ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 June 2021 DOCKET NUMBER: AR20170018540 APPLICANT REQUESTS: in effect, the following: . correction of his records to authorized payment of incapacitation (INCAP) pay . a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record) . Department of Veterans Affairs (VA) medical records . letter FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states in accordance to the National Defense Act, no one may take away or threaten to take away or should take away any favorable personal action from a Member of Congress. His INCAP paperwork was in order. His combat and active duty timeframes were not included in the Line of Duty. 3. The applicant provided his” . VA medical records, dated between 2010 and 2017, showing he received medical care for low back pain . letter, dated 8 February 2018, wherein he requested congressional assistance 4. Review of the applicant’s service records show: a. He enlisted in the Regular Army on 20 February 2003. He held military occupational specialty 92F (Petroleum Supply Specialist). He was promoted to E-4 on 1 July 2005. He served in Afghanistan from 13 April 2005 to 12 April 2006. b. He was honorably released from active duty on 31 May 2006 and was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 3 months, and 11 days of net active service, with 2 years and 24 days of foreign service. c. He reenlisted in the USAR on 29 June 2010, for 6 years. d. On 9 June 2014, an informal physical evaluation board (PEB) convened and determined he was unfit for lumbar intervertebral disc syndrome (Medical Evaluation Board Diagnosis 1), non-combat, non-combat zone, as a result of a motor vehicle accident in November 2010. The PEB also determined his other medical conditions met retention standards. The PEB recommended a disability rating of 10% and his disposition as separation with severance pay. He concurred with the findings and recommendation of the PEB and waived his right to a formal hearing. e. Orders Number D88-010, issued by the U.S. Army Disability Agency on 7 July 2014, announced his honorable discharge from the USAR on 11 August 2014, under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), with a 10% rating and entitlement to severance pay based on 4 years, 1 month, and 17 days of service. f. On 8 September 2014, the Chief, Health Services Branch, 63rd Regional Support Command, Mountain View, CA, advised the applicant of the following: . his application for INCAP pay, for the period from 2 October 2010 to 31 March 2011, did not meet the criteria established in law and regulation for entitlement; therefore, the claim had been denied . Tier 1 INCAP was disapproved because he was not incompliance with DA Form 7574-1 (Physician Statement of Soldier's Incapacitation) for that period as he had performed military duties during incapacitation periods . he did not meet the Tier 2 criteria due to he was unemployed and no loss of civilian income . he had the right to request reconsideration of his case and should submit his request within 30 days of receipt of this memorandum, together with any additional substantiating statements or documentation . further appeal should be directed to USAR Command, (ARR-PRS-M/INCAP Pay Claims), Fort Bragg, NC 5. An advisory opinion was received from the Chief, Compensation and Entitlements, Office of the Deputy Chief of Staff, G1, on 27 March 2019, in the processing of this case. The G1 official stated: a. In accordance with the Title 37, U.S. Code, Section 204 (Entitlement); Department of Defense Instruction (DODI) Number 1241.01 (Reserve Component (RC) Line of Duty Determination for Medical and Dental Treatments and Incapacitation Pay Entitlements); and AR 135-381 (Incapacitation of Reserve Component Soldiers), it was the G1 opinion that no relief be granted to the entitlement of INCAP pay for the period of 11 August 2010 through 11 August 2014. The documents provided by the applicant demonstrated he did have a service-connected medical condition, however, the documents did not provide clear and convincing evidence for the payment of INCAP pay was required by law. b. Service members could be entitled to INCAP under the following categories. . Tier 1 – INCAP was paid to military service members with service-connected injuries that were unable to complete any duty period . Tier 2 – INCAP was paid to service members when they were able to complete military duty within their medical restrictions and demonstrated a loss of civilian wages due to those restrictions c. In July 2014, the applicant requested Tier 1 INCAP for the period from 2 October through 31 December 2010. On 8 September 2014, the approving authority denied that request due to his performance of military duty during that period which restricted the payment of Tier 1 INCAP. The approving authority reviewed the case for authorization of Tier 2 INCAP, but were unable to approve Tier 2 INCAP due to his inability to demonstrate lost civilian wages. At the time of injury through separation, he affirmed that he was unemployed. Due to his unemployment, he could not demonstrate any lost wages as a result of the service-connected condition. d. The G1 could not provide an opinion regarding his claim for increase to his disability separation from 10% to 100% or his request for promotion during that period. It was recommended that the Army Review Board Agency seek an opinion from the Army Physical Review Board regarding the disability separation and the Army Human Resources Command could address the request regarding his claimed missed promotions. 6. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. The applicant did not respond. 7. By regulation AR 135-381, a member of the USAR may be entitled to INCAP pay for an injury, illness, or a disease incurred or aggravated while in a duty status. The burden of proof of loss income rests with the Soldier. 8. By DoDI Number 1241.2, dated 3 May 2001, paragraph 6.3.2., stated INCAP pay was separated into two tiers: Tier 1 – Full Military Pay and Allowances: for Soldiers who were are unfit to perform military duties as a result of an injury, illness, or disease caused by military service and Tier 2 – Lost Civilian Wages for Soldiers who were fit to perform their military duties by a military medical physician, but were unable to perform their civilian job and could demonstrate a loss of civilian earned income. 9. By regulation (AR 15-185), 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined it could reach a fair and equitable decision in the case without a personal appearance by the applicant. The Board also determined relief was not warranted. Based upon the advisory opinion recommendations and the failure of the applicant to submit a timely rebuttal of those recommendations, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s pay record. BOARD VOTE: BOARD DETERMINATION/RECOMMENDATION: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XXX DENY APPLICATION 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. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3 year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 135-381 (INCAP of Reserve Component Soldiers), in effect at the time, established procedures and policies and implements statutory authorities regarding medical, dental, hospitalization, and disability benefits, incapacitation compensation, and death benefits, as well as reporting requirements on those entitlements for Reserve Component Soldiers. The regulated, in pertinent part, that in order to qualify for Army disability benefits, Soldiers must had incurred or aggravated an injury, illness, or a disease while in a duty or travel status. A finding that the injury, illness, or disease was incurred or aggravated in the line of duty was mandatory to qualify for benefits. A member of the U.S. Army Reserve who was physically able to perform military duties, but who sustained an injury, illness, or disease while in the line of duty, that prevented the member from performing his/her civilian job would receive his/her demonstrated loss of income. That loss of income would not exceed the equivalent rate of full pay and allowances for his/her rank and length of service. The regulation also stated in: a. Paragraph 4-1e – Prerequisites for entitlement to INCAP pay were inability to perform normal military duties or satisfactory demonstration of loss of nonmilitary earned income. In the latter case, the burden to prove loss rest with the Soldier. 3. Department of Defense Instruction Number 1241.2 (Reserve Component INCAP System Management), dated 3 May 2001, paragraph 6.3.2., stated INCAP pay was separated into two tiers: Tier 1 – Full Military Pay and Allowances: for Soldiers who were are unfit to perform military duties as a result of an injury, illness, or disease caused by military service and Tier 2 – Lost Civilian Wages for Soldiers who were fit to perform their military duties by a military medical physician, but were unable to perform their civilian job and could demonstrate a loss of civilian earned income. a. In order to qualify for INCAP, the Soldier’s injury, illness, or disease must had 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 was necessary to demonstrate that the injury, illness, or disease incurred was military service connected. b. Soldiers who receive INCAP pay could be entitled to full pay and allowances, incentive pay, special pay, and medical and dental care. INCAP pay could not exceed full military pay and allowances. Soldiers who received INCAP pay were not entitled to accrue leave or retirement points. c. .Other civilian earned income and Department of Veterans Affairs (VA) benefits would also be subject to deduction from the Soldier’s INCAP Pay. That included 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 elected to receive. d. INCAP Pay shall terminate whenever the Soldier was returned to military duties and/or civilian employment, the Soldier received a determination of Not in Line of Duty (NLD), the Soldier was discharged from the service, upon retirement or became deceased. 4. AR 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, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. //NOTHING FOLLOWS//