IN THE CASE OF: BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20150012985 BOARD VOTE: ___x______ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20150012985 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for 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 November 2014 through 31 May 2015 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. IN THE CASE OF: BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20150012985 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 November 2014 through 31 May 2015. 2. The applicant states he was undergoing a medical board evaluation and receiving INCAP pay. The Blanchfield Army Hospital at Fort Campbell, KY did not want to sign his DA Forms 7574-1 (Military Physician's Statement of Soldier's Incapacitation/Fitness for Duty). This continued until March/April 2015 so the paperwork was sent to the 81st Regional Support Command (RSC), Fort Jackson, SC. The doctor at the 81st RSC signed his paperwork for INCAP pay. The 81st RSC could not finish his last INCAP pay because by the time the paperwork was signed by his company commander, he was retired. His retirement date is 9 June 2015 and he did not receive his retirement orders until 18 June 2015. The 81st RSC sent him an e-mail stating that since he was retired, he has to send his packet to the Army Review Boards Agency (ARBA). 3. The applicant provides: * Memorandum, Subject: Request to Exceed the 180 Days Statutory Limit for Incapacitation Pay, dated 18 May 2015 * Department of Veterans Affairs (VA) Payment History, dated from November 2014 to May 2015 * seven DA Forms 7574 (INCAP Pay Monthly Claim Form), dated 26 May 2015 * three DA Forms 7574-1, dated 7 July 2015 * Receipt for First Class Mail, dated 15 July 2015 * 21 pages of various medical records, which include progress notes, consult requests, and a radiology report * 16 pages of email correspondence * Order Number D 125-12, dated 5 May 2015 CONSIDERATION OF EVIDENCE: 1. After having prior service in the Regular Army and the Kentucky Army National Guard, the applicant enlisted in the U.S. Army Reserve on 28 April 2003. 2. The applicant provided three DA Forms 7574-1, showing he was unfit to perform his military and civilian duties from 1 November 2014 to 31 January 2015, 1 February 2015 to 30 April 2015, and 1 May 2015 to 31 May 2015. 3. The applicant provided seven DA Forms 7574, showing he filed claims for INCAP pay for the months of November 2014 through May 2015. 4. On 13 April 2015, an informal Physical Evaluation Board (PEB) found the applicant physically unfit. The PEB recommended the applicant be permanently retired with a disability rating of 70 percent. 5. The applicant's service record contains Orders D 125-12 issued by the U.S. Army Physical Disability Agency on 5 May 2015, which show he was released from assignment and duty based on a permanent physical disability and placed on the retired list on 9 June 2015. 6. The applicant provided a memorandum, dated 18 May 2015, from the commanding officer, Headquarters, 304th Military Police Company, Nashville, TN, requesting an extension for the applicant to receive INCAP pay beyond the 6-month statutory limitation (Title 37, U.S. Code 204(i)(2)). The commander listed the applicant's history of INCAP pay from 22 May 2010 through 31 October 2014 and recommended the applicant receive INCAP pay for 1 November 2014 through April 2015. 7. The applicant's service record does not include evidence that indicates he received INCAP pay for 1 November 2014 through April 2015. 8. On 5 May 2016, an advisory opinion was obtained from the Army Reserve (AR) G-1, Office of the Chief, AR, who opined that this office was unable to provide full administrative relief and recommended continued action by the Army Board for Correction of Military Records (ABCMR). The advisory official stated that their office reviewed TIER 1 INCAP pay application submitted for the periods 1 November 2014 through 31 May 2015. Their records indicate necessary unit and RSC Incapacitation Review Board (IRB) administrative actions were not completed prior to the applicant's separation date on 9 June 2015. The advisory official also stated the RSC IRB did not convene on this claim or provide a recommendation to the approval authority. INCAP claims exceeding two years are rerouted to DA G-1 for final determination. The applicant received INCAP pay for 22 May 2010 through 31 October 2014 claim periods. In addition, the advisory official stated that if the ABCMR grants full or partial relief on the applicant's application request INCAP pay, the AR G-1 may certify the appropriate documents and contact DA G-1 for the authorization to pay INCAP and return to ARBA for submission through Defense Finance and Accounting Services. A copy of the advisory opinion was forwarded to the applicant to provide comments. However, he did not respond within the allotted timeframe. 9. On 25 October 2016, the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, concurred with the AR G-1's recommendation and recommended approval of the applicant's request for INCAP pay for the claim period 1 November 2014 through 31 May 2015. The official stated that in accordance with Department of Defense Instructions 1241.01, there is no offset of INCAP if the applicant is receiving Department of Veterans Affairs' benefits. REFERENCES: 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 paragraph 1-6, that a member of an RC incurring or aggravating any injury, illness, or disease in the line of duty is entitled to medical and dental care, INCAP 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. DISCUSSION: 1. The evidence of record shows the applicant filed claims for INCAP pay for November 2014 through May 2015. 2. Orders D 125-12 published on 5 May 2015 show the applicant was released from assignment and duty based on a permanent physical disability and placed on the retired list on 9 June 2015. 3. The available evidence shows the applicant met the eligibility criteria for receipt of INCAP pay for the period requested, as evidenced by the advisory opinions and the additional evidence provided by the applicant. The evidence shows he made a timely request for INCAP pay but was penalized by a delay in processing. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012985 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012985 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2