirement points, they do not actually represent drill or training days for which the Veteran would have been paid; thus, they were not used in the above calculation. Given the forgoing, the Board finds that official records verify the Veteran drilled only 68 days in fiscal year 2007. This is less than the 72 drill days originally reported by the Defense Manpower Data Center (DMDC) in April 2008. Both the DMDC information and the NGB Form 22A were contemporaneous federal records and there is nothing to warrant ascribing one more weight than the other; thus, doubt was resolved in the Veteran’s favor in determining he drilled 68 days. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. On remand, the AOJ should recalculate the Veteran’s debt using 68 drill days instead of 72. For the sake of clarity, the AOJ is also asked to clearly identify, in narrative form, the total debt resulting from concurrent payment of military drill pay and VA compensation benefits, how that debt was satisfied by withholding of VA compensation benefits, and any adjustments to the forgoing, or reimbursements issued, given the Board findings regarding drill days. The matter is REMANDED for the following actions: 1. Recalculate the Veteran’s debt using 68 drill days for fiscal year 2007 instead of the 72 drill days used originally. 2. In narrative form, clearly identify the total amount of debt resulting from concurrent payment of military drill pay and VA benefits, how that debt was satisfied by withholding of VA compensation benefits, and any adjustments to the forgoing, or reimbursements issued, given the Board findings regarding drill days. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel