ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 December 2019 DOCKET NUMBER: AR20170016315 APPLICANT REQUESTS: to be granted Incapacitation (INCAP) Pay for the time period of 1 June 2015 to 31 October 2015. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum, Line of Duty Investigation (LODI), dated 4 September 2014 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 16 June 2014 * DA Form 7574-1 (Military Physician’s Statement of Soldier’s Incapacitation / Fitness for Duty), dated 23 June 2015 and 9 September 2015 * Memorandum requesting to exceed 6-month statutory limit on receipt of INCAP Pay, dated 10 May 2017 * DA Form 7574 (Incapacitation Pay Monthly Claim Form), a total of 6 forms, dated 18 April 2017 * DA Form 7574-2 (Soldiers Acknowledgement of Incapacitation Pay Counseling), dated 28 June 2017 * DA Form 199 (Informal Physical Evaluation Board (IPEB) Proceedings), dated 4 January 2017 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Order 081-2201, disability retirement FACTS: 1. The applicant states due to his early release from the U.S. Army Reserve (USAR), since he was unable to get the DA Form 7574 processed for his pay. His unit administrator was his point of contact for getting his request processed. 2. A review of applicant service record shows: a. He enlisted in the Army Reserve on 1 August 1979. b. On 16 June 2014, he signed an DA Form 2173 stating the nature of his injury. His physician states, the Soldier was at the range and stepped into a pothole and rolled his right ankle. c. On 4 September 2014, Memorandum for Commander, Subject: Line of Duty [LOD] Determination [Applicant], states, the Department of the Army Human Resources Command has delegated the authority to the USAR Command (USARC) to act as the final approving authority for LODI’s, to include members in a Federalized status or attending an active Army service school. It states that injury occurred during annual training was approved. d. He requested his civilian doctor to complete a DA Form 7574-1 for his inability to perform duties from 1 June 2015 through 29 August 2015. His civilian physician later signed another a DA Form 7574-1 for the time period covering 30 August 2015 through 30 November 2015. e. He submitted a total six DA Forms 7574 requesting Incapacitation Pay for his inability to perform duties from 1 June 2015 through 31 October 2015. His civilian employer’s representative signed another DA Form 7574 verifying the Soldier was unable to work during this time period covering 1 June 2015 through 31 October 2015. 3. On 4 January 2017, a physical evaluation board (PEB) determined the applicant was physically unfit for retention and was permanently retired with a disability rating of 60 percent. 4. On 10 May 2017, Memorandum for Commander, USARC G-1, Subject: Request to Exceed the 180 days Statutory Limit for Incapacitation Pay for [Applicant]. This documents shows he requested an extension to receive incapacitation pay beyond the 6-month statutory limitation (Title 37 U.S.C. section 240(i) (2)) for [Applicant], a member of this unit. He has complaints of severe pain to the leg. He had surgery and requires recovery and physical therapy. 5. On 28 June 2017, he signed a DA Form 7574 requesting Incapacitation Pay. It shows the applicant fully understood and agreed to all the rules and regulations with this request. 6. His DD Form 214 shows he was retired from active duty on 21 May 2017, under the provisions of Army Regulation 635-40, (Physical Evaluation for Retention, Retirement, or Separation) chapter 4 (disability, permanent (enhanced). His character of service is honorable. He completed 1 years, 6 months, and 25 days of net active service this period. 7. An advisory opinion was received from the Office of the Chief of Army Reserve on 23 January 2018 in the processing of this case. The G-1 Health Services Branch, INCAP Pay Program Manager states the following: a. The application for correction of military records concerning Incapacitation (INCAP) Pay for the applicant was reviewed by this office and notes that the applicant does not meet the eligibility criteria established by law for entitlement. b. The US Army Reserve Command (USARC) G-1 is unable to provide full administrative relief and recommends continued ABCMR action. Per HQDA 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 INCAP pay claims concerning retired or separated Reserve Component (RC) Service Members. Out-of-service processing of INCAP payments for RC individuals that retired or separated prior to final INCAP claim adjudication is not authorized and final action must be directed by ABCMR. c. The Tier I INCAP Pay application submitted for the claim periods 1 June 2015 through 31 October 2015, as supplied by ARBA does not meet the criteria for entitlement due: * Insufficient medical documentation to support his claim request. Soldiers able to perform duty are not eligible for Tier 1 INCAP pay. The profile (DD Form 3349) for the claim period does not clearly support his inability to perform military duties and the medical documentation supports his ability to ambulate. His physician letter dated 7 April 2015 released him from the physical therapy program to a home exercise program. * Our records indicate that he did not file for an INCAP extension until after his 21 May 2017 retirement for physical disability. An Incapacitation Review Board did not convene on this claim or provide a recommendation to an applicable approval authority. There is insufficient medical, and financial documentation to make a final determination on this claim. * He might be eligible for Tier 2 INCAP for the requested claim periods if he can demonstrate a loss of nonmilitary earned income. Consideration for INCAP Pay is not available without appropriate supporting financial and medical documentation to certify such a request. * Financial documents must show an earned or lost income for all claim periods. Certified tax documents for these periods will suffice to show earned/lost income. He previously received 12 months INCAP pay for claim periods 20140625-20150531 for a gross amount of $52,122.93. 8. On 2 January 2018, the applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or comments. He did respond. 9. On 24 February 2018, he responded with the following statement with supporting documents. The DA Form 7574-1 has always been used to verify if applicant is able to perform his civilian/military job duties. The DD Form 3349 is used to report physical limitation for Soldier that are injured in the military. This is why he can’t perform military duties. There was an extension letter done in 27 August 2015 and 19 September 2015, when was it sent. He is unsure if it was his responsibility or the units to prepare the documents for him sign. He has no control over his command and please do not hold him accountable. 10. Army Regulation 135-381 (INCAP of Reserve Component (RC) Soldiers) states the objective of the RC INCAP System is to compensate RC members 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 LODI. The worsening of a pre-existing medical conditions over and above the natural progression of the condition as a direct result of military duty is considered an aggravated condition. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions, his military record, an advisory opinion, and regulatory guidance were carefully considered. The Board agreed with the advisory opinion, in that the Army Reserve G-1 determined he did not meet the criteria established by law for the INCAP entitlement; therefore, his claim was denied. The decision was based on insufficient medical documentation to support his INCAP request. Therefore, the Board found there was insufficient evidence to warrant relief in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX DENY APPLICATION 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. 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. REFERENCES: 1. Department of Defense Directive 1241.01 (RC LOD Determination for Medical and Dental Treatments and Incapacitation Pay Entitlements) 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. a. Incapacitation pay will be paid only during the period an Reserve Component service member is unable to perform military duties or demonstrates a loss of earned income from nonmilitary employment or self-employment as a result of an in the LOD condition. b. Incapacitation pay may not be continued for more than 6 months without review of the case by the Secretary of the Military Department concerned to ensure that continuation of incapacitation pay is warranted in accordance with applicable laws. c. When determining whether incapacitation pay should continue beyond the initial 6 months, the Secretary of the Military Department concerned will consider if a service member has resumed his or her civilian occupation, undertaken a new position in the same occupation, or taken a position in a new occupation. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth the policies for the disposition of Soldiers found unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating. 3. Title 37, U.S. Code, Section 204 (Entitlement) states a member of a Reserve Component of a uniformed service is entitled to the pay and allowances provided by law or regulation for a member of a RC of a uniformed service of corresponding grade and length of service whenever such member is: a. physically disabled as the result of an injury, illness, or disease incurred or aggravated— * in LOD while performing active duty; * in LOD while performing inactive duty training (other than work or study in connection with a correspondence course of an armed force or attendance in an inactive status at an educational institution under the sponsorship of an armed force or the Public Health Service) * while traveling directly to or from such duty or training b. In the case of a member who receives earned income from nonmilitary employment or self-employment performed in any month in which the member is otherwise entitled to pay and allowances under paragraph 1, the total pay and allowances shall be reduced by the amount of such income. c. A member of a reserve component of a uniformed service who is physically able to perform his military duties, is entitled, upon request, to a portion of the monthly pay and allowances provided by law or regulation for a member of a regular component of a uniformed service of corresponding grade and length of service for each month for which the member demonstrates a loss of earned income from nonmilitary employment or self-employment as a result of an injury, illness, or disease incurred or aggravated— * in LOD while performing active duty; * in LOD while performing inactive duty training 4. Department of Directive Instruction Number 1241.01 (RC Line of Duty Determinations for Medical and Dental Treatments and INCAP Pay Entitlements) 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. INCAP pay is compensation Soldiers receive for their injuries considered in line of duty that require further medical care. 5. DOD 7000.14-R (Financial Management Regulation) states that a Reserve Component member is entitled to the pay and allowances (incapacitation pay) provided by law or regulation for a member of a Regular Component of corresponding grade and length of service whenever such member is physically disabled as the result of an injury, illness, or disease incurred or aggravated in the line of duty (LOD) while performing active duty or traveling directly to or from such duty or training. In the case of a member who receives earned income from nonmilitary employment or self- employment performed in any month in which the member is otherwise entitled to pay and allowances under subparagraph 570604.A.1, the total pay and allowances shall be reduced by the amount of such income. Pay and allowances may not be paid for a period of more than 6 months. The Secretary concerned may extend such period in the interest of fairness and equity. Termination of Pay and Allowances while disabled terminates upon retirement, separation for physical disability or discharge from the Reserve Component or when a member can no longer demonstrate a loss of earned income from nonmilitary employment or self-employment as a result of an in LOD condition. 6. Army Regulation 135-381 (INCAP of RC Soldiers) prescribes policies and procedures for INCAP pay. a. The objective of the RC INCAP System is to compensate members of the RC 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. The worsening of a pre-existing medical conditions over and above the natural progression of the condition as a direct result of military duty is considered an aggravated condition. c. INCAP 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. d. INCAP pay will continue as long as the conditions warranting the INCAP pay exist and the approving authority determines that it is in the interest of fairness and equity to continue the payment. e. When incapacitation lasts for over a year, the case should be processed through the DES for disability separation or retirement. INCAP pay will end upon retirement, separation for physical disability, or determination by military service medical personnel that the member has recovered sufficiently to perform military duties, when actually returned to military duty, whichever occurs first. f. Review of individual cases will commence far in advance of the end of each 6- month period so as to ensure that INCAP pay will not be interrupted if it is determined that it should be continued. g. The following procedures must be followed: (1) The pay will not be terminated due to administrative oversight. (2) The 6-month period need not be consecutive. For example, a Soldier who is injured in March and meets the eligibility requirements may be paid INCAP pay in April, May, July, September, December, and January. The Soldier may be paid for these months provided he or she continues to meet the eligibility requirements. h. 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. 7. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170016315 5 1