Citation Nr: 19155239 Decision Date: 07/17/19 Archive Date: 07/17/19 DOCKET NO. 18-00 495 DATE: July 17, 2019 ORDER The withholding of Department of Veterans Affairs (VA) disability compensation benefit due to receipt of military drill pay for 72 drill days in fiscal year (FY) 2009 and 80 drill days in FY 2011 was proper and the appeal is denied. FINDING OF FACT The Veteran was in receipt of disability compensation benefits when he received drill pay for the equivalent of 72 drill days in FY 2009 and 80 drill days in FY 2011. CONCLUSION OF LAW The withholding of VA compensation benefits was properly created. 38 U.S.C. § 5304; 38 C.F.R. §§ 3.654, 3.700. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served a period of uncharacterized active duty training from June 1992 to November 1992 and honorable periods of active service from March 2003 to March 2004 and December 2007 to December 2008, to include service in Afghanistan and Southwest Asia. The withholding of the Veteran’s disability compensation benefits is due to concurrent receipt of disability compensation benefits and active service pay for the equivalent of 72 drill days in FY 2009 and 80 drill days in FY 2011. See 38 C.F.R. §§ 3.654(a), 3.700 (explaining that 38 U.S.C. § 5304(c) prohibits the receipt of VA disability compensation benefits for any period for which the person receives active service pay, which includes drill and active duty for training payments made to members of the National Guard.). The Board finds the evidence of record supports that the creation of the overpayment debt was proper. Here, VA was notified by the Defense Manpower Data Center (DMDC) that the Veteran completed the equivalent of 150 days of active service drill for pay purposes in FY 2009 and the equivalent of 80 days of active service drill for pay purposes in FY 2011. A November 2015 notification letter advised the Veteran of a proposal to adjust his compensation benefits beginning in February 2016 to recover benefits paid out while the Veteran performed 72 drill days for FY 2009 and in April 2016 due to 80 drill days for FY 2011; the notice explained that 78 of the noted drill days for FY 2009 were subtracted from the total withholding because they were active duty days. A VA 21-8951, notice of waiver of VA compensation or pension to receive military pay and allowances, was enclosed that indicated he could elect to keep the training pay received by his military service department but must waive entitlement to VA benefits for an equal number of days; the enclosure provided an option to contest the number of training days shown on the form. The Veteran did not respond. In August 2016, the Veteran was notified that his disability compensation benefits were adjusted to include withholdings for concurrent receipt of drill pay in FY 2009 and 2011 from August 2016 to January 2017. The Veteran does not dispute that he received military pay for drill training in FY 2009 and 2011. Rather, he generally contested the accuracy of the adjustment due to the delay and indicated that he had not served in the National Guard since 2011. The Board finds the evidence of record supports a finding that the Veteran trained for 72 drill days during FY 2009 and 80 drill days during FY 2011. The Agency of Original Jurisdiction (AOJ) explained that 78 days were subtracted from the number provided by the DMDC (150 days) for FY 2009 due to the Veteran’s active duty service from October 1, 2008, to December 17, 2008, for a total withholding for 72 days of drill pay for FY 2009 and 80 days of drill pay for FY 2011. There is no other evidence of record contrary to the information received by the service department. As such, the Board must conclude that he completed 72 drill days in FY 2009 and 80 drill days in FY 2011 for military pay purposes. The Board acknowledges the Veteran’s assertions relating to the delayed adjustment of his compensation benefits and that the withholding caused financial stress; however, it is bound by the laws and regulations prohibiting concurrent receipt of active service drill pay and VA disability compensation. 38 U.S.C. § 5304(c); 38 C.F.R. §§ 3.654, 3.700. As there simply is no provision of law under which the Board may grant the relief sought by the Veteran in this appeal, the claim must be denied. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Odya-Weis, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.