IN THE CASE OF: BOARD DATE: 10 November 2016 DOCKET NUMBER: AR20160016208 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: 10 November 2016 DOCKET NUMBER: AR20160016208 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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 June 2014 to 30 November 2014 * showing the U.S. Army Reserve timely received, accepted, and processed his request for incapacitation pay * paying him any monies he 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. IN THE CASE OF: BOARD DATE: 10 November 2016 DOCKET NUMBER: AR20160016208 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 authorize payment of incapacitation pay from June 2014 to November 2014. 2. The applicant states, in effect, he previously applied to this Board for the pay. The Board obtained an advisory opinion from the Office of the Deputy Chief of Staff, G-1, that stated his request was approved. Accordingly, he received a letter from the Board advising him that the pay was approved. However, he has not received the pay. Upon further review, it was determined that the Army G-1 official erred in the opinion in that the official's intent was to recommended approval rather than approve the request. 3. The applicant provides: * Previous letter from the Board * G-1 Advisory Opinion * U.S. Army Reserve (USAR) Command Advisory Opinion * Previous request and supporting documents CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the USAR on 9 September 1983 and he held military occupational specialty (MOS) 63B (Power Generation and Wheel Vehicle Mechanic). 2. He served through multiple reenlistments in variety of troop program units and he attained the rank/grade of staff sergeant (SSG)/E-6. 3. On 8 October 2003, the USAR Command, St. Louis, MO, issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 4. He entered active duty on 1 November 2004 and subsequently served in Kuwait from 21 December 2004 to 16 December 2005. 5. In August 2012, he injured his knee in Puerto Rico while unloading a van. He then entered the Integrated Disability Evaluation System (IDES). 6. On 26 November 2014, following completion of his VA disability assessment of his unfitting and service-connected disabilities, the VA proposed ratings for his disabilities, an informal PEB convened and found the applicant's conditions prevented him from performing the duties required of his grade and MOS and determined he was physically unfit due to the conditions below. His ratings for the medically-unacceptable conditions under the VA Schedule for Rating Disabilities (VASRD) Code 5055, status post left arthroscopic meniscectomy, rated at 100 percent. 7. The informal PEB also considered his other conditions (as listed on his medical evaluation board), but since those conditions did not fail retention standards and/or were not unfitting, they were not ratable. The PEB found the applicant physically unfit and recommended a combined rating of "100 percent" and that his disposition be "placement on the temporary disability retired list (TDRL)." He concurred. 8. On 17 December 2014, he was issued order placing him on the TDRL in the rank/grade of SSG/E-6 effective 21 January 2005. 9. On 27 January 2016, a TDRL PEB considered his condition and found his condition remained unfitting but sufficiently stable for final adjudication. The TDRL PEB recommended his permanent retirement at a 30-percent disability rating. He concurred. 10. On 23 February 2016, orders were issued to remove him from the TDRL and permanently retire him effective 23 February 2016 by reason of permanent disability. 11. On 2 February 2015, he applied to this Board (ABCMR Docket Number AR20150002656) for payment of incapacitation pay. The Board requested an advisory opinion from the USAR Command and Army G-1. a. On 25 August 2015, the USAR Command stated that their office recommended approval of the applicant's request for extension to receive incapacitation pay beyond the 6 month statutory limitation based upon the history of the Soldier's incapacitation claims and the attached documents. The Soldier's incapacitation claim period of 1 June 2014 to 30 November 2014 met the criteria for approval for incapacitation pay and would have been approved by the Incapacitation Review Board and Army Reserve G-1. However, his request also requires input from the Army G-1 as his claim period exceeds 2 years as of 20 August 2014. The initial claim period for incapacitation began on 20 August 2012. b. The Army G-1 stated on 9 March 2016 that Headquarters, Department of the Army G-1 recommends approval of the applicant's request for extension to receive incapacitation pay for claim exceeding 2 years as of 20 Aug 2014. The. initial claim period for incapacitation began 20 August 2012. He is requesting incapacitation pay from June 2014 thru November 2014. His request to receive incapacitation pay with full pay and allowance is approved. 12. The language indicated in the Army G-1 advisory indicated that the Army G-1 approved the request. As a result, by letter, the Deputy Director, ABCMR, advised the applicant that his request is approved. However, this was erroneous. 13. A corrected advisory opinion was received from the Army G-1 on 11 October 2016 in the processing of this case. The Army G-1 official recommended approval of payment of Incapacitation pay from June 2014 to November 2014. 14. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or comments. He concurred. 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, 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 Line of Duty (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 (NLD), 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 in line of duty that require further medical care. a. 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 his request through USAR channels. b. After a careful review and in coordination with the USAR, the Army G-1 determined he was eligible for incapacitation pay from 1 June 2014 to 30 November 2014. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160016208 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160016208 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2