SAMR-RB 13 November 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20160002344 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 3 October 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant partial relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by showing he is entitled to Tier 1 Incapacitation Pay for the period 26 June 2015 through 15 October 2015 and paying him any monies he is due as a result of this correction. I direct no further correction be made to the record of the individual concerned. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 13 March 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: dUi · · Encl Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 3 October 2017 DOCKET NUMBER: AR20160002344 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 3 October 2017 DOCKET NUMBER: AR20160002344 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ______________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: 3 October 2017 DOCKET NUMBER: AR20160002344 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 correction of his records to show he was authorized payment of incapacitation (INCAP) pay from 1 April 2015 to 15 October 2015. 2. The applicant states the INCAP Board approved his request for INCAP pay. He submitted a request to exceed 180 days of INCAP pay; however, the company commander did not sign the request until after the effective date of his retirement (i.e., 16 October 2015) and after he had been dropped from the military payroll. As a result, he has not been paid INCAP pay. 3. The applicant provides a copy of his INCAP claim with supporting documents and command endorsements. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) on 15 December 1983. He served in the Regular Army, Army National Guard (ARNG) of the United States (ARNGUS), Georgia ARNG, Alabama ARNG, and the USAR. * He held military occupational specialty 12C (Bridge Crewmember) * He was promoted to sergeant first class (E-7) on 5 December 2008 2. On 15 April 2009, he was ordered to active duty in support of Operation Iraqi Freedom. He served in Kuwait from 24 March 2010 to 24 February 2011. a. Upon redeployment, he was assigned to the 310th Engineer Company (Multi-Role Bridge), Fort A.P. Hill, VA. b. On 9 March 2011, he sustained an acute upper and lower back injury when he was moving heavy equipment. c. He was assigned to Company A, Warrior Transition Unit, Fort Eustis, VA. d. On 1 July 2012, he was honorably released from active duty and transferred to an Alabama ARNG unit. e. On 27 October 2012, he transferred to the USAR Control Group (Reinforcement). 3. A review of the applicant's military personnel records failed to reveal a copy of his Physical Evaluation Board (PEB) proceedings. 4. U.S. Army Physical Disability Agency, Arlington, VA, Order D 254-60, dated 11 September 2015, released the applicant from duty because of physical disability incurred while entitled to basic pay and placed him on the retired list, effective 16 October 2015, based on permanent physical disability (30 percent). The orders show he was credited with 18 years, 3 months, and 7 days for disability retirement and 31 years, 10 months, and 2 days for basic pay purposes. 5. In support of his application the applicant provides the following documents: a. Seven (7) DA Forms 7574 (INCAP Pay Monthly Claim Forms), all dated 15 September 2015, for monthly claims covering the period from 1 April 2015 through 15 October 2015 based on an In Line of Duty (ILD) injury the applicant sustained on 9 March 2011. They show he received non-military pay and VA disability compensation during the seven (monthly) claim periods. They also show the applicant was not covered by an employee Income Protection Plan. The commander certified that he reviewed the (attached) approved line of duty investigation [not attached] and the Chief, Health Services Branch, 99th Regional Support Command (RSC), approved all seven claims on 16 November 2015. (1) Three DA Forms 7574-1 (Military Physician's Statements of Soldier's INCAP/Fitness for Duty), two dated 29 September 2015 and one dated 17 October 2015, that show the physician verified the applicant: * was not fit to perform military duties from 1 April 2015 to 30 June 2015, but he was fit to perform civilian duties * was not fit to perform military duties from 1 July 2015 to 30 September 2015, but he was fit to perform civilian duties * was not fit to perform military duties from 1 October 2015 to 15 October 2015, but he was fit to perform civilian duties (2) A DA Form 7574-2 (Soldier's Acknowledgement of INCAP Pay Counseling), dated 10 May 2013, that shows the applicant was counseled on his responsibilities concerning the INCAP pay claims process, including the accuracy of the information provided. (3) VA letter, dated 27 April 2015, that shows, in pertinent part, the applicant was granted service connected compensation in the amount of $587.36, effective 1 December 2014. (4) Spring Creek letter (undated) that shows the Director of Restaurant Operations verified the applicant was employed as a manager at the Tavern on the Green restaurant. (5) Fifteen (15) Earnings Statements covering the period 30 March 2015 through 25 October 2015 that show details of the applicant's non-military pay during the period under review. b. Headquarters, 310th Engineer Company (Multi-Role Bridge), Fort A.P. Hill, VA, memorandum, dated 2 November 2015, subject: Request to Exceed the 180-days Statutory Limit on Receipt of INCAP (pertaining to the applicant) for the period 1 April 2015–15 October 2015, that shows the company commander recommended approval of the INCAP pay action. c. Headquarters, 99th RSC, INCAP Review Board Minutes, dated 12 November 2015, that show the show the board recommended approval of the applicant's INCAP pay claims for the period 1 April 2015–15 October 2015. d. Headquarters, 99th RSC, Joint Base McGuire-Dix-Lakehurst, NJ, memorandum, dated 12 November 2015, subject: Request to Exceed the 180-days Statutory Limit on Receipt of INCAP (pertaining to the applicant) for the period 1 April 2015–15 October 2015. It shows the Director, Human Resources, recommended approval of the INCAP pay action to the Commander, U.S. Army Reserve Command (USARC), Fort Bragg, NC. 6. In the processing of this case, an advisory opinion was obtained from the USARC G-1, Office of the Chief of Army Reserve (OCAR), Washington, DC, dated 21 April 2017. a. The USARC G-1 stated that the applicant's request exceeds the 6-month statutory limitation for compensation and partially meets the criteria established by law for entitlement to INCAP. b. The advisory official confirmed the applicant received 29 months of Tier 1 INCAP pay for claim periods from 26 November 2012 through 31 March 2015 in a gross amount of approximately $145,000. c. The Tier 1 INCAP Pay application submitted for claims for the period 1 April 2015 through 25 June 2015 does not meet criteria for entitlement due to: (1) There is insufficient medical documentation to support his claim. Specifically, there is no detailed medical treatment plan providing clear prognosis, diagnosis, physical limitations, and appropriate time required to recover, recuperate, and/or rehabilitate from the ILD condition. (2) Soldiers performing military duty are not eligible for Tier 1 INCAP pay. The applicant performed military duties during previous approved claim periods from January through June 2013 and October 2014. These payments were later recouped in order to process and pay the Tier 1 INCAP pay actions. (The USARC G-1 noted that return to duty, without re-aggravation of the ILD condition, also terminates eligibility to INCAP pay.) d. The applicant is ineligible for Tier 2 compensation. Following an ILD surgical procedure in December 2013, the applicant returned to his non-military employment in July 2014. During the requested claim periods, he worked full-time (in excess of 40 hours per week). He received $9,198.24 in non-military earned income and he did not demonstrate any loss of non-military earned income for these periods. e. The Tier 1 INCAP Pay application submitted for claims for the period 26 June 2015 through 15 October 2015 meets the eligibility criteria for entitlement. The applicant completed the Integrated Disability Evaluation System process and was found unfit by the PEB on 25 July 2015 with 30 percent disability related to his ILD condition. During these claim periods he received $9,295.50 in non-military earned income to be deducted from any authorized military pay and allowances for INCAP pay. 7. On 27 April 2017, the applicant was provided a copy of the OCAR advisory opinion to allow him the opportunity (30 days) to submit comments or a rebuttal. A response was not received from the applicant. REFERENCES: 1. Department of Defense Directive 1241.01 (Reserve Component Line of Duty Determination for Medical and Dental Treatments and Incapacitation Pay Entitlements) shows 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 ILD that require further medical care. 2. Department of the Army Pamphlet 135-381 (Incapacitation of Reserve Component Soldiers Processing Procedures) shows 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, 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 ILD 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 Line of Duty, the Soldier is discharged from the service, upon retirement, or becomes deceased. 3. OCAR (DAAR-HR), Washington, DC, memorandum, dated 10 January 2017, subject: INCAP Pay Program – Army Reserve Implementation Guidance, provides current Army Reserve guidance and procedures. DISCUSSION: 1. Records show the applicant sustained a physical disability due to injury that prevented the performance of his military duties. He was retired based on permanent disability effective 16 October 2015. a. INCAP pay is designed to compensate Soldiers for their injuries that are considered ILD that require further medical care. b. In order to receive INCAP pay, a Soldier must submit the necessary documentary evidence to their servicing human resource/finance office. 2. The applicant submitted applications for claims during the period 1 April 2015 through 15 October 2015; however, they were not processed through USAR channels prior to his retirement from active service. 3. A careful review of the evidence of record, in conjunction with the advisory opinion provided by the USARC G-1, shows the applications submitted by the applicant for: a. the claims for the period 1 April 2015 through 25 June 2015 do not meet criteria for entitlement to Tier 1 INCAP pay because there is insufficient medical documentation to support these claims; and b. the claims for the period 26 June 2015 through 15 October 2015 do meet the eligibility criteria for Tier 1 INCAP pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002344 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002344 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2