TDRL - Temporary Disability Retired List

Military personnel who have been found to be unfit for duty by a Physical Evaluation Board with a disability rating of at least 30% are placed on either the Temporary Disability Retired List (TDRL) or the Permanent Disability Retired List (PDRL).

Disability Evaluation System (PEB/MEB)

A physician who finds that a member may be medically unfit for duty will refer the member to the military medical board system.

The first step is a Medical Evaluation Board (MEB), which is simply a review of the member’s medical history by at least two physicians. The process is informal and quick (typically about three months), and at the end, the MEB only issues a non-binding recommendation as to whether the member is capable of performing his/her military duties.

A Physical Evaluation Board (PEB) is conducted to review the MEB findings if the MEB has found the member unfit for duty. The board reviews the member’s medical records to determine whether she is fit for duty and her disability rating,

If the PEB finds member is unfit for duty and has at least a 30% disability rating, the member is placed on either the Temporary Disability Retired List or the Permanent Disability Retired List.

For more information about the MEB & PEB systems, see the Department of Defense Manual 1332.18 (Volume 1 & Volume 2).

Temporary Disability Retired List (TDRL)

The Temporary Disability Retired List, governed by 10 U.S. Code § 1202 & § 1205. is intended for service members who have a qualifying medical condition which is not yet stabilized enough for a permanent rating. The word “temporary” does not necessarily mean that the condition will go away, it refers to the fact that the placement on the TDRL is only temporary while the condition is assessed.

The member is removed from the TDRL if either (1) the disability has stabilized and become permanent, or (2) the member is fit to return to duty.

A military member can remain on the TDRL for up to three years (note that a member placed on the list prior to the enactment of the 2017 National Defense Authorization Act (December 23, 2016) can remain on the list for up to 5 years). Thereafter, if he remains unfit for duty, he is either:

1. Retired for longevity, if eligible (i.e. 20 years of service),
2. Put on the Permanent Disability Retired List (PDRL) if he/she has under 20 years of service, or
3. Medically separated with disability severance pay if the disability is under 30%.

A member on the TDRL retains his/her military ID card. However, time on the TDRL does NOT count towards the longevity retirement. So a member with 17 years of service who is placed on the TDRL, and remains there for five years, still has just 17 years of creditable service, not 22 years, so cannot receive the normal 20-year retirement.

Monthly Payments. Pursuant to 10 U.S. Code § 1401, a servicemember on the TDRL receives the greater of either (1) 2.5% x base pay x years of service, or (2) base pay x disability %. So a service member with 20 years of service but a 30-40% disability is better off with the longevity option, and a more disabled member with fewer years of service is better off with the straight disability calculation.

Disability Severance Pay

A service member removed from the TDRL who meets the following criteria set forth in 10 U.S. Code § 1203 is eligible for severance pay:

1. Under 20 years of service,
2. The disability was not caused by intentional misconduct or willful neglect, nor while the servicemember was AWOL,
3. The disability is or may be permanent, and
4. The disability is under 30% and incurred in the line of duty or as a result of service.

What does this mean? If a military member is unfit for duty, but not otherwise eligible for a normal 20-year retirement or for the PDRL, he is separated with disability severance pay.

Amount of Severance Pay. The formula for calculating the pay is set out in 10 U.S. Code § 1212. It is: years of active service x 2 x base pay at the time of removal from the TDRL. For the complete calculation guidelines, see the DOD Financial Management Regulation, Volume 7B, Chapter 11, Section 110201.

This payment may be substantial. As an example, in 2018 an E-6 with 10 years of service has a base pay of $3564. That member’s severance pay would be 10 x 2 x 3564, or $71,280.

There is no clear-cut case law concerning whether disability severance pay is divisible in Colorado. In a 1997 decision, the Colorado Court of Appeals decision held that a lump sum payment to a member who opted for a voluntary separation incentive (VSI) is divisible marital property. In re: Marriage of Heupel, 936 P.2d 561 (Colo. App. 1997). However, that decision is distinguishable from disability severance pay on at least two grounds. In Heupel:

1. The lump sum was paid in lieu of retirement, not as compensation for a disability, and
2. The member voluntarily opted to leave early and take the money, while a disability severance is involuntary.

More recent case law pertaining to the TDRL & PDRL (discussed below) suggests that disability severance payments will likely not be treated as marital property in Colorado.

Permanent Disability Retired List (PDRL)

The Permanent Disability Retired List, governed by 10 U.S. Code § 1201 is for service members who are unfit for duty with a permanent condition and either:

1. The member has at least 20 years of service, or
2. The disability is at least 30% and incurred in the line of duty.

Members on the PDRL receive disability retirement as set forth in 10 U.S. Code § 1401. Multiply the member's high three (final pay if entered the military prior to 9/8/1980), by the higher of either (1) the years of service x 2.5%, or (2) the servicemember's disability rating (max 75%).

VA Waiver of Disability Retirement

A servicemember who is medically retired is invariably going to be eligible for disability payments from the VA. Pursuant to 10 U.S. Code § 1414(b)(2), a medically-retired member with fewer than 20 years of service still must waive retirement, dollar for dollar, by the amount of VA disability received, regardless of his disability rating.

This is in contrast to a member who is eligible for a 20-year retirement who waives retirement only with a disability rating of under 50% - regular retirees with a disability rating of 50% or higher receive both disability and retirement.

From a practical perspective, this means that a medically-retired member will end up receiving an amount equivalent to the higher of (1) the military retirement, or (2) the VA disability. If the disability is higher, he/she will receive only disability. If the military retirement is higher, he/she will receive disability, and then the difference between the disability received and the full retirement.

Colorado Treatment of TDRL & PDRL in a Divorce

Pursuant to In re: Marriage of Williamson, 205 P.3d 538 (Colo. App. 2009), all of a member’s pay which is based upon disability is excluded from division. Because in that case the military member had fewer than 20 years of service, he was not eligible for a 20-year retirement, and but for the disability, would not have received any payments.

Because of that, everything the member received was attributable to his disability, and therefore excluded from division by the court. In short, TDRL & PDRL (disability retirement) payments to a member with fewer than 20 years of service are not divisible.

In a follow-up decision, the Colorado Court of Appeals ruled that the divorce court cannot divide the disability portion of the TDRL of a member with more than 20 years of service. In re: Marriage of Poland, 264 P.3d 647 (Colo. App. 2011). The court there determined that the portion of the payments which were attributable to disability were not divisible, and to the extent the servicemember received any excess, only that excess payment was divisible:

“We conclude, based on 10 U.S. Code § 1408(a)(4)(C), that an amount equal to the amount of TDRL pay, as calculated based on husband's percentage of disability when he was placed on the TDRL, must be excluded from the marital property, but that any amounts in excess of that amount may be divided under the decree.”.

What does this mean? Consider two hypothetical examples for a servicemember with a base pay of $5000/mo:

1. Assume 10 years of service, and an 80% disability rating. The longevity formula pays the member $1250/mo (2.5% x 10 x $5000), but the disability formula would pay him $4000/mo (80% x $5000). Under Poland, the member's entire $4000 payment is attributable to the disability, and therefore not divisible by the court.
2. Assume 20 years of service, and a 30% disability rating. The longevity formula pays the member $2500/mo (2.5% x 20 x $5000), but the disability formula pays only $1500 (30% x $5000). In this scenario, the member would receive $2500/mo, which is $1000 more than his disability alone is worth, so that $1000 excess is divisible by the court per the standard time-rule formula.

TDRL/PDRL & Maintenance/Child Support

Similar to other non-divisible payments, such as social security or VA disability, Colorado family law courts still count TDRL and PDRL disability payments as income for purposes of determining maintenance and child support.

More Information

DOD Financial Management Regulation, Vol. 7B, Chapter 11, Removal from the Temporary Disability Retired List (TDRL)

Disability Retirement article, DFAS.

TDRL Frequently Asked Questions, U.S. Army Human Resources Command