IN THE CASE OF: BOARD DATE: 9 March 2010 DOCKET NUMBER: AR20090008104 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 reconsideration of his request to be paid incapacitation (INCAP) pay during the period of 1 October 2002 to 10 November 2004. 2. The applicant states that he was unable to provide documentation due to his lack of funds which precluded him from seeing a physician and he could not afford to travel to military doctors and he had no insurance. He goes on to state that he was unable to obtain the necessary documentation until 6 months after the Board denied his initial request and he has tried every avenue to resolve his issues. 3. The applicant provides a Table of Contents of documents submitted that are tabbed A through I. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070007898 on 8 April 2008. 2. In the previous consideration of his case, the Board denied his request because he had failed to provide sufficient documentation to establish his entitlement to INCAP pay and advised him that he could re-apply to the Board for reconsideration if he provided the necessary documentation. 3. In the processing of this case, a staff advisory opinion was obtained from Headquarters, United States Army Reserve Command (USARC) at Fort McPherson, Georgia which indicates, in pertinent part, that the applicant received INCAP pay from 1 April 2002 through 30 September 2002. 4. He filed a follow-up claim for INCAP pay from 1 October 2002 through 30 March 2004 and his request was denied due to lack of sufficient documentation. The applicant’s command requested that he provide the necessary documentation and for over 2 years, no action was taken. 5. The applicant was referred to a Physical Evaluation Board (PEB) on 24 May 2004 and the board process was completed on 16 September 2004. He was found unfit for retention and was discharged by reason of disability with severance pay on 4 November 2004. Officials at USARC recommend that he be authorized INCAP pay during the period of 1 October 2002 to 3 November 2004. The advisory opinion was provided to the applicant for comment. To date, no response has been received by the staff of the Board. 6. Information provided by USARC indicates that due to his injury, the applicant was unable to resume working in his civilian occupation and had no income. Accordingly, he was forced to file for bankruptcy and live with friends. Because he had no income he was also without health coverage and no one in his chain of command informed him that he was entitled to health care through the Military Medical Support Office, where he could have obtained the documentation he needed to support his claim for INCAP pay. 7. Army Regulation 135-381 provides policies regarding incapacitation pay for Soldiers of the Army National Guard and the USAR. It provides, in pertinent part, that INCAP pay and allowances after release from active duty for training may be authorized for Reserve Component Soldiers for a period of up to 6 months. The Secretary of the Army or an authorized representative may extend the 6-month period in the interest of fairness and equity; however, only the most meritorious requests will be approved. Soldiers are not entitled to receive both Department of Veterans Affairs (VA) disability compensation and INCAP pay for the same disabling condition. If the approving authority permits INCAP pay for the same period and disabling condition, the Soldier must waive the VA disability compensation to receive military pay and allowances. It also provides that members authorized INCAP pay will not be allowed to attend inactive duty training (IDT) periods or to acquire retirement points for drills. DISCUSSION AND CONCLUSIONS: 1. It is readily apparent that the applicant was injured in the line of duty and was authorized INCAP pay for 6 months for the period of April through September 2002 and that the applicant continued to be incapacitated up until he was discharged by reason of disability with severance pay benefits on 4 November 2004. 2. Accordingly, based on the information obtained by USARC, it appears that the applicant’s case was one of those that would have been deemed exceptionally meritorious as to warrant an extension of INCAP pay had he been properly advised at the time by his chain of command. 3. However, it appears that the applicant did not receive the guidance/assistance he needed at the time and his requests for INCAP pay were denied. 4. Accordingly, it would be in the interest of justice at this time to pay him the INCAP pay he deserved for the period of 1 October 2002 to 4 November 2004, the day before he was honorably discharged by reason of disability with severance pay. BOARD VOTE: ____X___ ____X___ ___X____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20070007898, dated 8 April 2008. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was authorized INCAP pay entitlements for the period of 1 October 2002 through 3 November 2004 and by paying to him those entitlements due as a result of this correction. 2. The Board wants the applicant and all others to know that the sacrifices he made in service to the United States are deeply appreciated. The applicant and all Americans should be justifiably proud of his service in arms. _______ _ _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) AR20090008104 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090008104 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1