MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE:
DOCKET NUMBER:
I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.
Mr
The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.
The applicant requests correction of military records as stated in the application to the Board and as restated herein.
The Board considered the following evidence:
Exhibit A - Application for correction of military
records
Exhibit B - Military Personnel Records (including
advisory opinion, if any)
APPLICANT REQUESTS: "That the Georgia Army National Guard stop garnishing my military pay, that the debt be cancelled, and the return of all monies which have been garnished as soon as possible."
APPLICANT STATES: In effect, that his nonmilitary losses entitle him to incapacitation pay.
EVIDENCE OF RECORD: The applicant's military records show:
A Report of Investigation - Line of Duty and Misconduct Status, shows that the applicant, serving in pay grade E-6 at the time, aggravated an existed prior to service (EPTS) shoulder condition during annual training in 1990; and that the injury was determined to have been incurred in line of duty, EPTS aggravated.
The available documents indicate that the Georgia ARNG subsequently garnished his military pay.
On 1 September 1998 the Board was advised (COPY ATTACHED) by the Chief, National Guard Bureau (NGB) that through coordination with the Georgia ARNG it has been determined that the applicant was receiving both incapacitation pay and drill pay for 2 years while he was incapacitated; and that an individual cannot receive drill pay and incapacitation pay at the same time, therefore, the recoupment is correct in accordance with Army Regulation 135-181, paragraph 4-9a. Denial of the application was recommended.
On 16 October 1998 the applicant was provided a copy of the advisory opinion and advised that he could submit a rebuttal within 30 days. He did not respond.
Title 37, United States Code, section 204, governs entitlement for incapacitation pay. For disabilities incurred or aggravated after 29 September 1988, it provides that if the disability continues beyond the termination of military duty, the member is entitled to incapacitation pay based upon demonstrated lost earned income from nonmilitary employment. The amount of such pay would be the lesser of the actual demonstrated lost income or the pay and allowances for a member of the regular component of corresponding grade and years of service.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:
1. Apparently the applicant believes that the garnishment of his pay was directed by the Georgia ARNG because he did not properly reflect his loss of nonmilitary income following his incapacitation. However, contrary to that belief, the evidence of record indicates that the applicant, a noncommissioned officer, accepted both incapacitation pay and drill pay, in violation of Army Regulation 135-181, over a 2-year period of time. The applicant knew, or should have known, that he was being overpaid and timely notified the appropriate officials.
2. Since the applicant did not return the overpayment, the overpayment was properly garnished by the Government. The applicant is not entitled to return of those funds as he requests.
3. The foregoing is supported by the advisory opinion provided by the Chief, NGB.
4. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
Loren G. Harrell
Director
INDEX
CASE ID
AC
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.
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