ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

IN THE CASE OF:

 BOARD DATE:  1 April 2019 DOCKET NUMBER: AR20160012638
APPLICANT REQUESTS:

* incapacitation pay
* personal appearance before the Board

APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

* DD Form 149 (Application for Correction of Military Record)
* DA Form 3349 (Physical Profile)
* Line of Duty (LOD) Investigation
* DA Form 7574-2 (Soldier's Acknowledgement of Incapacitation Pay Counseling)
* DA Forms 7574-1 (Military Physician's Statement of Soldier's Incapacitation/Fitness for Duty) April 2010 through March 2015
* DA Forms 7574 (Incapacitation Pay Monthly Claim Forms) April through September 2010, October 2010 through March 2011, and April 2011 through April 2014
* memo authorizing incapacitation pay beyond 180 day statutory limit
* memo approving incapacitation payment for 12 April 2010 through 30 September 2010
* record of attendance at Unit Training Assemblies (UTA)
   * medical documents FACTS:
1. The applicant states:

* she was only paid incapacitation pay for 12 April 2010 through 30 September 2010 and 1 October 2010 through 1 March 2010
* she is requesting to be paid incapacitation pay from March 2011 through May 2015
* she was still part of the Reserves and submitted all the proper documentation to her command
* she was discharged before she could be paid
* after sustaining the injury in the LOD she had to have multiply surgeries
* none have fixed her injury completely
* 

* she's been disabled since April 2010
* she has been unemployed for the last 6 years

2. The applicant is a member of the US Army Reserve (USAR) who suffered an injury to her left shoulder on 11 April 2010 while she was attending Advanced Individual Training in an Active Duty capacity. She was placed on a permanent profile due to that injury on 10 August 2010.

3. Due to her injury, the applicant was unable to participate in UTAs or continue in her civilian job. Department of Defense Directive 1241.01 states incapacitation pay is the compensation Soldiers receive for their injuries considered in the line of duty that require further medical care.

4. A LOD investigation was completed and found the injury to the applicant occurred in the line of duty. The approval memo was signed on 11 October 2013. The applicant was counseled regarding incapacitation pay on 22 April 2013. The counseling statement stated the applicant would not perform inactive duty training, annual training, or any form of active duty during the time she was drawing incapacitation pay.

5. Department of the Army Pamphlet 135-381 states the Soldier's injury must have occurred during a period of active duty and/or inactive duty of more than 30 days and be in the line of duty. Soldiers who receive incapacitation pay are not entitled to accrue leave or retirement points. The pay shall terminate when 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.

6. Payment of incapacitation pay for the period of 12 April 2010 through 30 September 2010 to the applicant was approved on 11 March 2014.  The applicant was authorized to receive incapacitation beyond the 180-day statutory limit.

7. The applicant received an Informal Physical Evaluation Board. The board found her physically unfit for duty and recommended a rating of 20 percent disability and she be separated with severance pay.

8. The applicant was honorably separated from the Army on 14 April 2015. She received a disability rating of 20%.

9. In the processing of this case an advisory opinion was obtained from the Office of the Chief of Army Reserve.  The advisory opinion stated:

* G-1 is unable to provide full administrative relief for the applicant
* out of service processing of incapacitation payment for USAR individuals that are separated prior to their final incapacitation claim adjudication are not authorized payment
* 

* final action must be determined by Army Board for Correction of Military Records (ABCMR)
* his office reviewed the pay applications submitted for the period of 1 March 2011 through 31 May 2015
* the applicant's unit did not conduct a Readiness Division Incapacitation Review Board prior to the applicant being separated on 14 April 2015
* Soldiers who perform military duty are not eligible for incapacitation pay
* the applicant performed military duties in the following months:

* March, April, May, June, July, September, October, November and December 2011
* January, February, May, July, August, October, November, and December 2012
* February and November 2013
* January and May 2014

* the incapacitation pay claims made for the months the applicant did not perform military duty meet the eligibility criteria for entitlement
* incapacitation pay will not continue beyond the date of her separation, 14 April 2015

10. The applicant was provided a copy of this advisory opinion on 6 February 2019, to provide her an opportunity to comment and/or submit a rebuttal.  She did not respond.

11. Amy Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.

BOARD DISCUSSION:

1. After review of the application and all evidence, The Board determined there is sufficient evidence to grant partial relief. The applicant’s contentions, medical concerns, and the advisory opinion were carefully considered. Based upon the preponderance of evidence, the Board agreed to recommend INCAP pay is authorized for the following periods: Mar – Oct 2013; Feb – Apr 2014; and Jun 2104 – Apr 2015.

2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.
1. 

BOARD VOTE:

Member 1 Member 2   Member 3

: :	:	GRANT FULL RELIEF

:X	:X	:X GRANT PARTIAL RELIEF

: :	:	GRANT FORMAL HEARING

: :	:	DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined the evidence presented is 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 authorizing Incapacitation Pay (INCAP) for the following periods:

* 1 March 2013 through 31 October 2013;
* 1 February 2014 through 30 April 2014; and
* 1 June 2014 through 30 April 2015

2. The Board further determined the evidence presented is 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 paying INCAP consecutively 1 March 2011 through
31 May 2015.




 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.

ADMINISTRATIVE NOTE(S): N/A

REFERENCES:

1. Army Regulation 15-185 (ABCMR), the regulation under which this Board operations, provides that ABCMR members will review all applications that are properly brought before them to determine the existence of an error or injustice, and to direct or
1. 

recommend changes in military records to correct the error or injustice, if persuaded that a material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires.

2. 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.

3. 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.

4. 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
   a. 

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.

//NOTHING FOLLOWS//