Docket No: 7216-20
Ref:   Signature Date

From:  Chairman, Board for Correction of Naval Records 
To:    Secretary of the Navy 
 
Subj:   REVIEW OF NAVAL RECORD ICO ,   XXX XX USN RET 
 
Ref:   (a) Title 10 U.S.C. 1552 
 
Encl:  (1) DD Form 149  
       (2) Commander, Navy Personnel Command letter 5400 Ser 95/686 of 17 December 2020 
 
1.  Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected to establish Petitioner’s eligibility for payment of incapacitation pay.    
                                              
2.  The Board, consisting of  , reviewed Petitioner’s allegations of error and injustice on 7 January 2021 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record.  Documentary material considered by the Board consisted of the enclosures, relevant portions of naval records, and applicable statutes, regulations and policies.   
 
3.  The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows: 
 
     a.  Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. 
 
     b.  Petitioner enlists in the Navy Reserve in January 1996.  After serving a period of active duty as a Sonar Technician from 1996-2000, Petitioner commenced another period of active duty from 2003-2010 as an Explosives Ordnance Disposal technician.  During that period of active duty, he served a combat deployment to Iraq in 2008 that eventually resulted in a Post-Traumatic Stress Disorder (PTSD) diagnosis and placement on the Temporary Disability Retirement List (TDRL) on 16 June 2020 due to his condition. 
 
     c.  Prior to Petitioner’s placement on the TDRL, he was approved for Line of Duty (LOD) Healthcare Benefits on 26 September 2019.  The approval covered a period from 22 September 2016 through 26 September 2020.  Based on his approved LOD request, Petitioner filed a request for incapacitation pay from February 2019 through October 2019.  However, Petitioner’s request was not processed by his command prior to his placement on the TDRL.  As a result, Petitioner’s request was not eligible for consideration by Commander, Navy Personnel Command. 
 
     d.  In correspondence attached at enclosure (2), the office having cognizance over Petitioner’s request to receive incapacitation pay determined that the evidence supports relief.  Petitioner provided evidence that his civilian pay was diminished due to his PTSD but that he received some relief from disability insurance payments.  Commander, Navy Personnel Command commented that, if approved by the Board, PERS-95 would review and process the difference between the member’s disability payments and his regular salary for the approved period. 
                                     
CONCLUSION 
 
Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting relief.  Specifically, the Board determined that the preponderance of the evidence supports payment of incapacitation pay from February 2019 through 16 June 2020.  Petitioner provided evidence that shows he was unable to work in his civilian employment from February 2019 due to his service incurred disability condition and became unemployed in the months that followed his incapacitation. 
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action. 
 
Petitioner is approved for incapacitation pay from 1 February 2019 through 16 June 2020.  Payment amount will be determined by Commander, Navy Personnel Command according the applicable guidelines.  Petitioner will be afforded an opportunity to submit evidence to support the proper amount of incapacitation pay from February 2019 through 16 June 2020 prior to a final determination of payment by Commander, Navy Personnel Command.  In addition, Petitioner will be afforded all due process rights associated with the adjudication of the amount of incapacitation pay including appellate rights to the Office of the Navy Judge Advocate General.   
 
4.  It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter. 
 
5.  Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulation, Section 723.6(e)) and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.