IN THE CASE OF: BOARD DATE: 3 March 2015 DOCKET NUMBER: AR20150003701 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests payment of incapacitation pay. 2. The applicant states, in effect, that his unit’s failure to submit his request for incapacitation pay in a timely manner resulted in his claims being processed after he was medically retired and denial of those claims because he was no longer in the service. 3. The applicant provides his incapacitation pay claims with allied documents for the months of September, October, and November 2014. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant is a former member of the Colorado Army National Guard (COARNG). 3. On 22 September 2014, an Informal Physical Evaluation Board (PEB) found the applicant physically unfit. The PEB recommended the applicant be permanently retired with a disability rating of 50 percent. 4. The applicant provided his incapacitation pay claims which include a DA Form 2173 (Statement of Medical Examination and Duty Status). This form shows the applicant sustained a back injury on 25 September 2012 which was determined to be in the line of duty on 12 March 2013. Subsequently, he submitted incapacitation pay claims on: * 1 October 2014 for the period 1-30 September 2014 * 31 October 2014 for the period 1-31 October 2014 * 20 November 2014 for the period 1-30 November 2014 5. On 26 November 2014, he was transferred to the Retired Reserve in the retired rank and pay grade of sergeant first class/E-7 having completed over 18 years of net service. 6. His unit completed the incapacitation pay checklist for all of the above claims on 12 January 2015. 7. On 27 May 2015, the Office of the Deputy Chief of Staff, G-1, Compensation and Entitlement Division, provided an advisory opinion. This official recommended approval of the applicant’s request for incapacitation pay with full pay and allowances. Upon reviewing the applicant’s documents, to include his monthly claim submissions, it was determined that all documents were filed correctly and submitted to his unit on time. 8. A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. No response was received within the allowed time period. 9. Army Regulation 135-381 (Incapacitation of Reserve Component (RC) Soldiers) establishes procedures and policies and implements statutory authorities regarding medical, dental, hospitalization, and disability benefits, incapacitation compensation, and death benefits, as well as reporting requirements on these entitlements for RC Soldiers. It provides in: a. chapter 1, paragraph 1-6, that a member of the RC incurring or aggravating any injury, illness, or disease in the line of duty is entitled to medical and dental care, incapacitation pay, and travel and transportation incident to medical and/or dental care, in accordance with Title 37 U.S. Code (USC) 204 and 37 USC 206. b. paragraphs 1-10 and 1-11 that commanders will complete the DA Form 2173 within sufficient time to ensure that pay and allowances will commence within 30 days of the date that the injury, illness, or disease was reported, unless there is clear and convincing evidence that the injury, illness, or disease was not incurred or aggravated in a duty status. Incapacitation pay will be paid only during the period a member remains unfit for military duty or demonstrates a loss of earned income as a result of the incapacitation. Payment in any particular case may not be made for more than 6 months without review of the case by appropriate headquarters. DISCUSSION AND CONCLUSIONS: 1. The applicant requests incapacitation pay for the period 1 September to 30 November 2014. 2. The available evidence shows the applicant met the eligibility criteria for receipt of incapacitation pay for the period requested, as evidenced by the NGB advisory opinion and the additional evidence provided by the applicant. The available evidence shows the applicant’s claims were all processed on the same date but months after having been submitted and after the applicant was medically retired. The evidence shows he made a timely request for incapacitation pay and he should not be penalized for the delay in processing. BOARD VOTE: ___x____ ___x____ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that State Army National Guard records and all Department of the Army records of the individual concerned be corrected by: a. showing the applicant’s claims for incapacitation pay for the period 1 September to 30 November 2014 were approved and processed in a timely manner; and b. paying the applicant all incapacitation pay due as a result of the above correction. _______ _ x ______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150003701 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003701 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1