RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-01381
		
 						COUNSEL:  NONE

						HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

He be approved for Incapacitation (INCAP) Pay for the period of 10 August 2014 to 27 September 2014.     

APPLICANT CONTENDS THAT:

He provides documents showing approval of his request for INCAP Pay for the period of 1 April 2014 to 30 September 2014.

In support of his request, the applicant provides an AF IMT 1768, Staff Summary Sheet, which reflects that on 17 April 2014, the 175th Wing Commander (175 WG/CC), Maryland Air National Guard (MDANG) approved his request for INCAP Pay for the period of 1 April 2014 to 30 September 2014.  The request was also approved by the MDANG Commander on 24 April 2014.  

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant entered this period of active duty on 25 March 2012 and was released from active duty service on 9 August 2012 with a narrative reason for separation of “Release due to demobilization.”  

Per the AF IMT 348, Line of Duty Determination, dated 30 August 2012, the applicant’s right shoulder and neck injury incurred in June 2012 during a period of active duty while deployed to Bagram AB, Afghanistan was found in the Line of Duty (LOD). 

The applicant’s AF Form 469, Duty Limiting Condition Report,  dated 12 June 2014, reflects duty and mobility restrictions through 12 June 2015 and that he was undergoing a Medical Evaluation Board (MEB) to determine medical fitness for continued worldwide duty and retention.  

On 27 September 2014, the applicant was honorably discharged from the MDANG and placed on the permanent disability retired list per Special Order P-001754 dated 5 November 2014.

On 28 September 2014 the applicant was retired in the grade of Technical Sergeant (TSgt, E-6) for permanent disability with a compensable rating of 40 percent per Special Order ACD 03385 dated 3 September 2014.  

The remaining relevant facts pertaining to this application are described in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is included at Exhibit C.  

AIR FORCE EVALUATION:

NGB/A1P recommends denial.  The applicant did not submit INCAP pay documentation to his wing for a determination to be made by NGB.  The applicant did not apply for INCAP Pay for the period of 10 August 2014 to 27 September 2014 in accordance with ANGI 36-3001, Air National Guard Incapacitation Benefits.  If the applicant would have applied for the INCAP Pay program and submitted the required paperwork, he may have been eligible to receive entitlements.

Per ANGI 36-3001, an ANG member who is unable to perform military duties, as determined by the Secretary concerned, due to an injury, illness or disease incurred or aggravated in the LOD is entitled to full pay and allowances, including all incentive and special pays, less any earned income as provided under 37 U.S.C. § 204(g) and DODI 7000.14-R, Financial Management Regulation, Volume 7A, commonly referred to as INCAP Pay.   The Assistant Secretary of Defense for Reserve Affairs shall be provided a copy of the approval notice if payment of pay and allowances exceeds 24 months.   

The NGB Staff Summary Sheet dated 13 June 2014 reflects the ANGR/CC approved the applicant’s request for an extension of his INCAP Pay for the period of 1 April 2014 to 9 August 2014 on 20 June 2014.  The applicant was approved for initial INCAP Pay from 8 April 2013 to 30 September 2013 and first INCAP Pay extension for the period of 1 October 2013 to 31 December 2013.  It further states, the applicant was not working and was being treated for the condition.  Per his unit commander, he may not perform any military duty.  The applicant is entitled to full pay and allowances including all incentive and special pay less any earned income.  

A complete copy of the NGB/A1 evaluation, with attachment, is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He provides AF IMT 1768 which reflects his wing commander signed his application for INCAP Pay through 30 September 2014.  He also provides copies of a memorandum from the 175 MDG, AF Form 348, reply to his Congressman and DODI 1241.01, Reserve Component Medical Care and Incapacitation Pay for Line of Duty (LOD) Conditions.  The request for INCAP pay was submitted and received by his Physical Evaluation Board Liaison.

The applicant’s complete submission, with attachments, is at Exhibit E.

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  After a thorough review of the evidence of record and the applicant’s complete submission, we believe the applicant is the victim of an error or injustice.  We note NGB/A1P recommends denial stating the applicant failed to submit his INCAP Pay for the period requested to his wing commander for NGB consideration.   However, we are persuaded the AF IMT 1768 provided by the applicant reflects his wing commander and the MDANG Commander approved the applicant’s request for INCAP Pay through 30 September 2014.  It appears due to no fault of the applicant, the request was not forwarded to NGB/A1P for consideration.  Furthermore, given the applicant was previously approved for and received INCAP Pay from 8 April 2013 to 9 August 2014, we find no reason why he should be denied INCAP Pay for the remaining short interim period prior to his permanent disability retirement on 28 September 2014 as a result of the LOD injury.  In view of the above, it is our opinion the applicant has sustained his burden of proof that he has been the victim of an error or injustice.  Therefore, we recommend the applicant’s records be corrected as indicated below.  

4.  The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that he was entitled to receive Incapacitation Pay for the period of 10 August 2014 to 27 September 2014.   

The following members of the Board considered AFBCMR Docket Number BC-2015-01381 in Executive Session on 7 July 2016 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

All members voted to correct the records as recommended.  The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 30 March 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, NGB/A1P, dated 29 October 2015,
			  w/atch.
	Exhibit D.  Letter, AFBCMR, dated 3 November 2015
	Exhibit E.  Letter, Applicant, dated 29 November 2015, 
			  w/atchs.