IN THE CASE OF:  
 
  BOARD DATE: 8 August 2023 
 
  DOCKET NUMBER: AR20220007016 
 
 
APPLICANT REQUESTS: in effect – 
 
• entitlement to a cost-of-living adjustment to the incapacitation (INCAP) pay received for the period 29 March 1997 through 19 June 2003 

• back pay for Department of Veterans Affairs (VA) service-connected disabilities, training, meetings, and travel 

• correction of his Social Security Administration records 


 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149, Application for Correction of Military Record 

• three self-authored statements, from 25 April 2021 to 3 February 2022 

• Request to Exceed 6-Month Limit on Receipt of Incapacitation Pay, 3 May 2001 with Leave and Earning Statements (LES) (May-June 2004; and May 1999) 

• Defense Finance and Accounting Service (DFAS) letter, 25 October 2004 

• DA Form 1380, Record of Individual Performance of Reserve Duty Training,  


(28 June-7 August 2005) 
• Office of the Inspector General letter, 19 September 2007 

• Social Security Administration Letter, 18 March 2008 

• VA Form 21-4138, Statement in Support of Claim, 30 June 2018 

• DD Form 827, Application for Arrears in Pay, 22 February 2022 

• Defense Finance and Accounting Service (DFAS), undated 

• Government and State Issued Identification Cards 


 
FACTS: 
 
1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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 effect: 
 
 a.  He would like a review of his military records to determine his eligibility for compensation for INCAP pay, training travel, and administrative meetings that he never received. After several failed attempts, he finally received a letter after years of unsuccessful attempts. DFAS instructed him to make a request for correction of his records to this Board.  
 
  (1) He contends there is verification that his base pay was approximately $1,767.00 in 1998 and $1,896.00 in 1999. His payment did not take into consideration a cost-of-living adjustment for the years from 1997 to 2000. He received partial INCAP pay primarily in the amount of $620.00. He did NOT receive full INCAP pay during the period 1997 to 2003. He is seeking the difference in compensation with cost-of-living for the period from 29 March 1997 through 19 June 2003. During this period, he was incapacitated due to military injuries and surgeries. He also lost a job with the VA and the Station Casino. There is evidence with the VA concerning the loss of his job. An Equal Employment Opportunity Commission complaint was filed concerning his loss of employment. He indicates that relevant evidence can be found with the Army National Guard and the USAR pertaining to the Army Relief Act related to the loss of his job with the casino. 
 
  (2)  He is requesting payment for training he completed from 28 June 2005  
to 7 August 2005. This training was performed in St. Louis, Missouri while assigned to the 245th Maintenance. 
 
  (3)  He attended administrative meetings from September 2005 to December 2005. It was mandatory training for which he was not paid. 
 
  (4)  He traveled from St. Louis, Missouri to Lincoln, Nebraska, and from Fort Riley, Kansas to Kuwait City, and then to Iraq in 2006. Then upon return home from Iraq he travelled to Kuwait, Fort Lee, Virginia, St. Louis, Missouri, Fort Leonard Wood, Missouri, and then back to St. Louis, Missouri. 
 
 b.  In addition, he would like a correction submitted to the Social Security Administration concerning a lump sum partial INCAP payment that he received in 2004 that must be corrected by allocating the correct amount of payment over a period of years that he received the pay. It was for a period of 5 years and 28 days. He stresses the dire need to have his income allocation corrected as soon as possible. He qualified for his social security payments last year and was not able to receive the full benefit due to this administrative error. His Social Security Statement shows a partial payment lumpsum of $42,885.00 in the year 2004. It was for the years April of 1997 to June 2003. A representative from the Social Security Administration told him the amounts for these years need to be separated and reported in the year that he received the payment. This error effects his social security payment negatively. 
 
 c.  The corrections are needed so that he can get the full payment that is due from his activity in the military and to resolve other matters needed for his service-connected injuries that the VA has granted him a 100-percent disability rating. The VA denied his initial claim; however, in November 2007, they reversed their original decision, however he did not receive back pay. He would like to be awarded back pay for his service-connected disabilities. This has worn on him mentally and physically over the years and has caused him great hardship, so closure is needed. 
 
3.  The applicant's request for back pay for VA disability compensation, and correction of his Social Security Administration records will not be addressed in this Record of Proceedings (ROP) as these records are outside the purview of the Board. Further, his request for travel pay is premature as there is no evidence to show that he filed a travel voucher and was denied payment by the DFAS. This portion of his request will not be addressed in this ROP. 
 
4.  Having prior service in the Army National Guard and the Regular Army, the applicant enlisted in the U.S. Army Reserve (USAR) on 23 August 1996. 
 
5.  The applicant’s official record is void of any documents related to INCAP pay. His record does include the following documents pertaining to his injuries and Line of Duty investigations- (LDI).  
 
 a.  DA Form 2173, Statement of Medical Examination and Duty Status, 21 March 1997, which shows the applicant was injured on the same day when his hand was smashed between the rear bed of a 5-ton truck and a loaded ice chest. The ice chest fell on his hand and stayed because of the weight of the chest (approximately 500 pounds). This accident was found to be in the LD. 
 
 b.  A memorandum from Headquarters, U.S. Army Medical Department Activity, Fort Knox, KY, 30 November 1999, wherein the Chief, Orthopedic Surgery Service, stated the applicant was undergoing continued evaluation and treatment for bilateral upper extremity numbness and tingling as the result of an injury that occurred in 1997 and continued to worsen despite surgery on both wrists. 
 
 c.  A DA Form 2173, 7 January 2000, shows a Formal LD was initiated for the applicant’s neck pain, arm pain, and likely related cervical spine disease which resulted from the injury he sustained on 21 March 1997. 
 
 d.  Legal Opinion, Formal LD, 14 June 2001. The Judge Advocate, 91st Legal Support Organization, Minnesota, stated the applicant, while in Inactive Duty Training (IDT) status at a regularly scheduled drill, injured his wrist while unloading a cargo truck. The investigating officer's finding that this injury is in LD is consistent with the evidence. However, subsequent to this injury, the applicant complained of a neck injury. He was 
subsequently treated for a bulging disk in his neck. The attending physician's opinion was that the wrist and neck injuries were absolutely unrelated. The investigating officer's finding that the neck injury was Not in LOD-Not Due to Own Misconduct was consistent with the medical evidence adduced. 
 
 e.  The applicant provided a rebuttal on 31 August 2001. The applicant disputed the Investigating Officer’s findings due to the contradictory nature of the medical statements by different competent professionals. He asked that his injuries be found to be in the LD or the investigation be set aside and a new LDI be ordered with a different Investigating Officer.  
 
 f.  A Medical Advisory Opinion, 10 September 2002. The Director, Health Policy and Services, Office of the Surgeon General (OSG), Virginia recommended in the LD for chronic neck pain that originated with an injury which incurred during annual training. There was no evidence the applicant suffered from left arm and neck pain prior to his injury. Presumably he was satisfactory performing his military and civilian job prior to his injury. Medical documentation supports that the symptoms rendering him unfit to perform those jobs originated at the time of the injury. When a Soldier develops new symptoms related to an injury incurred while in a duty status, even if an exact cause and effect relationship between those symptoms, objective findings and the injury cannot be determined with certainty, barring misconduct or clear evidence of non-duty-related origin, the benefit of any doubt should be given the Soldier. 
 
 g.  A memorandum from the Chief, Mortuary Affairs and Casualty, U.S. Army Total Army Personnel Command, Virginia, 12 November 2002. This official stated that after thorough review of the applicant’s LDI and appeal and the OSG’s opine, the finding was changed to in the LD for chronic neck pain. 
 
6.  The applicant was discharged from the U.S. Army Reserve on 5 March 2007. 
 
7.  The applicant provides: 
 
 a.  Three LES forms: 
 
• LES, 26 May 1999, shows the applicant received INCAP pay for the period from 1 February 1999 and 15 February 1999 

• LES, 28 May 2004, shows the applicant received INCAP pay for the period 


from 1 April 1999 to 31 August 2000 
• LES, 1 June 2004, shows the applicant received INCAP pay for the period  


2 June 2003 to 18 June 2003 
 
 b.  Memorandum, Subject: Request to Exceed 6-Month Limit on Receipt of Incapacitation Pay, 3 May 2001. This form shows the applicant requested an extension 
to receive INCAP pay beyond the 6-month statutory limitations. It contains the history of his INCAP payments between 1 April 1997 and 31 October 1998 (21 periods) were pending payment. The applicant has drawn a line the following entries: 
 
• 1 November-30 November 1998……..$1,767.70 

• 1 January-31 January 1999…………..$1,896.96 


 
 c.  A letter from the Director, Military and Civilian Pay Services, DFAS, 25 October 2004. This letter is a response to the applicant’s inquiry sent to the sitting President of the U.S. of America requesting INCAP pay during the period from 29 March 1997 to 19 June 2003. This official informed the applicant that their research found that he had received INCAP pay from his former military unit. 
 
 d.  DA Form 1380, Record of Individual Performance of Reserve Duty Training, undated. This form shows the applicant completed police call and helped out in the Supply and Maintenance Shop on seven separate days between 28 June 2005 and  
7 August 2005. The applicant did not provide his LES for this period. 
 
 e.  A letter from the Chief, Assistance Division, Office of the Inspector General, Washington, DC, 19 September 2007. In regards to the applicant’s request for INCAP pay, this official stated that his request for unprocessed INCAP pay was not founded.  
 
  (1)  His INCAP pay had been properly submitted based on the initial LD, second LD and at the proper tier level for INCAP pay. After his accident his medical bills were paid, two LDs were completed and approved, and his INCAP pay approval was completed at the Department of the Army level. After his injury in March 1997, he received INCAP pay for six days. He was diagnosed with carpel tunnel syndrome in December 1998 and received INCAP pay for the associated period of 153 days. In November 1999, he received military medical treatment for a herniated cervical disc and requested INCAP pay due to this condition. 
 
  (2)  He had secondary medical issues not identified in the first LOD, so a formal LD covering the secondary medial issues had to be completed. Subsequent INCAP pay and documentation based on the second LD had to be submitted to DA for approval since all INCAP payments were related and totaled over 180 days. The LDI was approved in November 2002 and additional INCAP pay requests were initiated once all paperwork was received. There were delays in receiving the proper documentation for the monthly INCAP pay request to include the final date the applicant was in the Army. They wanted to cover all periods that he was either found fit or discharged. Medical fitness and subsequent discharge date was established in April 2003. INCAP pay over 180 days to your discharge date was approved by DA in February 2004. 
 
  (3)  The DFAS office issued multiple checks covering periods over five years old and within five years of the check issue date. In his complaint he cited several of the checks were not received and a check-by-check validation was completed. The applicant also cited in his complaint that he did not believe his INCAP tier level was correct. This information was researched, and he was informed of the regulatory guidance on payment in August 2004. He received total INCAP pay for the period  
24 March 1997 through 18 June 2003 (minus one annual training period in  
September 1998). 
 
 f.  A letter from the Social Security Administration, 19 March 2008, which shows in the year 2004, the applicant earned $42,885. This form does not indicate the source of this income; however, the applicant made the following handwritten entry “2004 reflects a combined partial payment for years 3/97 to 6/03 INCAP Pay. Complete payment is still pending as of 1/22/.” 
 
 g.  A DD Form 827, Application for Arrears in Pay, undated. This form shows the applicant requested arrears payment from 21 March 1997 to 18 June 2003. 
 
 h.  A DFAS letter, undated, which informed the applicant that his request for INCAP Pay, and compensation for training, travel and administrative meetings was being returned without action because they were not the decision making authority for his request. 
 
8.  The Program Analyst, Compensation and Entitlement Division, Office of the Deputy Chief of Staff, G-1, provided an Advisory Opinion on 13 July 2023. This official stated that after careful review of the information provided, their office did not support the 
Soldier's request for recalculation of INCAP Pay.  
 
 a.  Based on the number of missing documents as required by Department of the Army Pamphlet 135-38, Incapacitation of Reserve Component Soldiers Processing Procedures, further research of INCAP Pay was not tenable. 
 
 b.  Additionally, it is their opinion that a comprehensive review of INCAP Pay was 
previously conducted in 2004 and 2007, and the amount was verified as correct. 
 
 c.  The back pay for INCAP Pay awarded in prior years, as paid in 2004, was reported correctly. Pay received is reported in the year in which it is paid, not the year in which it was accrued; therefore, corrected W-2's would not be necessary. 
 
9.  The doctrine of laches is defined by Black's Law Dictionary as the neglect to assert a right or claim which, taken together with the passage of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity. 
 
10.  Army Regulation 15-185, Army Board for Correction of Military Records, prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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. 
 
BOARD DISCUSSION: 
 
After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board reviewed and agreed with the advisory official’s finding that a comprehensive review of INCAP Pay was previously conducted in 2004 and 2007, and the amount was verified as correct. The back pay for INCAP Pay awarded in prior years, as paid in 2004, was reported correctly. Pay received is reported in the year in which it is paid, not the year in which it was accrued; therefore, corrected W-2's would not be necessary. 
 
  
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
: : : GRANT FULL RELIEF 
 
: : : GRANT PARTIAL RELIEF 
 
: : : GRANT FORMAL HEARING 
 
xx: xx: xx: 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. 
 
  8/8/2023

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, U.S. 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 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.  Public Law 99-661, 14 November 1986, changed the method the Army used for determining entitlement to incapacitation pay. Prior to the effective date of this statute, a Reservist was entitled to full pay and allowances, without regard to loss of civilian income, if that Reservist was determined unable to perform "normal military duties." After the passage of that statute, entitlement to incapacitation pay was governed strictly by a Reservist demonstrating a loss of civilian income. If a Reservist lost civilian income as a result of an injury or disease incurred while performing official military duties, the Reservist would be reimbursed up to, but not to exceed, the active duty pay and allowances he or she would receive for their military pay grade and years of service. 
 
3.  Public Law 100-456, FY 1989, which amended Public Law 99-661, states, in part, that a member of a Reserve Component of a uniformed service is entitled to incapacitation pay in the amount of the pay and allowances of a member of a Regular Component of a uniformed service member if the member is physically disabled as the result of an injury, illness, or a disease incurred or aggravated in the line of duty while performing active duty; in the line of duty while performing inactive active duty; and while traveling directly to or from such duty or training. Generally speaking, income from nonmilitary employment or self-employment earned by an incapacitated member during a month he would have otherwise have been entitled to incapacitation pay operates to reduce the amount of incapacitation pay the member actually receives on a dollar-to-dollar basis. 
 
4.  Army Regulation 135-381, Incapacitation of Reserve Component Soldiers: 
 
 a.  Paragraph 1-4m states Regional Readiness Commands may approve claims up to 180 days for the Army Reserve.  
 
 b.  Paragraph 1-4n states unit commanders will ensure a LOD investigation is conducted expeditiously on injury or illness likely to result in a claim against the Government for compensation.  
 
 c.  Paragraph 1-6 (Entitlement) states a member of the Reserve Component incurring or aggravating any injury, illness, or disease in the LOD is entitled to 
INCAP pay, in accordance with Title 37, United States Code, section 204. If the resulting incapacitation cannot be materially improved by further hospitalization or 
treatment, the case will be processed and finalized through the Disability Evaluation System (DES) when eligible for disability processing. 
 
 c.  Paragraph 1-8 (Members unable to perform military duties) states a member who is unable to perform military duties because of incapacitation under the circumstance described in paragraph 1–6 is entitled to full pay and allowances, including all incentive pay to which entitled, less any civilian earned income for the same period the member receives INCAP pay.   
 
 d.  Paragraph 1-11 (Duration of INCAP pay) states 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. Payment in any particular case may not be made for more than 6 months without review of the case by appropriate headquarters as outlined in paragraph 3–6. To insure that continuation of INCAP pay is warranted under this regulation, a review will be made every 6 months. 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. 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. 
 
 e.  Paragraph 2-1 (Duty status) states a Soldier in an active duty status such as active duty for training at the time of injury, illness, or disease is critical in determining entitlement to incapacitation compensation. Active duty status is verified by appropriate orders. 
 
5.  Title 37, U.S. Code, section 204, Entitlement, states – 
 
 a.  In the case of 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 line of duty while performing inactive duty training. 
 
 b.  The monthly entitlement may not exceed the member's demonstrated loss of earned income from nonmilitary or self-employment. In calculating such loss of income, income from an income protection plan, vacation pay, or sick leave which the member elects to receive shall be considered. 
 
6.  Title 10, U.S. Code, section 1552, the law which provides for the Board, states that The Secretary may pay, from applicable current appropriations, a claim for the loss of 
pay, allowances, compensation, emoluments, or other pecuniary benefits, or the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due to the claimant on account of his or another's service in the Army, Navy, Air Force, Marine Corps or Coast Guard, as the case may be. 
 
//NOTHING FOLLOWS//