DocketNumber: Docket No. 636-75.
Citation Numbers: 36 T.C.M. 1471, 1977 Tax Ct. Memo LEXIS 77, 1977 T.C. Memo. 367
Filed Date: 10/17/1977
Status: Non-Precedential
Modified Date: 11/20/2020
*77 P retired from the U.S. Ari Force based upon his length of service. The Veterans' Administration subsequently determined that P was entitled to a 40-percent service-connected disability rating and compensation therefor, but this determination did not result in any change in his Air Force retirement status.
MEMORANDUM FINDINGS OF FACT AND OPINION
SIMPSON,
FINDINGS OF FACT
Some of the facts have been stipulated, and those facts are so found.
The petitioners, John J. Johnson, Jr., and Estell C. Johnson, husband and wife, maintained their legal residence in Silver Spring, Md., at the time of filing their petition in this case. They timely filed a joint Federal income tax return for the calendar year 1973 with the District Director of Internal Revenue, Baltimore, Md. Mr. Johnson will sometimes be referred to as the petitioner.
On October 1, 1965, Mr. Johnson retired from the U.S. Air Force after 20 years of active service. As a result of a medical examination*79 performed by Air Force doctors in April 1965, the Air Force determined that Mr. Johnson was physically capable to continue in the active service or to retire with a status of "without disability." Accordingly, he was retired as physically fit with pay based on years of service.
Shortly after his retirement, Mr. Johnson submitted a claim to the Veterans' Administration (V.A.) for compensation for service-connected disabilities. The V.A. determined that he was suffering from prostatitis and recurrent lumbosacral strain, each incurred during military service and each rated as 10-percent disabling. In a notice dated August 4, 1966, the V.A. awarded Mr. Johnson a 20-percent combined service-connected disability rating, entitling him to receive $32 per month from the V.A., retroactive to October 1, 1965. Subsequently, Mr. Johnson filed V.A. forms by which he expressly waived that portion of his Air Force retirement pay which was equal in amount to the compensation awarded him by the V.A. 2
*80 In July of 1966, Mr. Johnson accepted a civilian position with the U.S. Air Force in Germany. As a result of a medical examination conducted by Air Force doctors at Ramstein Air Base, Germany, Mr. Johnson was diagnosed as suffering from Paget's disease, a degenerative bone condition. On approximately October 6, 1969, he applied to the V.A. for an increase in his degree of disability rating. The V.A. notified him on August 27, 1970, of its determination that his Paget's disease was incurred in wartime service and was considered to be 20-percent disabling. The V.A. increased his combined disability rating to 40 percent; such rating entitled him to disability benefits of $89 monthly from October 6, 1969, and $96 monthly from July 1, 1970. During 1973, Mr. Johnson received disability compensation of $106 per month from the V.A.
On April 26, 1972, and May 21, 1975, Mr. Johnson filed with the Department of the Air Force applications for correction of his military records, requesting a change in his retirement status from retirement based on length of service without disability to retirement with 40-percent disability. Both such requests were rejected by the Air Force.
In 1973, *81 Mr. Johnson received a total of $1,272.00 in disability benefits from the V.A.; the Commissioner concedes that such amount is excludable from gross income under
Adjustment is to Income to show entitlement to Disability Retirement exclusion as provided by
Exclusion of 40% disability of Basic Pay at | |
time of Retirement in 1965; ($9648.00 X.40) | = $3,859.20 |
Less VA Compensation (1973) | - $1,272.00 |
Allowable exclusion from remainder of | |
Retired Pay | $2,587.20 |
OPINION
*83 Similar arguments were considered in the cases of
Moreover, on the record in this case, we cannot find that the petitioner was entitled to retire on disability. The applicable statute authorizes the retirement of a member of the armed forces who "is unfit to perform the duties of his office, grade, rank, or rating because of physical disability."
Nor can we, at least on this record, hold that the Air Force Board for Correction of Military Records (the board) acted arbitrarily in refusing the petitioner's requests to change his records. The board is empowered to correct any military record where necessary "to correct an error or remove an injustice."
*86 We hold that the petitioner has failed to establish that he was entitled to retire on the basis of disability; hence, no portion of the payments made to him by the Air Force is excludable under
To reflect settlement of another issue by the parties,
1. All statutory references are to the Internal Revenue Code of 1954 as in effect during the year at issue, unless otherwise indicated.↩
2. Under the applicable statutes which prohibit duplication of benefits, Mr. Johnson was required to file such a waiver in order to receive his monthly disability compensation from the V.A.
3. A disability retiree is entitled to have his retired pay computed on the basis of years of service, rather than percentage of disability, if the former is more favorable to him.
4. In view of the petitioner's failure to prove that he was entitled to retire on disability or that the board acted arbitrarily in refusing his requests, we do not reach the question of what action, if any, should be taken by this Court if he had established such facts.If the petitioner wished to challenge the board's determination, he could have brought an action in the district court under
Hubert Ashe v. Robert S. McNamara Secretary of Defense , 355 F.2d 277 ( 1965 )
Vincent Ragoni v. United States of America, Secretary of ... , 424 F.2d 261 ( 1970 )
Walter F. Freeman v. United States , 265 F.2d 66 ( 1959 )
Frederick v. McNair and Agnes D. McNair His Wife v. ... , 250 F.2d 147 ( 1957 )
George L. Sanford v. United States of America, United ... , 399 F.2d 693 ( 1968 )
Raymond C. Haines v. United States of America, Secretary of ... , 453 F.2d 233 ( 1971 )
Simms v. Commissioner of Internal Revenue , 196 F.2d 238 ( 1952 )
Wales v. United States , 130 F. Supp. 900 ( 1955 )
Prince v. United States , 119 F. Supp. 421 ( 1954 )
Robert E. Williams v. The United States , 405 F.2d 890 ( 1969 )