BOARD DATE: 6 April 2017 DOCKET NUMBER: AR20150016367 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 BOARD DATE: 6 April 2017 DOCKET NUMBER: AR20150016367 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: * showing the applicant timely submitted a complete incapacitation pay packet to the U.S. Army Reserve G-1 claiming incapacitation pay from 1 March 2010 through 31 July 2013 * showing the U.S. Army Reserve timely received, accepted, and processed her request for incapacitation pay * paying her any monies she is due as a result of these corrections ___________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. BOARD DATE: 6 April 2017 DOCKET NUMBER: AR20150016367 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 payment of incapacitation pay from November 2010 to 5 March 2015. 2. The applicant states: a. She was told to submit her application to this Board. She is claiming incapacitation pay for the months covering Nov 2010 through 5 Mar 2015. All incapacitation pay submissions for this time period were completed as directed and submitted by her and ultimately processed through her immediate and next higher command (the 99th Regional Support Command (RSC)) prior to her retirement. These submissions were not processed for payment in a timely manner or as outlined in regulations by the requested commands. There were significant delays incurred by her unit (the 655th Regional Support Group (RSG)) and the 99th RSC Health Services Branch during the processing of her incapacitation pay submissions. The beginning of her second incapacitation pay period began in November 2010 when she had her second surgery for an in line of duty (ILOD) right rotator cuff injury and continued through two more surgeries. She was never informed during her first incapacitation pay period for the first surgery, October 2009 through March 2010 (which has already been paid) or during the first 3 months of the second incapacitation pay period beginning in November 2010 that she was entitled to incapacitation pay. After hearing about incapacitation pay from a colleague in another unit, her first inquiry to her unit regarding this pay was in February 2011. The first written communication via email from her to her unit was on 22 February 2011. b. From 22 February 2011 on, she was in constant contact with her unit. She has enclosed more than 200 pages of email (a small but still complete representation of the 500+ pages she has) between her and members of her unit, the 655 RSG (she lists several names of officers and noncommissioned officers). This list of names is most, but not all, of the people she worked with in her attempts to complete her second incapacitation pay period submissions and as directed, the requested related LODs. Regardless of her constant vigilance and diligence, she was often given incorrect information or there were significant time lapses in communication from the various people she dealt with. As a result the submissions were severely delayed. The emails validate her persistence and extreme efforts to complete the second incapacitation pay period submissions for the months covering November 2010 to March 2015. c. The next section is a condensed timeline (based on attached emails) which illustrates her attempts to submit the second period starting with her first inquiry into this pay, and continuing to her last March 2015 submission. She has included references to LOD completion for the first and second injuries requested from her during the submission process. She also included these to illustrate the same level of effort, persistence, and diligence she put into processing these LODs in a timely manner as she did into the incapacitation pay submissions themselves. This needs to be established since her unit insisted on the completed LODs in order to process her incapacitation pay submissions. She questioned the need for these subsequent LOD's based on regulations she read. The information was inaccurate and added more delay time to the final submission by the 655 RSG and 99 RSC. She has timelines for her injury, knowledge of this pay, inquiry, completion of LODs, and other inquiries. 3. The applicant provides: * Medical documents * Multiple emails * Incapacitation pay submission forms and supporting documents * DA Form 3349 (Physical Profile) * DD Form 261 (Report of Line of Duty and Misconduct Status) * Active duty orders * Department of Veterans Affairs documents * Physical Evaluation Board (PEB) findings * Other orders and documents * DD Form 214 (Certificate of Release or Discharge from Active Duty) CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Massachusetts Army National Guard (MAARNG) and executed an oath of office on 19 August 1985. 2. She completed the finance officer basic course, served in a variety of assignments and she attained the rank/grade of captain. She was honorably separated from the MAARNG (resigned) on 26 September 2001 and she was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). 3. In December 2005, she was transferred to a troop program unit (TPU) of the USAR and on 18 January 2006, she was promoted to major (MAJ). 4. She entered active duty on 6 May 2006 and served in Kuwait from 6 July 2006 to 26 June 2007. She was honorably released from active duty on 7 September 2009. 5. On 3 December 2014, an informal PEB convened and determined she was physically unfit to perform the duties required of her specialty and grade. The PEB rated her conditions at 40 percent for right shoulder degenerative disease, 20 percent for lumbar degenerative disc disease, 20 percent for dysthymic disorder, 10 percent for right foot metatarsophalangeal degenerative joint disease, and zero percent for left knee degenerative disc disease and hallux valgus of the left foot. 6. The PEB recommended a 70-percent combined disability rating and permanent retirement. She was counseled and elected not to concur but did not request reconsideration of her VA proposed rating. At the end, her PEB was approved. 7. On 30 January 2015, the U.S. Army Physical Disability Agency published order placing her on the retired list in her retired grade of MAJ by reason of disability at a combined rating of 70 percent, effective 6 March 2015. 8. He medical documents and incapacitation pay submission were forwarded to the Office of the Chief of Army Reserve (OCAR), USAR Command (USARC) G-1 for review. As a result USARC G-1 rendered an advisory opinion on 8 December 2016. The advisory official stated: a. The USARC G-1 is unable to provide full administrative relief and recommends continued ABCMR action. Per Headquarters, Office of the Deputy Chief of Staff, G-1 guidance, provided 7 October 2014, the Office of The Judge Advocate General (OTJAG) rendered a legal opinion regarding initiated incapacitation pay claims concerning retired or separated Reserve Component (RC) Service Members. Out-of-service processing of incapacitation pay payments for RC individuals that retired or separated prior to final incapacitation pay claim adjudication is not authorized and final action must be directed by ABCMR. b. The Tier I incapacitation pay application submitted for the claim periods 1 November 2010 through 5 March 2015, as supplied by ARBA, does not fully meet the criteria established by law for entitlement for the following reasons: * Applicant's request is based on an approved informal LOD determination for a right shoulder (rotator cuff) injury sustained during annual training on 12 May 2010. * Applicant was approved and paid a gross amount of $32,349.53 of Tier I incapacitation pay in August 2013 for requested claim periods 1 September 2009 through 28 February 2010 based on a formal LOD determination for a 2006 injury (right shoulder rotator cuff) c. Due to the fact that the applicant was unemployed throughout the duration of time she is requesting incapacitation pay, she does not meet the eligibility criteria for Tier 2 compensation. d. The applicant was paid for rescheduled duty periods performed on 4 and 11 November 2010 and is therefore ineligible for Tier 1 compensation for 1-30 November 2010. e. The applicant filed for Tier I incapacitation pay for periods 1 March 2010 through 31 July 2013. This claim was reviewed and recommended for approval by the 99th RSC Incapacitation Review Board (IRB) with reservations about her supporting medical documentation. There is no documented evidence to support why these claim periods were not approved or processed for pay by the appropriate approval authorities. These periods should be approved without any fault to the applicant as the G-1 finds no record to substantiate the incomplete action. f. The applicant is eligible for Tier I Incapacitation Pay for claim periods covering 1 December 2010 through 31 December 2012. Despite the 99th RSC IRB recommendation to approve the claim periods stated above, the applicant is not eligible to receive Tier I Incapacitation Pay for claim periods 1 March - 30 November 2010 due to paid performance of duty, and claim periods 1 January - 31 July 2013 due to insufficient medical documentation to support ILOD condition and/or completion of treatment plan (surgery and recovery period) for the ILD condition. g. The USARC G-1 acknowledges that the applicant did work with her unit and the 99th RSC to get any and all subsequent claim periods (1 August 2013 through 5 March 2015) leading up to her separation date uploaded for consideration of Incapacitation Pay. The USARC G-1 confirms these claim periods were not received for IRB review and consideration prior to her retirement. h. For requested claim periods 1 August 2013 through 5 March 2015, there is no clear evidence, within her medical supporting documentation of her inability to perform military duties as specifically related to her ILOD condition. On 29 August 2013, her medical provider's notes indicate a positive result from her 3 April 2012 surgery for her ILOD condition; detailing a January 2013 visit showed the rotator cuff repair was intact. As she did not return to duty, there is no evidence to support any further aggravation to her ILOD condition due to duty performance. Her provided medical records and DA 3349 (military profiles) did not detail specific functional impairments preventing her from satisfactorily performing military duties. Further, there is insufficient documentation to support why she did not return to duty specifically due to her ILOD condition. i. Medical documents must support and validate functionality/restrictions for ILOD conditions and provide a medical treatment plan from the attending provider or specialist detailing the diagnosis and prognosis and clearly define the period of time required to convalesce, recover, and/or recuperate from the ILOD condition. The provided medical documentation indicate her last surgery for her ILOD condition was completed on 3 April 2012. No further military authorization for surgical repair was made for the ILOD condition following this procedure. Medical notes from her orthopedic provider continued to detail recommended procedures, not authorized for the ILOD condition; potential additional injuries to the right shoulder that presented after her ILOD treatment period and could not have occurred ILOD, and other injuries that were not ILOD. She did not start the medical evaluation board process until the late 2013 timeframe, more than three years after the initial ILOD condition date of injury. j. The applicant was placed on the permanently disabled retired list on 6 March 2015 with a disability rating of 70 percent. As related to her request for incapacitation pay, the related ILOD condition as indicated in the paragraph above was only one of six disabilities listed in making the final disposition by the PEB. Justification for her inability to perform military duties may or may not have been attributed to the other five disabilities in which she was also determined to be unfit. The USARC G-1 does not have sufficient documentation to further justify her claim beyond the ILOD condition. k. In the interim, their office has requested the appropriate supportive documentation from the applicant in order to validate and certify any claim to Tier I compensation for demonstrated loss of earned income during these periods. l. If the Board grants full or partial relief on her application request for Incapacitation Pay, the USARC G-1 will review, approve, and certify the appropriate documents and contact DA G-1 for the authorization to pay Incapacitation Pay memorandum. All signed and certified documents will be returned to ARBA for submission through Defense Finance and Accounting Services. 9. The applicant was provided with a copy of this advisory opinion on 27 December 2016. She responded on 24 January 2017 with a copy of an envelope showing she had been out of town. REFERENCES: 1. DOD Directive 1241.01 states Incapacitation (INCAP) is a physical disability due to injury, illness, or disease that prevents the performance of military duties, or which prevents the Soldier from returning to the civilian occupation in which the Soldier was employed at the time of the injury, illness, or disease. INCAP pay is the compensation Soldiers receive for their injuries considered in line of duty that require further medical care. 2. Department of the Army Pamphlet 135-381 states INCAP is separated into two tiers: Tier I – Full Military Pay and Allowances: for Soldiers who are unfit to perform military duties as a result of an injury, illness, or disease caused by military service and Tier II – Lost Civilian Wages for Soldiers who are fit to perform their military duties by a military medical physician, but are unable to perform their civilian job and can demonstrate a loss of civilian earned income. a. In order to qualify for INCAP pay, the Soldier’s injury, illness, or disease must have occurred or been aggravated during a period of active duty and/or inactive duty of more than 30 days (or less than 30 days). Also, an ILOD determination is necessary to demonstrate that the injury, illness, or disease incurred was military service connected. b. Soldiers who receive INCAP pay may be entitled to full pay and allowances, incentive pay, special pay, and medical and dental care. INCAP pay cannot exceed full military pay and allowances. Soldiers who receive INCAP pay are not entitled to accrue leave or retirement points. c. Other civilian earned income and Department of Veterans Affairs (VA) benefits will also be subject to deduction from the Soldier’s INCAP pay. This includes normal wages, salaries, professional fees, tips, or other compensation for personal services actually rendered, as well as income from income protection plans, vacation pays, and sick leave that the Soldier elects to receive. d. INCAP pay shall terminate whenever the Soldier is returned to military duties and/or civilian employment, the Soldier receives a determination of not in LOD, the Soldier is discharged from the service, upon retirement or becomes deceased. DISCUSSION: 1. The applicant sustained a physical disability due to injury or illness that prevented the performance of his military duties and/or prevented him from returning to the civilian employment at the time. Incapacitation pay is designed to compensate Soldiers for their injuries that are considered ILOD that require further medical care. 2. In order to receive incapacitation pay, a Soldier must submit the necessary documentary evidence to their servicing HR/Finance office. The applicant in this case did so. However, for unknown reasons, the applicant did not submit her request through USAR channels. After a careful review and in coordination with the USAR, the USARC G-1 determined she was eligible for incapacitation pay as follows: a. Tier I Incapacitation Pay for claim periods 1 November 2010 to 5 March 2015 does not fully meet the criteria established by law for entitlement because the applicant's request is based on an approved informal LOD determination for a right shoulder (rotator cuff) injury sustained during annual training on 12 May 2010. She was approved and paid a gross amount of $32,349.53 of Tier I Incapacitation Pay in August 2013 for requested claim periods 1 September 2009 through 28 February 2010 based on a formal LOD determination for a 2006 injury (right shoulder rotator cuff). Because the applicant was unemployed throughout the duration of time she is requesting incapacitation pay, she does not meet the eligibility criteria for Tier 2 compensation. b. She was paid for rescheduled duty periods performed on 4 and 11 November 2010 and is ineligible for Tier 1 compensation for 1-30 November 2010. c. She filed for Tier I pay for 1 March 2010 through 31 July 2013. This claim was reviewed and recommended for approval by the 99th RSC Incapacitation Review Board (IRB) with reservations about her supporting medical documentation. There is no documented evidence to support why these claim periods were not approved or processed for pay by the appropriate approval authorities. These periods should be approved without any fault to the applicant as the G-1 finds no record to substantiate the incomplete action. d. She is eligible for Tier I incapacitation pay for claim periods covering 1 December 2010 through 31 December 2012. Despite the 99th RSC IRB recommendation to approve the claim periods stated above, the applicant is not eligible to receive Tier I incapacitation pay for 1 March - 30 November 2010 due to paid performance of duty and 1 January - 31 July 2013 due to insufficient medical documentation to support an ILOD condition and/or completion of treatment plan (surgery and recovery period) for the ILOD condition. e. For periods 1 August 2013 through 5 March 2015, the USARC G-1 found no clear evidence within her medical supporting documentation of her inability to perform military duties as specifically related to her ILOD condition. On 29 August 2013, her medical provider's notes indicate a positive result from her 3 April 2012 surgery for her ILD condition and show a January 2013 visit showed the rotator cuff repair was intact. As she did not return to duty, there is no evidence to support any further aggravation to her ILOD condition due to duty performance. Her provided medical records and her physical profiles did not detail specific functional impairments preventing her from satisfactorily performing military duties. Further, there is insufficient documentation to support why she did not return to duty specifically due to her ILOD condition. 3. In summary, the advisory official recommends, in effect, correction of the applicant's record to show she timely submitted a complete incapacitation pay packet to the U.S. Army Reserve G-1 claiming incapacitation pay from 1 March 2010 through 31 July 2013. Upon review and approval, the record may be returned to the Army Review Boards Agency to be forwarded to the Defense Finance and Accounting Service to make payment. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016367 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016367 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2