IN THE CASE OF: BOARD DATE: 27 September 2016 DOCKET NUMBER: AR20150008025 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _____X___ ____X____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 27 September 2016 DOCKET NUMBER: AR20150008025 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________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. IN THE CASE OF: BOARD DATE: 27 September 2016 DOCKET NUMBER: AR20150008025 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 correction of his records by removing documentation that references periods of service during which he was declared absent without leave (AWOL) and paying him incapacitation pay for these periods. 2. The applicant states: a. His commander, through the Readiness Noncommissioned Officer (NCO) /clerk, was provided all the documentation from his doctors so he would not have to travel to attend drills due to his injuries. His commander stated that civilian doctors did not override military doctors; however, there was never a decision made by any military doctor and none of the civilian medical documents he submitted to the unit were ever forwarded to the State Surgeon for evaluation. b. He was not paid all of his incapacitation pay from the Arizona Army National Guard (AZARNG) prior to his discharge. The dates for which he was not paid coincide with the dates he was declared AWOL. He was informed he must submit this application in order to receive the remainder of his incapacitation pay. c. He was assigned to the 3666th Maintenance Company, AZARNG. He was injured during his first deployment to Iraq, between June 2009 and July 2010, when during combatives training, he was injured by another unit member. His pain worsened over the next three days and he was taken to the troop medical clinic. He was given physical therapy but he did not get better. He went home on leave and was seen by his primary care physician. She advised him that the injuries were serious and he would probably require surgery. He returned to Iraq and completed the deployment. During demobilization at Fort Bliss, TX, he talked with the medical staff and was told to just take care of it when he returned home to Arizona. d. He returned to Arizona and continued to drill and a line of duty (LOD) investigation was completed on 9 September 2010, due to the injuries he sustained in Iraq. It was determined that he would not be able to return to his civilian job, due to his injuries, so an incapacitation pay packet was completed. He was also on military physical profiles. His injuries continued to worsen and he went to a new primary care physician, who referred him to another doctor to find out what was wrong with his left arm, which he injured in Iraq. He underwent three surgical procedures on his left arm but the surgeries actually created more issues and were eventually found not to be the problem. The physical therapy for the hand and elbow gave him no relief so he was sent to a different doctor to look into his neck and left shoulder. The doctor found issues in his neck radiating down to his left arm. The doctor performed two surgeries, one through the front of his neck (August 2012) and one through the back of his neck (January 2013). Three days after the January 2013 surgery, he slipped on the ice and fell and tore the meniscus in his right knee resulting in surgery. These surgeries gave some relief but not as much as anticipated. He was also having issues with his lower back, which affected his legs; sometimes they just gave out. e. He also would like to talk about his relationship with his commander, Captain (CPT) Vxxx, who was the unit's executive officer during their deployment to Iraq. Initially, he respected him until an incident occurred in Iraq. He allegedly had a female in his room but none was ever found. He and the female were given an Article 15 and reduced in rank, had money taken, and were assigned extra duty. A no contact order was also issued while in Iraq. They fought it in Iraq and went to an attorney. They were denied their rights because the commander (CPT Nxxx) stated that they never tried to fight it; however, their statements had been turned in to legal. CPT Nxxx told CPT Vxxx that he wanted the no contact order enforced until they got back to Arizona. They asked him if he would not enforce the no contact order once they were at Fort Bliss, TX. He stated "absolutely not" and got very belligerent towards them, smiling the entire time. When they returned to Arizona, he and the female went to their AZARNG battalion commander, Colonel Sxxx, to plead their case and to find out what had really been done to them. f. He lives about 192 miles of winding roads and hills away from where he drilled in Phoenix, AZ. Due to his injuries and surgeries, to include pain management (primarily narcotics), he was not able to drive to attend the drills. He would contact the unit administrator about his inability to attend and he and his doctor would fax supporting documents. After a while, his commander insisted that he was malingering and intentionally missing drills so he was issued a counseling statement on 10 April 2012 and a no contact order with the individual who hurt him in Iraq. He responded in writing to the counseling statement on 5 May 2012. g. As noted in his record, the AWOL periods were sporadic and consistent with surgeries or doctor letters recommending that he not travel the distance to drill due to the negative effects on his injuries. The commander was inconsistent with his application of approval to miss drill. He or his doctor always sent the required documentation to his unit as to his medical reasons for not attending drill but the commander insisted that he was a malingerer and picked and chose when he wanted to approve or deny his missed drill. h. He is submitting as much evidence as he could get his hands on. He should have never been released from active duty or from the ARNG until this issue was resolved and he was paid the money he is owed. Because of the alleged AWOL periods, he is missing many months of incapacitation pay. He is roughly owed $70,000. He was told by Major Oxxx, AZARNG Medical Command, that since he was no longer in the AZARNG, the only way for him to get the remainder of the money owed to him is through this process. 3. The applicant provides: * memoranda from the National Guard Bureau (NGB) pertaining to the his LOD determination * NGB Form 22 (NGB Report of Separation and Record of Service) * discharge and retirement documents * DD Form 214 (Certificate of Release or Discharge from Active Duty) * a memorandum from his former commander, dated 10 April 2012, subject: No Contact Order * DA Form 4856 (Developmental Counseling Form) * five DA Forms 7574-1 (Military Physician's Statement of Soldier's Incapacitation/Fitness for Duty) * approximately 200 pages of medical records CONSIDERATION OF EVIDENCE: 1. Following prior service in the ARNG and U.S. Army Reserve (USAR) from 11 March 1986 to 10 March 2000, the applicant enlisted in the ARNG on 29 November 2007. 2. He served in Kuwait/Iraq from 28 October 2009 to 10 June 2010. 3. On 9 September 2010, he received an approved LOD determination for an injury (left cervical radiculopathy) that occurred during Operation Iraqi Freedom. 4. On 5 May 2012, he was counseled by his commander, CPT Vxxx, for: a. On or about 26 April 2012 and on or about 3 May 2012, he had his civilian physician fax a doctor's note directly to the attention of Colonel (COL) Lxxx in reference to his medical status, a position and Soldier outside of his chain of command. b. On or about 19 April 2012, he reported to his platoon sergeant that he had been in contact on or around that week with Ms. Oxxx in reference to his medical board process when in fact, Ms. Oxxx confirmed that she had no emails from him, no voicemails, and she was on leave that week and out of the office during that time period. c. On or about 3 May 2012 he contacted Ms. Oxxx requesting transfer to another unit. When she returned his call, he also told her that he would seek the Inspector General (IG). Although their unit does not prohibit Soldiers from seeking the IG, where he choose to drill was his own financial decision. Their command would not endorse the transfer of a Soldier who continued to exhibit inappropriate behavior, failed to follow basic procedural guidance, and had an inability to complete the requirements that had been set for him, both medically and militarily. He was reminded that he had already been determined to be medically fit to report to duty status in accordance with COL Lxxx. d. Failing to make satisfactory progress by providing the required documentation and fulfilling the required steps as part of his medical board process in a timely manner. e. Insisting against the State Surgeon's medical opinion that his personal and civilian therapist outranks the medical opinion of a military physician and overrides the contract he had with the United States Government. A few days prior to every inactive duty training period, he insisted on visiting this therapist to write additional notes to deter him from fulfilling his military requirements. f. He was reminded that malingering is a punishable offense under the Arizona Code of Military Justice, in that any individual who avoids work, duty, or service by using illness, physical disablement, mental lapse, derangement, or intentionally inflicts self-injury can be punished as a court-martial may direct. lt had been determined that he was fully fit to report to drill and perform his one required Army Physical Fitness Test event, the 2.5 mile walk. 5. He was permanently retired due to physical disability on 16 June 2014. 6. His military records in the Interactive Personnel Electronic Records Management System (iPERMS) do not include documentation pertaining to his incapacitation pay and/or any unauthorized absences he may have accrued. 7. During the processing of this case, an advisory opinion was obtained from the National Guard Bureau (NGB), Personnel Policy Division. In conjunction with the advisory opinion, the NGB included 31 enclosures consisting of 27 DA Forms 1379 (Unit Record of Reserve Training); an AZARNG recommendation regarding the applicant's request; a letter to the applicant from the AZARNG, subject: Letter of Instruction-Unexcused Absence; a copy of a certified mail receipt; and a letter from the NGB, dated 14 June 2013 (recommended reply to the applicant's Representative in Congress). The NGB recommended disapproval of the applicant's request and stated: a. The applicant received an approved LOD on 9 September 2010 for an injury that occurred during Operation Iraqi Freedom on 1 January 2010. b. The applicant received incapacitation (INCAP) pay from 27 July 2010 to 15 June 2014, after which he was medically retired from service in the AZARNG on 16 June 2014. c. An incapacitation review board was held on 19 September 2013 in accordance with Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers), chapter 3. Per the results of the board, he was not entitled to receive incapacitation pay on June 2011, August 2011, September 2011, October 2011, February-June 2012, November- December 2012, and January 2013. d. Department of the Army Pamphlet (DA PAM) 135-381 (Incapacitation of Reserve Component Soldiers Processing Procedures), Figure 2-4 (Sample of DA Form 757 4-2 (Soldier's Acknowledgment of Incapacitation Pay Counseling)), bullet six states, "That I must submit to all medical treatment and report for medical fitness examinations and that failure to do so can result in termination or a deduction of incapacitation pay. It is my responsibility to provide all medical documentation to my unit following medical appointments associated with my injury/illness/disease. Failure to submit all medical treatment documentation including reporting for medical examinations, Physical Therapy or follow up appointments will cause a delay or cancellation of my extension of incapacitation pay." e. The applicant's incapacitation packets for the dates stated above did not provide adequate medical documentation or complete forms in accordance with regulatory requirements. f. This advisory opinion was coordinated with the NGB Personnel Actions/Medical Administrative Actions Branch. g. The AZARNG concurs with this recommendation. 8. The advisory opinion was provided to the applicant to give him the opportunity to respond. No response was received. 9. The NGB provided: a. An AZARNG memorandum recommending disapproval of the applicant's request. The AZARNG expressed their concurrence with the NGB's advisory opinion and based their recommendation on the applicant's failure to submit medical documentation and failure to report for medical fitness exams and scheduled unit training assemblies without proper military approval. b. DA Forms 1379-E that show the applicant accrued unexcused absences (Code "U") during the following periods: * 1-3 October 2010 * 2-3 June 2011 * 6-7 August 2011 * 9-11 September 2011 * 1-2 October 2011 * 4-6 November 2011 * 5-6 January 2013 c. A Letter of Instruction-Unexcused Absence, dated 18 January 2013, that shows he was absent from scheduled unit training assembly during the period 5-6 January 2013 and that he had accrued 4 unexcused absences. d. A copy of certified mail receipt, with the applicant's name and address, processed by the U.S. Postal Service on or 1 February 2013 as "Return to Sender-No mail Receptacle-Unable to Forward." e. Letter from the NGB, dated 14 June 2013 (recommended reply to the applicant's Representative in Congress) recommending it be noted that a claim for incapacitation pay cannot be processed if proper documentation is not provided. Failure to submit all medical treatment documentation will result in a delay, cancellation or no payment of incapacitation pay. 10. The applicant provided: a. Five DA Forms 7574-1, all signed by the evaluating physician on 6 August 2013, that show he was unfit to perform military and/or civilian duties during the following periods: * 10 April-10 July 2012 * 11 July-11 October 2012 * 12 October 2012-12 January 2013 * 13 January-13 April 2013 * 14 July-14 October 2013 b. Medical records that show he had been receiving medical treatment since 2010. These documents do not show he was properly excused by his chain of command for the unauthorized absences his chain of command contends he accrued. These documents also failed to show that he complied with the stipulations of the program by providing to NGB authorities the required documents in a timely manner. REFERENCES: 1. Army Regulation 135-381 provides: a. The objective of the Reserve Component (RC) incapacitation system is to compensate, to the extent permitted by law, members of the RC who are unable to perform military duties and/or who demonstrate a loss in civilian earned income as a result of an injury, illness, or disease incurred or aggravated in the line of duty, and to provide the required medical and dental care associated with the incapacitation. b. 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. c. Payment in any particular case may not be made for more than six months without review of the case by appropriate headquarters. d. To insure that continuation of incapacitation pay is warranted under this regulation, a review will be made every six months. e. Incapacitation pay will continue as long as the conditions warranting the incapacitation pay exist and the approving authority determines that it is in the interest of fairness and equity to continue the payment. f. In Chapter 3 (Incapacitation Review Board), each State headquarters of the ARNG, designated USAR command and control headquarters, Human Resources Command-St. Louis, and USAR Deputy Chief of Staff for Personnel, will establish an incapacitation review board. The purpose of the board is: (1) Protect the Soldiers rights by ensuring that medical benefits and incapacitation pay are provided to Soldiers eligible to receive such benefits under law and as prescribed by the Department of Defense (DOD) and Army regulations. (2) Protect the interests of the Government through controlling costs and eliminating fraud, waste, and abuse by Soldiers receiving unauthorized medical care and improper incapacitation payments. (3) Review each incapacitation pay case monthly and recommend that benefits be continued or terminated consistent with entitlement under governing law and regulation. (4) Report directly to the commander on the status of the incapacitation of RC personnel actions in their command. Make recommendations to enhance the incapacitation system. (5) Provide uniformity and consistency in the administration of incapacitation pay worldwide. (6) Ensure continuity and unanimity of effort among medical personnel, Finance and Accounting Office, commanders, installations, U.S. Army Physical Disability Agency, and Soldiers. (7) Investigate and take appropriate action on requests from Soldiers who believe they have been improperly denied due process. (8) Make determinations concerning a Soldier's loss of nonmilitary income. (9) Determine if termination of entitlement to incapacitation pay and allowances is warranted. A formal review by the incapacitation review board is required to determine the facts and circumstances of each individual case involving missed medical appointments or disregarded doctor's orders not to perform military duties or attend training. g. Incapacitation review boards are required to meet a minimum of once a quarter as long as a case is open. h. The board will provide a report each month in writing directly to the commander, advising of the status of the incapacitation cases within the command. i. The board will direct termination of incapacitation pay when review of a case leads to a determination that incapacitation pay is not authorized and will not forward further request for approval of extension of incapacitation pay. j. Incapacitation pay will terminate when: (1) The Soldier is qualified to return to military duty. (2) The Soldier's condition cannot be improved with further treatment and the case has been processed and finalized through the Disability Evaluation System. 2. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record. It provides in paragraph 2-9 (Burden of proof) that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant is requesting correction of his records by removing all references to AWOL so that he can be paid incapacitation pay for the periods for which he was previously denied due to unauthorized absences. 2. The evidence of record shows he received an approved LOD determination for an injury that occurred during Operation Iraqi Freedom. He was approved to receive incapacitation pay and he received incapacitation pay from July 2010 until he was permanently retired due to physical disability in June 2014. 3. The evidence also shows he accrued a number of unauthorized absences. He contends his chain of command's decision to charge him with these absences is unwarranted; however, he failed to provide evidence that supports his contention. 4. The applicant provided medical documents that show he has been undergoing medical treatment since 2010; however, the fact that he has been suffering from medical conditions that prevented the performance of his duties is not in doubt. The issue is that the AZARNG and NGB determined he was not entitled to incapacitation pay for the periods in question primarily based on his failure to adhere to the requirements of the program by failing to provide the required documentation. 5. He was provided a copy of the NGB's advisory opinion which outlines their reasons for the denial of incapacitation pay for the periods in question. He did not rebut the advisory opinion. In the absence of evidence to the contrary, it must be presumed that the decisions made by the AZARNG and NGB were correct and in accordance with law and regulation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008025 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008025 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2