PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           22 May 2003                   
	DOCKET NUMBER:   AR2003086016

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr.Raymond V. O’Conner Jr. 		Chairperson	
	Mr. Stanley Kelley		Member	
	Ms. Gail J. Wire. 		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that the incapacitation pay he was authorized be restored.

3.  The applicant states, in effect, that because his unit failed to process his Line of Duty (LOD) determination in a timely fashion to allow for the authorization of incapacitation pay, he was forced to receive advance sick leave from his civilian employer in order to survive financially.  The advance sick leave he took during this period was considered as income for incapacitation pay purposes and ultimately lead to the incapacitation pay he received being collected back by the Government.  He claims that he suffered the injury in the LOD, which authorized incapacitation pay, but based on untimely processing, he is unjustly left to suffer the consequences of these administrative errors.  The applicant provides the enclosed expanded statement for the Board’s consideration, which includes information in regard to the financial difficulties he now faces, which could result in his losing his home of sixteen years.  

4.  The applicant’s military records show that as of the date of his application to this Board, he was still serving as a staff sergeant in the United States Army Reserve (USAR).  

5.  On 22 October 2000, the applicant injured himself while taking a unit 
Army Physical Fitness Test (APFT).  The unit commander completed a Statement of Medical Examination and Duty Status (DA Form 2173) on that same date, in which he verified that the applicant was present for duty on inactive duty for training status, and that he was injured while taking the unit APFT.  The unit commander also confirmed that a formal LOD investigation was not required and that the applicant’s injury was considered to have been incurred in the LOD. 

6.  The record shows that medical authorities authorized the applicant to return to work on a limited basis prior to his surgery on 1 December 2000.  In December 2000, because his LOD determination had not yet been approved and his unit had yet to submit his request for incapacitation pay, the applicant requested and received advance sick leave from his civilian civil service employer in order to meet his financial obligations.  

7.  The DA Form 2173 prepared in October 2000, was not forwarded to 
the LOD approval authority until 9 January 2001.  On 24 January 2001, the 
proper LOD authority finally reviewed the DA Form 2173 for completeness and approved the “In Line of Duty” determination.  Upon completion of the LOD determination, the applicant’s request for incapacitation pay was processed and approved.  However, because finance officials determined that the applicant’s advance sick leave from his civilian employer constituted civilian income, a major portion of the incapacitation pay the applicant received was considered an overpayment and was collected back as a debt to the Government.  
8.  On 9 June 2002, the applicant’s unit commander submitted a memorandum to the Defense Finance and Accounting Service (DFAS) Inspector General (IG), requesting that a supplemental request for incapacitation pay for the applicant for December 2000 and January 2001 be approved.  The unit commander stated that when the applicant submitted his initial claim for incapacitation pay, the money he received as a result of the advance borrowing of sick leave was included as income.  The unit commander claimed that the advance sick leave should not be considered income, but rather a loan from the applicant’s employer.  He further indicated that the applicant was still paying back the borrowed leave to his employer at that time.  Based on his review of the financial record of incapacitation pay paid and collected back by the applicant, the unit commander calculated that the applicant was due $2,210.00 of incapacitation pay for the month of December 2000 and $1,291.86 for the month of January 2001.   

9.  While no formal reply from the DFAS IG is in the record, e-mail traffic would indicate that the unit commander’s supplemental request that the applicant receive incapacitation pay was denied by DFAS officials.  This denial seems to be based on a determination by personnel and finance incapacitation pay proponents that borrowed sick leave is considered earned income for incapacitation pay purposes.  

10.  Public Law 99-661, 14 November 1986, changed the method the Army used for determining entitlement to incapacitation pay.  Prior to the effective date of this statute, a Reservist was entitled to full pay and allowances, without regard to loss of civilian income, if that Reservist was determined unable to perform “normal military duties.”  After the passage of that statute, entitlement to incapacitation pay was governed strictly by a Reservist demonstrating a loss of civilian income.  If a Reservist lost civilian income as a result of an injury or disease incurred while performing official military duties, the Reservist would be reimbursed up to, but not to exceed, the active duty pay and allowances he or she would receive for their military pay grade and years of service.

11.  Army Regulation 135-381 provides policies and procedures regarding medical benefits, hospitalization, disability entitlements, incapacitation pay, and death benefits for members of the USAR and the Army National Guard of the United States.  The regulation states, in effect, that incapacitation pay is authorized for a member injured or incurred or aggravated an illness or disease in line of duty.  A completed favorable LOD investigation is a prerequisite for receiving incapacitation pay.  

CONCLUSIONS:

1.  By law and regulation, the purpose of incapacitation pay is to compensate Reservists for the loss of civilian income experienced as a result of an injury or disease incurred while performing military duties.  If a Reservist experiences a loss of civilian income as a result of an injury or disease incurred while performing official military duties, the Reservist is reimbursed up to, but not to exceed, the active duty pay and allowances authorized for their military pay grade and years of service.

2.  The Board finds that the determination of personnel and DFAS officials that the advance sick leave the applicant received was earned income for incapacitation pay purposes may be technically correct.  However, the Board finds this is not the determinate factor in this case, and that there are extensive equity considerations that should be applied in this case.  

3.  The evidence of record confirms the applicant was injured in the LOD on 
22 October 2000, and that although the processing was delayed, his injury was ultimately determined to be “In the LOD” by the proper authority.  The record also confirms that the applicant was authorized to receive incapacitation pay as a result of the civilian income he lost in December 2000 and January 2001 based on this injury he received in the LOD.    

4.  In the opinion of the Board, although the advance sick leave taken by the applicant was technically considered earned income, it appears he was forced to take this leave in order to meet his financial obligations.  Further, it is clear the applicant has and will continue to suffer unjust financial hardships that result when he must take leave without pay to deal with emergency situations, which is necessitated by his negative sick leave balance.  

5.  In view of the facts of this case, the Board finds that the applicant has suffered an injustice in the form of lost income and financial hardship that was in part caused by his not receiving full incapacitation pay in a timely manner.  Therefore, it would serve the interest of equity to correct the applicant’s record to show he is entitled to the full incapacitation pay requested by his unit commander for the months of December 2000 ($3,120.44) and January 2001 ($3,370.83), and by providing him any unpaid portion of this incapacitation pay, to include reimbursement for any incapacitation pay monies collected as a debt to the Government.  

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that full incapacitation pay was authorized for the individual concerned for the months of December 2000 ($3,120.44) and January 2001 ($3,370.83); and by providing him any unpaid portion of the incapacitation pay authorized, to include reimbursement of any incapacitation pay monies previously collected from him as a debt to the Government.  

BOARD VOTE:  

__SK__  ___GW__  __RO__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Raymond V. O’Conner
		    CHAIRPERSON

INDEX

CASE ID	AR2003086016	
SUFFIX		
RECON		
DATE BOARDED	2003/05/22	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  283	128.0000	
2.		
3.		
4.		
5.		
6.