BOARD DATE: 4 February 2016 DOCKET NUMBER: AR20150005995 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 an extension of his incapacitation pay for the period 1 May 2013 to 4 December 2014. 2. The applicant states: a. He was injured while deployed to Afghanistan in support of Operation Enduring Freedom (OEF). b. He was unable to return to his civilian or military employment and therefore, upon completion of his Medical Evaluation Board (MEB) and final processing through the Integrated Disability Evaluation System (IDES), he was eligible to receive incapacitation pay. c. The Pentagon G-1 returned his last request for an extension of incapacitation pay indicating it could not be processed because he had been discharged from the Army and advised him to apply to the ABCMR. 3. The applicant provides: * nineteen DA Forms 7574 (Incapacitation Pay Monthly Claim Form) pages 1 – 2 only * six DA Forms 75754-1 (Military Physicians’ Statement of Soldier’s Incapacitation/Fitness for Duty) * DA FORM 3947 (Medical Evaluation Board Proceedings) * Physician’s Statement * Release from Active Duty (REFRAD) Order * United States Army Physical Disability Agency (USAPDA) Memorandum * Colorado Army National Guard (COARNG), Letter dated 25 September 2014 * four DA Forms 3349 (Physical Profile) * Discharge Order * INCAP Computer Printout with end date 31 July 2013 * Joint Forces Headquarters (COARNG) Memorandum 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 29 September 2014, an Informal Physical Evaluation Board (PEB) found the applicant physically unfit based on his conditions of (1)” post-traumatic stress disorder (PTSD) and major depressive disorder, recurrent, moderate” and (2) “mild left hip degenerative joint disease(DJD) and recurrent left trochanteric bursitis, mild.” The PEB recommended the applicant be permanently retired with a disability rating of 70 percent. 4. The applicant provided thirteen DA Forms 7574 or incapacitation pay claims which shows he was incapacitated during the period 1 June 2013 through 4 December 2014. Each of these forms includes his unit commander’s and employer’s verification. 5. The applicant provides five DA Forms 7574-1 which combined, documents his incapacitation during the period 1 June 2013 through 4 December 2014. These forms where authenticated by the applicant’s physician and confirm he was unfit to perform both his military and civilian duties based on his PTSD and major depressive disorder. 6. On 4 December 2014, he was transferred to the Retired Reserve in the retired rank and pay grade of staff sergeant/E-6 having completed over 12 years of service for retired pay. 7. On 27 May 2015, the Office of the Deputy Chief of Staff, G-1, Compensation and Entitlement Division, provided an advisory opinion recommending the applicant be granted relief and paid incapacitation pay for the period 1 May 2013 to 4 December 2014. 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. The applicant retired from the United States Army Reserve (USAR) on 5 December 2014 (i.e., became a member of the Retired Reserve effective that date), and as a result was unable to receive his incapacitation pay for the period in question. 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. 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 May 2013 to 4 December 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 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: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _x_______ ___x_____ _x____ 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 May 2013 to 5 December 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) AR20150005995 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005995 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1