ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:   BOARD DATE: 8 February 2021 DOCKET NUMBER:  AR20180011764 
APPLICANT REQUESTS: correction of his military records to authorized payment of incapacitation (INCAP) pay. 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. DD Form 149 (Application for Correction of Military Record) . DA Form 2173 (Statement of Medical Examination and Duty Status) . four DA Forms 7574 (INCAP Monthly Claim Form) . four DA Forms 7475-1 (Military Physician’s Statement of Soldier’s 
Incapacitation/Fitness for Duty) . four DA Forms 7574-2 (Soldier’s Acknowledgment of INCAP Pay Counseling) . three DA Forms 5960 (Authorization to Start, Stop, or Change Basic Allowance 
for Quarters (BAQ) and/or Variable House Allowance . Physical Evaluation Board (PEB) Proceedings . Aetna Life Insurance Company documents . service medical records 
FACTS: 
1. The applicant states: 
a. 
He is requesting payment of INCAP for the months of March, April, and May and 2 weeks in June of 2016, following surgery for a line of duty injury while serving in the Florida Army National Guard (FLARNG) that left him unable to perform his civilian job. The surgery was performed in two stages due to infection on 29 February 2016 and the following week on 9 March 2016. Following surgery, he submitted a DA Form 7574 for INCAP for time lost from his civilian employer. The claim was approved by his unit and the State Surgeon and forwarded to NGB. He was concurrently being boarded through the medical evaluation board/physical evaluation board (MEB/PEB) process and was medically retired prior to payment. 

b. 
This lack of income for this 3 1/2 months without pay was harmful to his ability to meet his financial obligations and created a hardship which he is currently attempting to 


recover from. He was advised by his unit that if pay is authorized, but not paid prior to separation he should apply through the ABCMR. 
2. Review of the applicant’s service records show: 
a. 
Having had prior ARNG enlisted service, he was appointed in the Vermont ARNG (VTARNG), Chaplains Branch, as a first lieutenant, on 10 January 2008. 

b. 
He was ordered to active duty in support of Operation Enduring Freedom and entered on 10 December 2009. He was honorably released from active duty on 12 October 2011 and was transferred to the VTARNG. 

c. 
He was appointed in the FLARNG, Chaplains Branch, as a captain, on 1 December 2012. 


d. On 6 April 2017, an informal PEB convened and determined: 
(1) 
he was unfit for Post-Traumatic Stress Disorder (MEB Diagnosis (Dx (Diagnosis)) 2), chronic left leg pain status post open fracture left tibia and fibula with complications (MEB Dx 2) (onset of this condition on 9 March 2014 from compound fractures of the left tibia/fibula when he rear ended an automobile while riding his bike and was thrown over the car while in an active duty status in Tampa, FL. Treatment had included ten surgeries, internal fixation with subsequent replacement of fixation devices, long term antibiotics, and physical therapy with an extremely slow response. That condition was complicated by pseudomonas chronic osteomyelitis and compartment syndrome. He was able to walk slowly, but continued with chronic daily pain. Prognosis was fair, but he would require continuous care and would likely require more surgeries; and left knee degenerative arthritis (MEB Dx1). 

(2) 
The PEB recommended a disability rating of 50% and his disposition as permanent disability retirement.  He concurred with the findings and recommendation of the PEB and waived his right to a formal hearing. 

e. 
Orders Number D125-05, issued by the U.S. Army Disability Agency on 5 May 2017, announced his placement on the Retired List, effective 9 June 2017. 


3. 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 recommended relief be granted to the applicant under Title 37, USC, section 204 (Entitlement), in the amount of $11,928.40, for the period from 29 February to 7 April 2016; and in the amount of $3,664.53 for the period of 8 April through 11 June 2016. Total amount of compensation for the claimed period of $15,592.93, for the period of 29 February through 11 June 2016. The G1 official stated: 
a. 
The applicant would have been placed in a non-duty status due to a surgical procedure on 29 February and remained in that status until 7 April 2016. He did not receive any military or non-military compensation during that period and would be entitled to full pay and allowances for that period. On 8 April 2016, he would have returned to a military duty status to perform military duties within the medical restrictions provided by the primary care physician. 

b. 
He provided medical documents that restricted the performance of his civilian occupation duties for this period. He reported a loss of wages as $7,979.22 and a non­military income of $4,314.69, for a total of $3,664.53 during that period. He returned to his civilian employment on 12 June 2016. That office recommends coordination with Defense Finance and Accounting Service be completed prior to payment to ensure that this claim was not previously liquidated prior to this opinion. 


4. 
The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. The applicant did not respond. 

5. 
By regulation AR 135-381 (INCAP of Reserve Component Soldiers), a member of the ARNG 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. 

6. 
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. 


BOARD DISCUSSION: 
After reviewing the application and all supporting documents, the Board found that relief was warranted. Board members noted that the applicant provided medical documents that restricted the performance of his civilian occupation duties for the contested period. Board members agreed with the advisory official, that the applicant would have been placed in a non-duty status due to a surgical procedure on 29 February and remained in that status until 7 April 2016. He did not receive any military or non-military compensation during that period and would be entitled to full pay and allowances for that period. On 8 April 2016, he would have returned to a military duty status to perform military duties within the medical restrictions provided by the primary care physician. Board members voted to grant him relief for the loss of wages, provided DFA has not already settled his claim. 
BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 
XX: XX: XX: GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 
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 State Army National Guard records and all Department of the Army records of the individual concerned be corrected by: 
• 
showing the applicant’s claims for incapacitation pay for the period 29 February to 7 April 2016 and for the period of 8 April through 11 June 2016 were approved and processed in a timely manner; and 

• 
paying the applicant all incapacitation pay due as reflected in the Advisory Opinion, as a result of the above correction 


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. 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 regulation stated 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. 
2. 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. 
//NOTHING FOLLOWS//