IN THE CASE OF:	 

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080005128 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that she be paid incapacitation (INCAP) pay in lieu of sick leave.

2.  The applicant states that she was incorrectly charged technician leave for surgery related to a line of duty injury.  She should have received INCAP pay for the period 9 February through 28 March 2006.

3.  The applicant provides a memorandum, dated 6 March 2008, from the Adjutant General’s Office, Commonwealth of Pennsylvania; and an Incapacitation Pay (Initial) Checklist with the six related documents indicated on the checklist (to include a 1 1/2 inch-stack of medical records).  There are two sets of this checklist, all identical except for the DA Form 7574 (Incapacitation Pay Monthly Claim Form), one of which indicates a total projected earned amount of $3,418.98 for the period 1 March through 28 March 2006 and the other a total projected earned amount of $3,087.60 for the period 9 February through 28 February 2006.

4.  The applicant also provides a memorandum, dated 30 October 2007, from the Adjutant General’s Office, Commonwealth of Pennsylvania; a memorandum, dated 1 February 2006, from the applicant with an attached Office of Personnel Management (OPM) Form 71 (Request for Leave or Approved Absence and a 2006 DCPS Pay Processing Calendar); a letter, dated 23 January 2008, from the Defense Finance and Accounting Service (DFAS); a Voluntary Repayment Agreement for Civilian Payroll Indebtedness with an attached Indebtedness Computation Worksheet and Guidance Pertaining to Debt Waivers; and a DD Form 689 (Individual Sick Slip).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Pennsylvania Army National Guard (PAARNG) on 20 December 2001.  She was employed as a military technician with the PAARNG on an unknown date.

2.  On 24 January 2004, the applicant was injured in a motor vehicle accident on her way home from inactive duty training.  She suffered cervical strain, chest contusion, and lumbar strain.  On 23 September 2004, her injuries were found to have been incurred in the line of duty.  

3.  On 1 February 2006, the applicant requested advance sick leave for the period beginning 9 February 2006 and ending 28 March 2006 to undergo and recover from major back surgery.  Her request for advance sick leave was approved on 4 February 2006.  She was a specialist, E-4, at the time.

4.  In a memorandum dated 30 October 2007, an adjutant general with the PAARNG requested that the applicant be paid INCAP pay for the period              9 February to 28 March 2006.  The adjutant general stated that the applicant was erroneously advanced sick leave for that time period when she should have been receiving incapacitation pay in a leave without pay status.

5.  Around January 2008, the applicant had her civilian time and attendance pay account for the pay periods ending 18 February 2006 through 1 April 2006 changed from 261 hours of regular pay to leave without pay.  DFAS then charged her with a debt in the gross amount of $4,831.11.

6.  On 4 February 2008, the applicant agreed to repay her indebtedness of $4,831.11 by payroll deduction in the amount of $25.00 per pay period, to be completely paid within 3 years.

7.  On 6 March 2008, the President of the PAARNG Incapacitation Review Board informed the applicant that the board approved her request for INCAP benefits for the periods 9 through 28 February 2006 and 1 through 28 March 2006.

8.  In the processing of this case, an advisory opinion was obtained from the National Guard Bureau (NGB).  NGB recommended a “contingent disapproval” of the applicant’s request.  NGB noted that Department of the Army Pamphlet    135-381, chapter 2, paragraph “2d(6),” states that it is the Soldier’s decision to 
use or not use leave from his/her civilian job.  Soldiers cannot be forced to use civilian sick leave.  If the Soldier uses any civilian sick leave, he/she will not be reimbursed for that period of time.  In order to receive INCAP pay for the period for which leave was received from his/her civilian job, that leave must be paid back to the employer, if allowed by the employer.  The Soldier must submit documentation reflecting that action and reinstatement of leave.

9.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  She stated that in January 2006 she consulted with her INCAP manager about her options, and she was misadvised that she could not receive INCAP pay during the period in question.  She could not afford to go on leave without pay for that length of time, but her technician supervisor was more than willing to advance her sick leave during that time.  Since then, she learned that INCAP pay was available for the time she lost from work due to her injury.  DFAS restored her sick leave and placed her in a leave without pay status for which she incurred a debt of a little over $4,800.  Once INCAP is approved she plans to pay the remaining balance in full to clear that debt.  

10.  In the processing this case, a second advisory opinion was obtained from DFAS, specifically to clarify the intent of Title 37, section 204(g).  DFAS confirmed that the applicant is entitled to INCAP pay, reduced by the amount of earned income she received in her Federal civilian job for the period 9 February through 28 March 2006.  Further, in consideration of her agreement to pay back that compensation, she is entitled to payment of INCAP pay without reduction of the overpayment of the employment compensation, upon repayment of the entire amount of that overpayment (debt).  If she preferred to be paid now, she could be immediately paid her entitlement to INCAP pay subject to the appropriate reductions for any earned income for the period, including her overpayment of earned income from her Federal civilian employment (not paid back to date).

11.  A copy of the second advisory opinion was provided to the applicant for comment or rebuttal.  The applicant failed to respond within the given time frame.

12.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers) establishes procedures and policies and implements statutory authorities regarding medical, dental, hospitalization, and disability benefits, INCAP compensation, and death benefits, as well as reporting requirements on these entitlements for Reserve Component Soldiers.

13.  Army Regulation 135-381, paragraph 3-2 states that, in order to qualify for Army disability benefits, Soldiers must have incurred or aggravated an injury, illness, or a disease condition while in a duty or travel status.  Paragraph 4-1e 

states prerequisites for entitlement to INCAP pay are inability to perform normal 
military duties or satisfactory demonstration of loss of nonmilitary earned income. Paragraph 4-1g states Soldiers are entitled to a portion of the same monthly pay and allowances as is provided members of the Active Army with corresponding 
grade, length of service, marital status, and number of dependents, for each period the Soldier is unable to perform normal military duties or can demonstrate loss of compensation from nonmilitary income.  

14.  Department of the Army Pamphlet 135-381 (Incapacitation of Reserve Components Soldiers Processing Procedures), paragraph 2-2d(6), states that if the Soldier (a military technician who has the option to receive workmen’s compensation) uses any civilian sick leave, he/she will not be reimbursed for that period of time.  In order to receive incapacitation pay for the period for which leave was received from his or her civilian job, that leave must be paid back to the employer, if allowed by the employer.  The Soldier must submit documentation reflecting the action and reinstatement of leave.   

15.  Title 37, U. S. Code, section 204(g)(1), 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 physically disabled as the result of an injury, illness, or disease incurred or aggravated in the line of duty while performing active duty or inactive duty training.

16.  Title 37, U. S. Code, section 204(g)(2) states that, 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.  In calculating earned income for the purpose of the preceding sentence, income from an income protection plan, vacation pay, or sick leave which the member elects to receive shall be considered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that she was erroneously advised that she was not entitled to INCAP pay for the period 9 February through 28 March 2006.  In a memorandum dated 30 October 2007, an adjutant general with the PAARNG substantiated her contention by stating she was erroneously advanced sick leave for that time period when she should have been receiving incapacitation pay in a leave without pay status.  In addition, on 6 March 2008, the President of the 
PAARNG Incapacitation Review Board informed her that the board approved her request for INCAP benefits for the periods 9 through 28 February 2006 and         1 through 28 March 2006.

2.  Under the provisions of Department of the Army Pamphlet 135-381, the applicant agreed to pay back the civilian leave she was advanced in order to obtain INCAP pay.  In doing so, she incurred a debt of $4,831.11.

3.  One problem with this case is that the applicant agreed to repay her indebtedness of $4,831.11 by payroll deduction in the amount of $25.00 per pay period, to be completely paid within 3 years.  This means that the applicant could be paying as little as $650.00 for the first two years.  The DA Forms 7574 she provided indicated she would have earned about $6,506.58 (but this might have been her total income and not the amount she would have been due in INCAP pay).

4.  To pay the applicant the entire amount of the INCAP pay without first recouping the $4,831.11 might create a windfall for her.  However, in accordance with Title 37, U. S. Code, section 204(g)(2), the total pay and allowances she would be due in INCAP pay shall be reduced by the $4,831.11 (minus that portion of the debt already repaid).

5.  Therefore, the applicant’s records should be corrected to show she applied for INCAP pay for the period 9 February through 28 March 2006; that her request was approved in a timely manner; and that she be paid INCAP pay for that period, reduced, if appropriate, by the amount she still owes as a result of changing her civilian military technician leave to leave without pay.

BOARD VOTE:

____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 all Department of the Army records of the individual concerned be corrected by:

     a.  showing she applied for INCAP pay for the period 9 February through      28 March 2006 and that her request was approved in a timely manner; and

     b.  after DFAS first audits her pay records, paying her INCAP pay for the period 9 February through 28 March 2006, reduced, if appropriate, by the amount she still owes as a result of changing her civilian military technician leave to leave without pay.



      ________XXXX______________
       	   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.

ABCMR Record of Proceedings (cont)                                         AR20080005128



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ABCMR Record of Proceedings (cont)                                         AR20080005128



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