IN THE CASE OF: BOARD DATE: 5 December 2022 DOCKET NUMBER: AR20220005529 APPLICANT REQUESTS: reconsideration of his previous request for payment of Incapacitation (INCAP) pay Tier 2 for the period of July – November 2016. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letter * Memorandum – Subject: Authorization of INCAP Pay, 2 August 2019 * Memorandum – Subject: Recommendation to Approve Tier 2 INCAP pay, 23 May 2019 * Staff Approval Routing Sheet, 22 May 2019 * Memorandum – Subject: Legal Review of Incapacitation Board Proceeding, 17 June 2019 * Memorandum – Subject: Statement for Use of DA Form 2173 (Statement of Medical Examination and Duty Status) to Record Medical Data, 22 May 2017 * Memorandum – Subject: Line of Duty Determination, 22 May 2017 * DA Form 7574-1 (Military Physician's Statement of Soldier's Incapacitation/Fitness for Duty) * DA Form 7574 (INCAP Pay Monthly Claim Form) * DA Form 2173 * DA Form 7574-2 (Soldiers Acknowledgement of INCAP Pay Counseling), 9 May 2019 * Medical documents * DA Form 3349 (Physical Profile Record) * W-2 Wage and Tax Statement * Transaction Log (TL) History * Master Military Pay Account (MMPA) * Pay documents FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20190008737 on 8 March 2022. 2. The applicant states in pertinent part that he was previously authorized entitlement to INCAP pay however his payment was not processed for actual payment prior to him be medically retired. The applicant injured his lower back and left knee in the Line of Duty (LOD) on 20 July 2013. Following this injury, he underwent surgery on 16 September 2014. As a result of this injury, he was unable to perform his civilian job from 1 July – 30 November 2016 and was therefore not paid for this period. His application for Tier 2 INCAP pay was approved for this period, however due to no fault of his own, payment was not processed prior to him being medically retired. 3. A review of the applicant's available service records reflects the following: a. On 21 December 2012, the applicant enlisted in the U.S. Army Reserve (USAR). b. On 7 November 2017, an Informal Physical Evaluation Board was conducted finding the applicant physically unfit for continued military service. The board recommended the applicant be permanently medically retired with a disability rating of 40 percent. The applicant concurred with the board's recommendation and waived his right to a formal hearing. c. On 9 January 2019, the U.S. Army Physical Disability Agency issued Orders Number D 009-01 releasing the applicant from assignment and duty due to a physical disability incurred while entitled to basic pay on 13 February 2019. 4. The applicant provides the following a: a. Memorandum – Subject: Authorization of INCAP Pay, dated 2 August 2019, reflective of the 63rd Readiness Division, Chief, Health Services Branch recommendation for the approval of the applicant's request for entitlement to Tier 2 INCAP pay for the period of 1 July – 30 November 2016. b. Memorandum – Subject: Recommendation to Approve Tier 2 INCAP pay, dated 23 May 2019, reflective of the 90th Aviation Support Battalion Commander's request for approval of the applicant's request for entitlement to Tier 2 INCAP pay based on his approved LOD for an injury that he sustained on 20 July 2013. Since the injury, the applicant continued to attend battle assemblies but suffered a loss of approximately $25,000.00 in income from his civilian employer due to inability to stand and be mobile during the performance of his required duties as an assistant manager. c. Staff Approval Routing Sheet dated 22 May 2019, reflective of the submitted processing of the applicant's request for entitlement to INCAP pay and the findings of the INCAP pay board conducted. d. Memorandum – Subject: Legal Review of Incapacitation Board Proceeding, dated 17 June 2019, reflective of the legal review conducted by the Staff Judge Advocate (SJA) regarding the results of the INCAP Board that was conducted. The SJA noted no legal objection to the recommendation of 2 of the board members to approve the applicant's request. e. Memorandum – Subject: Statement for Use of DA Form 2173 to Record Medical Data dated 22 May 2017, reflective of information pertaining to an evaluation of the applicant's lumbar strain previously performed by a Physical Therapist on 20 July 2013. f. Memorandum – Subject: LOD Determination dated 22 May 2017, reflective of the Office of the Chief of Army Reserve (OCAR), Chief, Health Services Branch's approval of in the LOD determination conducted concerning the lower back injury and left knee pain that the applicant sustained on 20 July 2013. g. DA Form 7574-1 reflective of the applicant's inability to perform his military and civilian duties from 20 July 2013 – 30 November 2013. h. DA Form 7574 reflective of information pertaining to the applicant's sustained injury on 21 July 2013. As a result of the injury, the applicant was claiming a loss of approximately $5,000.00 per month from 1 July – 30 November 2016. The submitted documents are void of the Commanders endorsement. i. DA Form 2173 reflective of documentation of the applicant sustaining injury to his lower back and experienced knee pain on 20 July 2013. The injury was considered to having occurred in the LOD. j. DA Form 7574-2 dated 9 May 2019, reflective of the applicant's acknowledgement of the requirements associated with his submitted request for entitlement to INCAP pay. k. Medical documents pertaining to the medical care that the applicant received for his lower back strain. These documents are provided in their entirety for the Board's review within the supporting documents. l. DA Form 3349 reflective of the applicant's receipt of a performance limiting profile pertaining to his lower back injury. The profiling authority noted that the applicant's condition did not meet retention standards and therefore recommended that he be reviewed by a Medical Evaluation Board. The applicant's initial profile was issued in September 2013. m. W-2 Wage and Tax Statement, reflective of the applicant's earned income from civilian employment during calendar year 2016. n. TL History reflective of information pertaining to the applicant's attendance at his units monthly Battle Assembly (BA). The applicant highlights his attendance at the 20 July 2013 BA. o. MMPA reflective of evidence of the applicant's receipt of pay and entitlements for calendar year 2016. p. Pay documents reflective of the applicant's pay and entitlements from his civilian employment for the month of June 2016. The documents reflect a gross income of $2,500.00 per pay period. 5. On 8 March 2022, Docket Number AR20190008737 the Board concluded that there was insufficient evidence of an error or injustice which would warrant a change to the applicant's pay record based upon the submitted evidence failing to show that he had first applied for INCAP pay with the Defense Finance Accounting Services (DFAS) and was denied and why they denied such a request so that the ABCMR could properly evaluate said denial and justification for fairness and equity. 6. On 22 September 2022, the Office of the Deputy Chief of Staff, G-1, Chief, Compensation and Entitlements Division provided an advisory opinion concerning the applicant's requested relief recommending approval of the applicant's entitlement to INCAP pay of $25,000.00 for the period of 1 July – 30 November 2016 noting that the applicant would have been placed in a non-duty status due to his surgical procedure on 16 September 2014 and therefore unable to perform his civilian occupational duties. 7. On 27 September 2022, the applicant was provided with a copy of the advisory opinion and afforded 15 days to provide comments. 8. On 9 October 2022, the applicant responded in concurrence with the recommendation made in the advisory opinion. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief. The applicant’s contentions, his military record, an advisory opinion, and regulatory guidance were carefully considered. The Board concurred with the advisory official finding the applicant would have been placed in a non-duty status due to his surgical procedure on 16 September 2014 and therefore unable to perform his civilian occupational duties; therefore, he was entitled to INCAP pay of $25,000.00 for the period of 1 July – 30 November 2016. For that reason, the Board recommended that granting the requested relief was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20190008737 dated 8 March 2022. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by approving the applicant’s request for payment of Incapacitation (INCAP) pay Tier 2 for the period of July – November 2016. Such relief shall result in the payment of $25,000.00. 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: 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// ABCMR Record of Proceedings (cont) AR20220005529 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1