BOARD DATE: 10 December 2015 DOCKET NUMBER: AR20150001284 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 incapacitation (INCAP) pay for the period 1 December 2013 through 30 May 2014. In addition, he requests correction of his records to show an unspecified retirement/expiration term of service (ETS) award that was issued by his unit. 2. The applicant states, in effect: a. His unit failed to process his last six months of INCAP pay before he retired and he is owed that pay. b. His DA Forms 7574 (INCAP Pay Monthly Claim Form) and DA Forms 7574-1 (Military Physician's Statement of Soldier's INCAP/Fitness for Duty) for the period of 1 December 2013 through 30 May 2014 were submitted before his retirement date. The U.S. Army Reserve Command (USARC) requested a 180-day Commander's extension letter from his unit, which was not submitted. c. He has not received his retirement/ETS award from his unit. 3. The applicant provides: * Letter, dated 22 May 2014, from Headquarters, USARC, Fort Bragg, NC * Defense Finance and Accounting Service (DFAS) Military Leave and Earnings Statement (LES), dated 28 May 2014 * three DA Forms 7574-1 * Email * six DA Forms 7574 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army (RA) on 6 June 1989 and was honorably released from active duty (REFRAD) on 3 September 1992. On the following day, he was transferred to the USAR Control Group (Reinforcement) to complete his Reserve obligation. 2. The applicant enlisted in the RA again on 29 March 1994 and was REFRAD on 28 March 1997. On the following day, he was transferred to a Reserve unit. He continued to serve in the Reserve component and completed active duty service to include a deployment to Kuwait/Iraq from 14 March 2006 to 25 March 2007. 3. On 22 April 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 100 percent. 4. The applicant's service record contains Orders D 115-05 issued by the U.S. Army Physical Disability Agency on 25 April 2014, which show he was released from assignment and duty based on a permanent physical disability and placed on the retired list on 30 May 2014. 5. The applicant's military documents in the interactive Personnel Electronic Records Management System contained a memorandum, dated 2 May 2014 awarding him the Armed Forces Reserve Medal for 10 years of qualifying service ending on 7 May 2014. His records are void of orders indicating he was awarded an additional end of tour or retirement award from his unit. 6. The applicant provided the following documents: a. An LES, dated 28 May 2014, showing he received INCAP pay from 1 to 24 June 2013, June 2013, July 2013, August 2013, September 2013, October 2013, and November 2013. b. Three DA Forms 7574-1, showing he was unfit to perform his military and civilian duties from 28 November 2013 to 25 January 2014, 26 January to 25 April 2014, and 26 April to 30 May 2014. c. Six DA Forms 7574, showing he filed claims for INCAP pay for the months of December 2013, January 2014, February 2014, March 2014, April 2014, and May 2014. 7. The applicant's service record is void of evidence showing he received INCAP pay for the period 1 December 2013 through 30 May 2014. 8. In the processing of this case, an advisory opinion was obtained on 21 June 2015 from an official at the Compensation and Entitlements Division, Office of the Deputy Chief of Staff G-1. The advisory official stated the applicant's request to receive INCAP pay from 1 December 2013 through 30 May 2014 with full pay and allowances should be approved. The advisory official stated he reviewed the applicant's monthly INCAP pay claim forms. Each of the claim forms were filed correctly and submitted on time as a member of the USAR. The applicant retired from the USAR on 30 May 2014; unfortunately, he was unable to receive his INCAP pay for the periods listed above. A copy of the advisory opinion was forwarded to the applicant to provide comments. However, he did not respond within the allotted timeframe. 9. Army Regulation 135-381 (INCAP 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 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), section 204 and 206. 10. Title 10 USC, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion. Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration. Based upon such review, the Secretary shall determine the merits of approving the award. 11. The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to: Commander, U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122. The unit must be clearly identified, along with the period of assignment and the recommended award. A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638. Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents. Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request. The burden and costs for researching and assembling supporting documentation rest with the applicant. DISCUSSION AND CONCLUSIONS: 1. The applicant’s request for INCAP for 1 December 2013 through 30 May 2014 was carefully considered. 2. The evidence of record shows the applicant filed claims for INCAP pay for December 2013 through May 2014. 3. Orders D 115-05 published on 25 April 2014 show the applicant was processed for discharge by reason of permanent physical disability on 30 May 2014. 4. The available evidence shows the applicant met the eligibility criteria for receipt of incapacitation pay for the period requested, as evidenced by the Office of the Deputy Chief of Staff G-1 advisory opinion and the additional evidence provided by the applicant. The evidence shows he made a timely request for INCAP pay and he should not be penalized for the delay in processing. 5. The applicant's request for correction of his records to show an unspecified retirement/ETS award is acknowledged. The evidence of record shows the applicant was awarded the Armed Forces Reserve Medal for ten years of qualifying service ending on 7 May 2014. However, there is insufficient evidence which indicates he received an end of tour award from his unit. 6. This does not preclude the applicant's right to pursue a retirement/ETS award claim by submitting a request through his Member of Congress under the provisions of Title 10 USC 1130. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___x_____ ___x_____ __x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that 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 December 2013 through 30 May 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. 2. The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to a retirement/ETS award. _______ _ 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) AR20150001284 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150001284 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1