America’s combat-injured veterans should be the last people forced to sue the government, but the injustice of “concurrent receipt” has left them with little choice. This policy prevents veterans, including many here in Georgia, from receiving both their Department of Defense (DoD) retirement pay and their Department of Veterans Affairs (VA) disability compensation. The Major Richard Star Act (H.R.1282/S.344), named after a decorated veteran who succumbed to service-related cancer, would partially address this issue by removing the offset for over 50,000 affected veterans. Yet, despite broad bipartisan support, the bill remains stalled in Congress. Thus, many veterans are now considering a class action lawsuit to challenge this policy on constitutional grounds.
For well over a century, combat-injured veterans faced a system seemingly more interested in balancing the budget than honoring their sacrifices. The courts, however, may provide a renewed opportunity to seek relief. A new lawsuit could argue that the concurrent receipt prohibition violates veterans’ rights under the Fifth Amendment’s Equal Protection Clause. While similar legal challenges, such as in Howard v. United States (2003), failed in the past, several changes in the legal and political landscape could lead to a different outcome this time.
Currently, veterans who serve 20 or more years (longevity retirees) can receive both benefits, but those forced to retire with less than 20 due to combat injuries face the offset, which reduces their total retirement income. Critics argue that justifying this offset as exchanging taxable for non-taxable pay is misleading, especially for those whose combat-related disabilities already make their retirement pay tax-free. While Congress has shown bipartisan support for the Act, political gridlock over funding rules has prevented its passage. Veterans, increasingly disillusioned by and impatient with political promises, are now turning to the courts for justice.
In Howard v. United States (2003), veterans argued that the concurrent receipt prohibition violated their equal protection rights. The Federal Circuit Court of Appeals rejected this argument, holding that the law was rationally related to the government’s interest in fiscal restraint. Several developments since then could weaken this argument in a new lawsuit.
Since Howard, Congress took significant steps to partially repeal the prohibition. Legislation initially allowed veterans with 20 years of service and a 50% disability rating to receive both benefits. But in 2008, Congress established Combat Related Special Compensation (CRSC) to further address the offset, though most recipients with less than 20 years of service receive less than 50% of their equivalent retirement pay due to unfair calculations prioritizing those with closer to 20 or more years. This evolving policy suggests a growing recognition that the offset is no longer rational or necessary even if it was over one hundred years ago.
Courts have also become more receptive to equal protection claims involving veterans’ benefits. A new lawsuit could argue that the offset disproportionately affects combat-injured veterans forced into early retirement, who are often unable to work or support their families. Moreover, the current statutory scheme historically pitted longevity retirees against medical retirees with less than 20, subjecting them to discriminatory treatment over longevity retirees. Given the unique nature of their sacrifices and the arbitrary exclusion of veterans with less than 20 years of service, a court might find this group deserving of heightened scrutiny under the Equal Protection Clause.
Moreover, the government has long cited fiscal responsibility to justify the prohibition. However, recent audits revealing significant mismanagement of DoD funds undermine this claim. Veterans’ advocates argue that it is disingenuous to claim fiscal restraint when billions of dollars go unaccounted for annually, rendering the offset an arbitrary burden on disabled veterans. After all, fiscal responsibility shouldn’t be a cop-out to taking actual responsibility for America’s wounded veterans.
And while veterans organizations brought widespread attention by mobilizing support groups, lawmakers, and the public, a class action lawsuit is likely to garner substantial media coverage and public sympathy, pressurizing the courts to take a second look. In the post-9/11 era, where veterans are seen as national heroes, a court might be more willing to strike down a law that appears to penalize those who were wounded while serving their country even if the law seemed rational over a century ago.
If successful, the lawsuit could have far-reaching implications. For veterans, it would provide much-needed financial relief, allowing them to receive the full benefits they earned. This change would be especially impactful for those unable to work due to their injuries, who rely heavily on these benefits to support their families.
For the military, a lawsuit could influence recruitment and retention. Potential recruits might reconsider joining if they believe they will be denied full benefits should they be injured in combat. Similarly, experienced service members may choose early retirement rather than risk losing benefits if medically retired. Addressing this inequity would help restore trust and fairness in the military compensation system.
Combat-injured veterans shouldn’t have to choose between their retirement pay and the disability compensation they earned; these aren’t duplicate benefits. While the Act remains stalled in Congress, a class action lawsuit could provide the catalyst needed to finally bring about change. By challenging the constitutionality of the concurrent receipt prohibition, veterans have a real opportunity to end this injustice once and for all. If successful, the lawsuit wouldn’t only provide financial relief to thousands of veterans but also reaffirm the nation’s commitment to those who have sacrificed so much in its defense.
William J. Black, III, is a Georgia attorney and combat-disabled retiree of the U.S. Air Force who was a 2021 Department of Defense Warrior Games Athlete.
