IN THE CASE OF: BOARD DATE: 25 August 2020 DOCKET NUMBER: AR20190012666 APPLICANT REQUESTS: Incapacitation (INCAP) Pay from August 2016 through May 2019 (see page 78 of supporting documents). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Timeline * Order# 14-049-00005 dated 18 February 2014 * Order# 15-036-00001 dated 5 February 2015 * Order# 15-036-00022 dated 5 February 2015 * DA Form 2173 (Statement of Medical Examination and Duty Status) dated 11 March 2016 * Memorandum for Record (MFR) – Line of Duty Determination dated 16 May 2016 * DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 28 May 2016 * DA Form 7574-1 (Military Physicians Statement of Soldiers Incapacitation / Fitness for Duty) * DA Form 7574 (Incapacitation Pay Monthly Claim Form) * United Postal Service (UPS) letter dated 5 March 2018 * MFR – Statement of Medical Condition and Treatment Plan dated 15 August 2016 * Medical Documents * Department of Veterans Affairs letter dated 22 February 2019 * Request for Medical Information dated 27 March 2019 * MFR – Recommendation to approve Tier 1 Incapacitation Pay * Leave and Earnings Statement dated 12 December 2018 * DA Form 4856 (Developmental Counseling Form) 4 April 2018 * DA Form 5893 (Soldiers Medical Evaluation Board/Physical Evaluation Board Checklist dated 10 December 2018 * DA Form 3947 (Informal Physical Evaluation Board Proceedings) dated 28 November 2018 * Order# 348-05 dated 14 December 2018 * MFR – Permanent Physical Disability Retirement dated 14 December 2018 * Certificate of Retirement dated 18 January 2019 * Form 1040A (U.S. Individual Income Tax Return 2016) * W-2 (Wage and Tax Statement 2016) * Form 1099-G (Statement for Recipients of Certain Government Payments) 2016 * Form 1040 (U.S. Individual Income Tax Return 2017) * W-2 2017 * Form 1099-G 2017 * Form 1040 2018 * Schedule 1 (Additional income and Adjustments to Income) 2018 * Schedule 4 (Other Taxes) 2018 * W-2 2018 * Email Communications FACTS: 1. The applicant states that she was medically retired due to an injury to her left shoulder which resulted in her entitlement to incapacitation pay initially. She received compensation for the months of June through August 2016. She was approved for the months of September through November 2016 when she was medically retired. This resulted in a change to her pay classification and stopped all pay and entitlements thus removing her from the pay system. She was unable to submit for the time period of December 2016 through 18 January 2019. She was released by her physician to return to work in February 2019. She has attempted to resolve this issue for over 3 years. She believes that the only reason that this issue has not been addressed previously is due to a technicality with her pay. She contests that her entitlement has already been acknowledged, otherwise she wouldn’t have received payments for the initial 3 months. In addition to the above, the applicant adds the following timeline in order to assist with clarifying the sequence of events: * 12 March 2016 – She was retained on active duty within the Warrior Transition Unit (WTU) * 28 May 2016 – She was released from active duty * 17 August 2016 – Her surgery was completed * 18 August 2016 – Her submitted MRP2 was requested * 21 March 2017 – She submitted her request for INCAP pay * 4 April 2018 – Initial Disability Evaluation System (IDES) Counselling completed * 6 September 2018 – Her Medical Evaluation Board (MEB) process was initiated * 23 October 2018 – Her Physical Exam was requested * 28 November 2018 – A Physical Evaluation Board (PEB) was conducted * 10 December 2018 – She signed the checklist; awaiting PEB findings * 12 December 2018 – She received INCAP pay for June through August 2016 * 14 December 2018 – she requested INCAP pay for September through November 2018; she initiated her retirement notification memorandum * 12 January 2019 – she received her retirement orders with an effective date of 18 January 2019 * 21 January 2019 – she initiated a congressional inquiry concerning her pay. 2. A review of the applicant’s available service records reflects the following: a. On 17 December 2008 she enlisted in the United States Army Reserve (USAR). b. On 18 February 2014 (Order# 14-049-00005) she was ordered to active duty in support of Operation Enduring Freedom effective 22 April 2014. c. On 12 May 2016 (Order# 133-0004) she was released from active duty effective 28 May 2016. d. On 5 September 2017 (Order# 128323) she was placed on active duty for 1 day; purpose - annual training / administrative duties effective 14 September 2017. e. On 16 November 2017 (Order# 015132) she was placed on active duty for 5 days; purpose – annual training / logistics duties. f. On 11 April 2018 (Order# 086221) she was placed on active duty for 3 days; purpose – annual training / logistics support. g. The applicant performed Rescheduled Training (RST) during the following periods: * 21 – 24 May 2018 (logistics duties performed) * 7 August 2018 (Medical appointment) * 22 August 2018 (Medical appointment) * 16 October 2018 (Medical appointment) h. On 28 November 2018 a PEB was conducted finding the applicant physically unfit for continued military service further recommending that she be permanently retired due to a physical disability; physical disability rating of 40%. i. On 14 December 2018 (Order# D 348 -05) she was released from assignment and duty due to a physical disability incurred while entitled to basic pay and under conditions that permitted her retirement for permanent physical disability. 3. The applicant provides the following: a. Order# 14-049-00005 dated 18 February 2014 – see 2b. above. b. Order# 15-036-00001 dated 5 February 2015 reflective of her being extended on active duty for an additional 365 days in support of Operation Enduring Freedom. c. Order# 15-036-00022 dated 5 February 2015 reflective of the previously issue order being amended reducing the period of active duty from 365 days to 331 days. d. DA Form 2173 (Statement of Medical Examination and Duty Status) dated 11 March 2016 reflective of the applicant sustaining injuries to her left shoulder while lifting approximately 30 pounds. The informal findings determined that the injury occurred while in the line of duty. e. Memorandum for Record (MFR) – Line of Duty (LOD) Determination dated 16 May 2016 reflective of her LOD for injuries sustained to her left shoulder being approved and further determined to have occurred while in the line of duty. f. DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 28 May 2016 – see 2c. above. g. MFR – Statement of Medical Condition and Treatment Plan dated 15 August 2016 reflective of an Orthopedic Surgeon defining the applicant’s current condition, recommended surgery and tentative recovery time (approximately 6-9 months). h. Medical Documents – on 27 August 2016 she was examined by orthopedics concerning her shoulder injury. At the conclusion of the evaluation, the attending physician stated that she would benefit from the recommended surgery to restore function and reduce pain. She was then released without restrictions. i. DA Form 7574-1 (Military Physicians Statement of Soldiers Incapacitation / Fitness for Duty) dated 14 November 2016 reflective of her and or her medical records being reviewed by a physician who determined that she was not fit to perform military or civilian duties from 1 September through 14 November 2016. The examination occurred on 14 November 2016. j. DA Form 7574-1 dated 31 January 2017 reflective of her and or her medical records being reviewed by a physician who determined that she was not fit to perform military or civilian duties from 1 November 2016 through 31 January 2017. The examination occurred on 31 January 2017. k. DA Form 7574 (Incapacitation Pay Monthly Claim Form) dated 10 January 2017 reflective of her being incapacitated from 1 – 30 September 2016. During this period, she received $2052.87 in unemployment pay (Item 13.). l. DA Form 7574 dated 10 January 2017 reflective of her being incapacitated from 1 – 31 October 2016. During this period, she received $1916 in unemployment pay (Item 13.). m. United Postal Service (UPS) letter dated 5 March 2018 reflective of the Operations Supervisor’s providing verification that since 1 June 2016 the applicant had been put on light duty by her physician resulting in her inability to work at the UPS until she was released back to full duty. n. DA Form 4856 (Developmental Counseling Form) 4 April 2018 reflective of her being counselled on her referral to the IDES process. o. MFR – Recommendation to approve Tier 1 Incapacitation Pay dated 25 September 2018 (pertaining to 1 – 30 June 2016) reflective of the following: * No Battle Assembly or period of active duty since 28 May 2016 * Inability to perform the military duties associated with her occupational specialty (Unit Supply Specialist) * Inability to return to work (civilian employment) ; projected return to duty date of 17 May 2017 * Previously earning $2,621.23 per month (civilian employment) p. MFR – Recommendation to approve Tier 1 Incapacitation Pay dated 25 September 2018 (pertaining to 1 – 31 July 2016) reflective of the following: * No Battle Assembly or period of active duty since 28 May 2016 * Inability to perform the military duties associated with her occupational specialty (Unit Supply Specialist) * Inability to return to work (civilian employment) ; projected return to duty date of 17 May 2017 * Previously earning $2,621.23 per month (civilian employment) q. MFR – Recommendation to approve Tier 1 Incapacitation Pay dated 25 September 2018 (pertaining to 1 – 31 August) reflective of the following: * No Battle Assembly or period of active duty since 28 May 2016 * Inability to perform the military duties associated with her occupational specialty (Unit Supply Specialist) * Inability to return to work (civilian employment) ; projected return to duty date of 17 May 2017 * Previously earning $2,621.23 per month (civilian employment) r. DA Form 5893 (Soldiers Medical Evaluation Board/Physical Evaluation Board Checklist) dated 10 December 2018 reflective of the steps involved in processing a disability evaluation case. The applicant initialed all required areas acknowledging understanding of the process. s. Leave and Earnings Statement dated 12 December 2018 reflective of her receipt of INCAP pay covering the period of 1 June through 31 August 2016 in the amount of $11,524.92. t. MFR – Permanent Physical Disability Retirement dated 14 December 2018 reflective of the applicant being found to have a disability and therefore recommended for permanent retirement with a disability rating of 40 percent. u. Order# 348-05 dated 14 December 2018 – see 2i. above. v. Certificate of Retirement dated 18 January 2019 reflective of her being retired from the Army at the rank of Sergeant (SGT) / E-5. w. Department of Veterans Affairs letter dated 22 February 2019 reflective of the applicant’s primary care provider recommending that she be excused from lifting, carrying or pushing over 21 – 50 pounds, limit herself to only 335 of her time climbing stairs, ladders, repetitive bending or squatting. x. Request for Medical Information dated 27 March 2019 reflective of the applicant’s permanent inability to lift 40 pounds but is permitted to work 7-8 hours daily otherwise. y. Form 1040A (U.S. Individual Income Tax Return 2016) reflective of her being in receipt of $11,017.00 in unemployment pay during this tax year. z. W-2 (Wage and Tax Statement 2016) reflective of her earning $13,573.04 in taxable income. aa. Form 1099-G (Statement for Recipients of Certain Government Payments) 2016 reflective of her being in receipt of $11,017.00 in unemployment pay during this tax year. bb. Form 1040 (U.S. Individual Income Tax Return 2017) reflective of her being in receipt of $1437.00 in unemployment pay during this tax year. cc. W-2 2017 reflective of her earning $5,384.58 in taxable income. dd. Form 1099-G 2017 reflective of her being in receipt of $1,427.00 in unemployment pay during this tax year. ee. Form 1040 2018 reflective of her earning $14,464.00 in wages during this taxable year. ff. Schedule 1 (Additional income and Adjustments to Income) 2018 reflective of a claimed business income amount of $6150.00 for this taxable year. gg. Schedule 4 (Other Taxes) 2018 reflective of $869.00 in self employment tax. hh. W-2 2018 reflective of her earning $13,938.67 in taxable income. ii. Email Communications reflective of communication concerning the applicant’s case status and submission timelines through ARBA. 4. See applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: 1. After review of the application and all supporting documents, the Board found sufficient evidence to grant partial relief. The applicant requested INCAP pay to cover the period 1 June 2016 to her retirement on 18 January 2019. INCAP pay is paid on a monthly basis for up to 6 months unless exception to policy is granted by the Secretary of the Army via the ABCMR. 2. The applicant met the statutory requirements and had approved documents to receive INCAP pay for the time period 1 June 2016 to 30 November 2016 due to a LOD injury to her shoulder, which prevented her from working as a supply clerk for the UPS. The applicant was paid INCAP pay for 1 June to and including 31 August 2016, but did not receive payments for 1 September to and including 31 November 2016. The Board found sufficient evidence to pay her for the time period 1 September to and including 31 November 2016. 3. INCAP pay authorizes military pay and allowances based on rank and time in service minus gross pay from other income on a monthly basis, not to exceed 6 months without an approved exception to policy. 4. The applicant did not provide and the record is void of approved documentation or monthly pay information for the time period 1 December 2016 to May 2019. Furthermore, statute calls for stopping INCAP pay upon retirement. The applicant retired on 18 January 2019 and would not be authorized INCAP pay after this date. Therefore, the Board found insufficient evidence on which to grant this portion of the applicant’s request. BOARD VOTE: Mbr 1 Mbr 2 Mbr 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 paying her Incapacitation (INCAP) Pay (Tier 1) from 1 September 2016 through and including 30 November 2016. 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 the applicant’s request for INCAP pay from 1 December 2016 to and including 31 May 2019. 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 (AR) 600-8-4 (Line of Duty Policy, Procedures and Investigations) states that Soldiers who sustain permanent disabilities while on active duty to be eligible to receive certain retirement and severance pay benefits, they must meet requirements of the applicable statutes. Physical Evaluation Board determinations are made independently and are not controlled by line of duty determinations; however, entitlement to disability compensation may depend on those facts that have been officially recorded and are on file within the Department of the Army. This includes reports and investigations submitted in accordance with this regulation. A Soldier of the Army Reserve is entitled to hospital benefits, pensions, and other compensation, similar to that for Soldiers of the active Army for injury, illness, or disease incurred while performing active duty for 30 days or less; while traveling directly to or from the place at which that Soldier is to perform or has performed active duty for less than 30 days. 2. AR 135-381 (Incapacitation of Reserve Component Soldiers Processing Procedures) states that Tier 1 refers to claims by Soldiers who are unfit to perform their military duties as a result of an injury, illness, or disease caused by military service. A determination of fitness for duty must be made by a military medical physician. Eligible Soldiers are paid full military pay and allowances, less any civilian earned income received during the month of the claim, and are not eligible to draw retirement points. Incapacitation pay under LOD shall be paid only during the period a member remains not fit for military duty and/or demonstrates a loss of earned income as a result of the incapacitation. Payment in any particular case may not be made for more than 6 months without approval by the Secretary of the Army or their designee. The Secretary of the Army delegates to the Chief, Army Reserve (CAR) the authority to continue the payment of benefits paid for more than 6 months to incapacitated members of the Army Reserve. The CAR delegates to the Army Reserve Deputy Chief of Staff for Personnel the authority to continue the payment of benefits paid for more than 6 months to incapacitated members of the Army Reserve. 3. DODI 1241.1 (Reserve Component medical Care and incapacitation Pay for line of Duty Conditions) states that The Military Departments shall authorize pay and allowances, to the extent permitted by reference (c), for a Reserve component member who is not medically qualified to perform military duties, as determined by the Secretary concerned, because of an injury, illness, or disease incurred or aggravated in the line of duty, or to provide pay and allowances to a member who is fit to perform military duties, but experiences a loss of earned income because of an injury, illness, or disease incurred or aggravated in the line of duty. 4. 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. 5. 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 regular component 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 b. 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 c. 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. 6. Types of INCAP pay are as follows: Tier 1 • Soldier who is unable to perform military duties due to ILD condition • authorized INCAP pay in accordance with 37 USC 204(g). • authorized full military pay and allowances less gross non-military earned income. • Soldiers unable to perform military duties will not participate in any active or inactive duty status throughout the duration of the incapacitation period, however, he or she may earn retirement points in order to satisfy the requirements for a qualifying year of service by completing approved correspondence courses Tier 2 • Soldier who is able to perform military duties and demonstrates a loss of non- military earned income as a result of an ILD condition • Maximum reimbursement is demonstrated non-military lost income or full military pay and allowances; whichever is less (amounts will not exceed the lost non- military income) • Soldiers able to perform military duties may participate in active or inactive duty and earn retirement points for a qualifying year of service • Soldiers must be employed to receive Tier 2 INCAP pay; INCAP pay-will be discontinued due to voluntary employment termination • Soldiers who are self-employed must provide certification of business structure type (sole proprietorship, partnership, corporation, Limited Liability Company, S corporation, independent contractor, joint venture, or part-time business) and tax records as supporting financial documentation • Soldiers who are students may be authorized INCAP pay. Type of student (full- time, part-time, in-classroom, or virtual classroom) and employment status will determine eligibility and/or amount of compensation • if unemployed, Soldier is not eligible for Tier 2 INCAP pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190012666 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1