IN THE CASE OF:	  

		BOARD DATE:	  6 January 2011

		DOCKET NUMBER:  AR20100022642 


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 military records be corrected to show he was approved for incapacitation (INCAP) pay for the period he was not authorized to perform Individual Duty Training (IDT) in the Army National Guard (ARNG).

2.  The applicant states:

a. although his medical condition was determined to be in the line of duty
(LOD), he did not receive INCAP pay for the period he was not allowed to perform IDTs, nor was he processed by a medical or physical evaluation board (MEB/PEB);

b. he received pay for his active duty service performed from 20 January
through 5 June 1998 and INCAP pay for the months August through October 1998; and

c. he was discharged from the Puerto Rico Army National Guard (PRARNG)
on 2 November 2002.

3.  The applicant provides:

* Army Review Boards Agency letter
* National Guard Bureau (NGB) memorandum
* NGB electronic mail (e-mail) documents
* Official Military Personnel File (OMPF) document extracts
* United States Postal Service Express Mail document
CONSIDERATION OF EVIDENCE:

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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 16 September 1997, the applicant enlisted in the PRARNG for a term of 8 years.  PRARNG Order Number 006-021 dated 14 January 1998 shows the applicant was ordered to active duty for training (ADT) on 20 January 1998.

3.  On 20 January 1998, the applicant entered active duty.  A DA Form 2173 (Statement of Medical Examination and Duty Status) shows that during physical training on 3 March 1998, the applicant was bitten by a mosquito and one hour later he was complaining of a rash on his fingers and inner thighs.  It also shows he was seen and received medical treatment at the aid station at that time.

4.  On 5 June 1998, the applicant was honorably discharged from active duty under the provisions of Army Regulation 635-200, paragraph 5-11, by reason of “failure to meet procurement medical fitness.”  The DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 months and 6 days of creditable active service.

5.  On 14 July 2000, the Adjutant General, PRARNG, approved the applicant’s LOD determination.

6.  On 2 November 2002, the applicant was discharged from the PRARNG and as a Reserve of the Army, by reason of defective enlistment agreement.  The NGB Form 22 shows he completed 4 years and 6 days creditable military service.

7.  On 15 August 2008, the applicant appealed to this Board for receipt of INCAP pay.  During the processing of that case an advisory opinion was received from the Acting Chief, Personnel Division, NGB dated 27 January 2009, which indicated the following:

a. The applicant’s request must be returned without action because he must
coordinate with the PRARNG in order to receive INCAP pay;

b.  coordination with the NGB LOD section verified the appropriate 
documents were provided by the applicant to the PRARNG at the time and he should have been paid INCAP for the incident that occurred on 3 March 1998; however, the PRARNG returned the documents to the Soldier without action;

c. the applicant must provide all of the documents to the PRARNG again to
process INCAP pay; and

d. according to the NGB Comptroller’s Division (NGB-ARC), if the ABCMR or
NGB-LOD recommends the Soldier receive INCAP pay outside the current fiscal year due to no fault of the Soldier, the State must pay the Soldier from previous years funds available.

8.  On 1 December 2008, the Personnel Action Section Noncommissioned Officer in Charge (NCOIC), PRARNG, forwarded the applicant’s request for INCAP pay and indicated:

a. the applicant should have been paid INCAP pay from November 1998 to
November 2002;

b. records shows the applicant was not allowed to perform IDT’s due to a
medical condition incurred in LOD approved on 14 July 2000;

c. applicant incurred an LOD medical condition while on ADT;

d. applicant received INCAP pay for August – October 1998 and from that
point he did not receive any income from IDT or INCAP and he was not allowed to perform IDT through his date of separation; and

e.  due to the failure of applicant’s unit and NGB to submit required proper
documentation to cover his incapacitation period as required by Army Regulation 135-381, paragraph 1-6, the applicant incurred a Serviceman's Group Life Insurance (SGLI) debt for the period in question.

9.  On 9 July 2009, the Defense Finance and Accounting Service (DFAS) determined:

a. no monies were due as a result of the applicant’s claim since he initially
filed his claim with the ABCMR; and

b. no ruling from the ABCMR had been received and without such ruling 
DFAS could not take action.

10.  On 13 October 2010, in response to the applicant’s request, the Lead Defense Travel Administrator, PRARNG, issued a memorandum to reopen the applicant’s request to the ABCMR.  He indicated DFAS could not take action on the applicant’s request without a ruling by the ABCMR and that the local finance office could not process the applicant’s claim because he was no longer in their system and further prohibited from doing so by the Barring Act because the case was over 6 years old.

11.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers) establishes 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 these entitlements for Reserve Component (RC) Soldiers.  It provides:

a. chapter 1, paragraph 1-6, that a member of the Reserve component
incurring or aggravating any injury, illness, or disease in the line of duty is entitled to medical and dental care, incapacitation pay, and travel and transportation incident to medical and/or dental care, in accordance with Title 37 U.S. Code (USC) 204 and 37 USC 206.

b. paragraphs 1-10 and 1-11 state that commanders will complete the
DA Form 2173 within sufficient time to ensure that pay and allowances will commence within 30 days of the date that the injury, illness, or disease was reported, unless there is clear and convincing evidence that the injury, illness, or disease was not incurred or aggravated in a duty status.  Incapacitation 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.

12.  Army Regulation 135-381, paragraph 4-1e states that prerequisites for entitlement to incapacitation pay are inability to perform normal military duties or satisfactory demonstration of loss of nonmilitary earned income.  In the latter case, the burden to prove the loss rests with the Soldier.  IDT pay is considered to be military income.

13.  Army Regulation 135-381, paragraph 4-1g states Soldiers are entitled to a portion of the same monthly pay and allowances as is provided to 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 Defense Instruction (DODI) 1241.1 (Reserve Component Incapacitation System Management) states members authorized incapacitation pay will not be allowed to attend IDT or to acquire retirement points for drills.  

15.  DODI 1241.2 states incapacitation pay in any particular case may not be made for more than 6 months without review of the case by the Secretary concerned to ensure that continuation of military pay and allowances is warranted under this Instruction and to determine whether the member should be referred to the Disability Evaluation System.  Such review shall be made every   6 months.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his military record should be corrected to show entitlement to INCAP pay.

2.  The available evidence shows that the applicant met the eligibility criteria for receipt of incapacitation pay during the period he was not authorized to attend IDT, from November 1998 to November 2002, as evidenced by the NGB advisory opinion and additional evidence provided by PRARNG officials.

3.  Furthermore, the available evidence shows that the applicant’s unit did not submit a DA Form 2173 within 30 days of the applicant’s injury or illness.  This also resulted in nonpayment of INCAP pay. 

4.  In view of the above it would be equitable to correct the applicant’s records to show his entitlement to incapacitation pay for the period from November 1998 to November 2002, and to pay him all monies due.

BOARD VOTE:

___X____  ____X___  ____X___   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 State Army National Guard records and all Department of the Army records of the individual concerned be corrected by:

	a.  showing the applicant’s claim for incapacitation pay from 1 November 1998 to 2 November 2002 was approved and processed in a timely manner; and

	b.  paying the applicant all due incapacitation pay as a result of the above correction.



      _______ _   _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)                                         AR20100022642





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ABCMR Record of Proceedings (cont)                                         AR20100022642



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