BOARD DATE: 11 July 2017 DOCKET NUMBER: AR20160001814 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: 11 July 2017 DOCKET NUMBER: AR20160001814 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 claim for incapacitation pay from 10 June 2015 through 7 September 2015 was submitted, processed, and approved in a timely manner and b. paying the applicant all due incapacitation pay 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. BOARD DATE: 11 July 2017 DOCKET NUMBER: AR20160001814 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, in effect, correction of his records to authorize payment of incapacitation pay from June 2015 through September 2015. 2. The applicant states, in effect, he should be approved to receive incapacitation pay from his initial injury date of 10 June 2015. 3. The applicant provides: * DA Forms 7574 (Incapacitation Pay Monthly Claim Form) for the months of June, July, and August 2015 * DA Form 7574-1 (Military Physician's Statement of Soldier's Incapacitation/Fitness for Duty), dated 16 September 2015 * memorandum from Commander, Mental Health Department, U.S. Naval Hospital, Guam, to Commander, Guam Army National Guard (GUARNG), dated 21 September 2015 * letter from Transportation Security Administration (TSA), subject: Family Medical Leave Act (FMLA) to applicant, dated 10 June 2015 * 11 medical documents from the Department of Veterans Affairs (VA) Guam VET Center, dated during July 2015 * memorandum from National Guard Bureau (NGB) for Joint Forces Headquarters, Guam, subject: Line of Duty Determination (Applicant), dated 30 July 2015 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 27 July 2015 * letter from the VA Guam VET Center to GUARNG, dated 31 August 2015 * DA Form 3349 (Physical Profile), dated 22 July 2015 * memorandum from GUARNG to NGB, subject: INCAPACITATION Review Board Meeting Minutes, dated 15 October 2015 with axillary documents * excerpt from Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers) * three-page self-authored typed document titled "Incap Pay Sequence of Events" * letter from the applicant's attorney to the Mental Health Department, U.S. Naval Hospital, GU, dated 22 October 2015 CONSIDERATION OF EVIDENCE: 1. After prior service in the U.S. Marine Corps, the applicant enlisted in the GUARNG on 7 July 1995 and held military occupational specialty 11B (Infantryman). He served through multiple reenlistments with his troop program units, including periods of active duty service, and attained the rank/grade of master sergeant/E-8. 2. His DA Form 4037 (Enlisted Record Brief) shows he deployed with his unit in support of Operation Enduring Freedom on two occasions: * 29 June 2009 through 22 March 2010 * 15 April 2013 through 31 December 2013 3. Orders A-11-505529 issued by Headquarters, U.S. Medical Command, Fort Sam Houston, TX, dated 25 November 2015, ordered him to active duty to participate in Reserve Component medical hold transfer for completion of medical care and treatment with assignment to the Warrior Transition Unit (WTU) at Tripler Army General Hospital, HI, with a reporting date of 15 December 2015. 4. On 6 September 2016, an informal physical evaluation board (PEB) determined he was unfit for continued military service with diagnoses of post-traumatic stress disorder (PTSD) and coronary artery disease. The PEB recommended a disability rating of 70 percent and his placement on the Temporary Disability Retired List (TDRL) with reexamination during June 2017. On 16 September 2016, the applicant concurred and waived his right to a formal hearing. 5. The applicant was honorably retired in the rank of master sergeant on 22 October 2016. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated by reason of disability, temporary (enhanced) under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4. 6. Orders 066-01 issued by Joint Force Headquarters-Guam and GUARNG on 7 March 2017 honorably discharged him from the ARNG effective 23 November 2016. 7. The applicant provided: a. The DA Forms 7574 for the months of June, July, and August 2015 in order to receive incapacitation pay for which his civilian employer verified he was unable to work. These documents do not contain a unit commander's verification or the approval authority review/approval. b. A DA Form 7574-1, dated 16 September 2016, from his military physician at the U.S. Naval Hospital indicates he is unfit to perform military duties from 16 September 2016 through 16 December 2016. c. A memorandum from Commander, Mental Health Department, U.S. Naval Hospital, Guam, to Commander, GUARNG, dated 21 September 2015, identifies the applicant as receiving a psychological evaluation from his 2013-2014 Operation Enduring Freedom deployment. He was diagnosed with combat-related PTSD. It states he needs residential treatment that is not available on Guam and is on leave from his TSA job via FMLA due to his difficulty in concentrating. He was determined to not be currently fit for duty. d. A letter from his civilian employer, the TSA, dated 10 June 2015, informing him of the requirements and his desire for FMLA. e. Eleven medical documents from the VA Guam VET Center with various dates during the month of July 2015, diagnosing the applicant with PTSD as a result of his combat deployments. It further recommended his referral to a more intensive program that was not available on Guam, such as a WTU. f. A memorandum from NGB for Joint Forces Headquarters-Guam, subject: Line of Duty Determination (Applicant), dated 30 July 2015, approving the applicant's line-of-duty determination as a result of PTSD due to multiple deployments. It was accompanied by a DA Form 2173, dated 27 July 2015. g. A letter from the VA Guam VET Center to the GUARNG, dated 31 August 2015, confirming the applicant was being treated for PTSD and that he met the requirements for incapacitation since 10 June 2015 which is related to his military duties. It also noted the TSA placed him on FMLA effective 10 June 2015. h. a DA Form 3349, dated 22 July 2015, assigning him a temporary physical profile rating for PTSD with an expiration date of 14 October 2015. i. A memorandum from the GUARNG to NGB, subject: Incapacitation Review Board Meeting Minutes, dated 15 October 2015, with axillary documents. This board determined the applicant's claims were found to be in the line of duty and recommended and approved his request for incapacitation pay for the period 16 September 2015 through 16 December 2015. j. An excerpt from Army Regulation 135-381 explaining the compensation policy. k. A three-page self-authored typed document titled "Incap Pay Sequence of Events" that shows his chronological sequence of incapacitation pay requests. l. A letter from the applicant's attorney to the Mental Health Department, U.S. Naval Hospital, GU, dated 22 October 2015, indicated the applicant's incapacitation pay date should be 10 June 2015. 8. In connection with the processing of this case, an advisory opinion was obtained on 8 June 2017 from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, wherein he stated: a. After careful review, G-1 recommends approval for Tier II incapacitation payments for the claim period 10 June 2015 through 7 September 2015. The G-1 decision is based on the enclosed employer's representative verification that the applicant was not able to work during the dates claimed. Moreover, the recommended payments are consistent with Tier II payments the applicant received for the claim period September through December 2015. b. As stated in the timeline provided and validated by Headquarters, NGB, in coordination with the GUARNG, the applicant performed military duty during each month of the claim period. Such training included active duty for training for the period 15-19 June 2015 for the purpose of attending a State award and education board. 9. A copy of the advisory opinion was forwarded to the applicant on 15 June 2017 for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. Department of Defense Directive 1241.01 states incapacitation 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. Incapacitation pay is the compensation Soldiers receive for their injuries considered in the line of duty that require further medical care. 2. Army Regulation 135-381 prescribes the policies and procedures for incapacitation pay. a. The objective of the Reserve Component Incapacitation System is to compensate members of the Reserve Component who are unable to perform military duties and/or who demonstrate a loss in civilian earned income as a result of an injury, illness, or disease incurred or aggravated in the line of duty. b. Incapacitation pay will be paid only during the period a member remains unfit for military duty or demonstrates a loss of earned income as a result of the incapacitation. c. The member's entitlement to healthcare and pay and allowances under this regulation will terminate on the date that the member is separated or retired. 3. Department of the Army Pamphlet 135-381 (Incapacitation of Reserve Component Soldiers Processing Procedures) states incapacitation pay 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 incapacitation 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 in-the-line-of-duty determination is necessary to demonstrate that the injury, illness, or disease incurred was military service connected. b. Soldiers who receive incapacitation pay may be entitled to full pay and allowances, incentive pay, special pay, and medical and dental care. Incapacitation pay cannot exceed full military pay and allowances. Soldiers who receive incapacitation pay are not entitled to accrue leave or retirement points. c. Other civilian earned income and VA benefits will also be subject to deduction from the Soldier's incapacitation 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. Incapacitation pay shall terminate whenever the Soldier is returned to military duties and/or civilian employment, the Soldier receives a determination of not in the line of duty, the Soldier is discharged from the service, upon retirement, or upon death. DISCUSSION: 1. The applicant contends his military records should be corrected to show his entitlement to incapacitation pay from 10 June 2015 through September 2015. 2. 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 his civilian employment at the time. Incapacitation pay is designed to compensate Soldiers for their injuries that are considered in the line of duty that require further medical care. 3. The evidence of record shows he was diagnosed for combat-related PTSD incurred in the line of duty as a result of multiple deployments. Due to the lack of available treatment facilities on the island of Guam, he was ordered to active duty to receive medical treatment at the WTU at Tripler Army Hospital. He subsequently was honorably retired as a result of a PEB with a 70-percent disability rating for combat-related PTSD. 4. After a careful review of the evidence and in coordination with NGB and the GUARNG, the Army G-1 determined the applicant met the eligibility criteria for receipt of incapacitation pay for the claim period 10 June 2015 through 7 September 2015 and recommended he receive the monies for that period. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001814 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001814 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2