IN THE CASE OF:	  

		BOARD DATE:	  10 May 2011

		DOCKET NUMBER:  AR20100015737 


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 his periods of incapacitation pay be corrected.

2.  The applicant states, in effect, he requested incapacitation pay for June through December 2006 but he was granted pay for June through December 2007 which resulted in recoupment of his pay.  He states he has not received his correct incapacitation pay due to a paperwork error.

3.  The applicant provides:

* Informal line of duty endorsement 
* Letter from Pinnacle Foods Corporation 
* Monthly Training Schedule for Company A, 634th Forward Support Battalion
* DA Form 7574-2 (Soldier's Acknowledgment of Incapacitation Pay Counseling)
* Seven DA Forms 7574 (Incapacitation Pay Monthly Claim Form)
* Medical Record 
* DA Form 3349 (Physical Profile)







CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that after having prior service he enlisted in the Army National Guard (ARNG) on 30 May 2003.

2.  An informal line of duty endorsement shows he injured his left forearm on 24 January 2005 and the injury was approved as in the line of duty on 9 February 2005.

3.  On 15 February 2006, he acknowledged receipt of incapacitation pay counseling in conjunction with his request for incapacitation pay.

4.  On 29 November 2007, he was honorably separated from the Illinois ARNG due to expiration term of service in pay grade E-4.

5.  On 22 May 2008, in a letter written to the applicant the Defense Finance and Accounting Service (DFAS) indicated that DFAS did not dispute any duty performed during a certain period, but he could not be paid for the same periods twice.  His former ARNG unit was required to collect back established debts before the Army could pay him incapacitation pay for June through December 2007.

6.  In the processing of this case a member of the Board's staff contacted DFAS and DFAS responding by indicating that the applicant's account was paid in full as of 23 April 2010.

7.  In an e-mail from the applicant's unit it was stated that DFAS had collected all payments given to the applicant for the period June through December 2007.  This was due to the National Guard Bureau (NGB) erroneously approving him for incapacitation pay for the period June through December 2007 instead of June through December 2006.

8.  A Leave and Earnings Statement (LES), dated 25 January 2008, shows the applicant's incapacitation pay for 2007 was collected to pay his 2006 incapacitation pay.

9.  Army Regulation 135-381 and Title 37, U.S. Code, section 204, provides for continuation of pay and allowances under certain circumstances to Reservists who are disabled in line of duty as a direct result of the performance of their duties.  To receive continuation of pay, referred to as incapacitation pay, reservists must either be unable to perform their normal military duties or be able to show a loss of nonmilitary income.  If the reservist continues to work at his or her civilian job, the amount of money earned is deducted from the incapacitation pay.  Entitlement to incapacitation pay is limited to 6 months unless the Secretary of the Army finds that it is clearly in the interest of fairness and equity to extend the incapacitation pay.  Only in the most meritorious cases will incapacitation pay be extended past the 6-month limitation.

10.  In the processing of this case an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  The advisory official recommended disapproval of the applicant's request for incapacitation pay for June through December 2006.  The NGB indicated he was authorized incapacitation pay for the months of February through July 2006 by the Illinois ARNG.  The NGB further indicated he received incapacitation pay for February through May 2006 except for those days he performed duty during that period.  Incapacitation pay was requested for June and July 2006 in a 2007 payroll because that pay was never received by the applicant.  However, the applicant was mistakenly paid for June and July 2007 instead of June and July 2006.

11.  The NGB further stated the applicant submitted a request to the State Incapacitation Review Board in 2009 requesting incapacitation pay for an extended period beyond the initial 6 months he was authorized.  The NGB stated his request (for the extended period) was denied due to failure to keep doctor and therapist appointments past his initial 6 months of incapacitation pay.  Additionally, the NGB stated that sufficient evidence had not been provided to make a determination concerning his case.

12.  The applicant was furnished a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

DISCUSSION AND CONCLUSIONS:

1.  It appears the applicant was authorized 6 months of incapacitation pay for the period February through July 2006.  However, he was not paid for June and July 2006 and, the approval document inadvertently specified the incapacitation pay was for 2007 instead of 2006.  This resulted in the applicant's drill pay being collected during the time in question in 2007.  

2.  However, the applicant's LES verifies that the 2007 incapacitation pay was collected back from him and it was used to pay his 2006 incapacitation pay.  It is assumed this correction resulted in him being repaid the drill pay.

3.  Since the applicant had already been paid for February through May 2006, he was probably overpaid and a collection had to be initiated for the excess.

4.  While the applicant requested an extension of incapacitation pay for a period after July 2006, this request was disapproved.

5.  While the aforementioned errors resulted in a convoluted picture of the applicant's incapacitation pay history, it appears his pay was appropriately adjusted and he was (finally) properly paid.

6.  In view of the foregoing, there is no basis for granting the applicant’s request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   __X_____   ___
               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)                                         AR20100015737



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ABCMR Record of Proceedings (cont)                                         AR20100015737



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