IN THE CASE OF:	  

		BOARD DATE:	    1 December 2011

		DOCKET NUMBER:  AR20110017979 


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, the widow of a deceased former service member (FSM), requests the FSM be granted 6 months of incapacitation (INCAP) pay.

2.  The applicant states:

* The FSM was eligible to receive 6 months of INCAP pay but since he was no longer in the system he could not be paid
* The FSM's original request for INCAP pay was made in 2005 after his return from Iraq
* The FSM returned from Iraq with medical issues and he was unable to work at his privately owned business
* The FSM diligently requested INCAP pay through his unit
* There was an issue of a line of duty (LOD) and the medical experts deemed that cancer would not be considered in the LOD
* In February 2010, the Department of Veterans Affairs (DVA) rated the FSM with a 100 percent (%) disability rating percentage and stated in their correspondence that a clear and unmistakable error was made in regard to his cancer
* She sent this information to the National Guard Bureau (NGB) and they approved 6 months of INCAP pay
* In August 2010, they were told they would get the money in September 2010 but it was discovered the FSM was no longer in the pay system
* Feeling desperate the FSM convinced their 22-year old son to get certified to be a pest control technician to keep the family business operating
* On 17 March 2011, the FSM and their son left home for training (pest control certification) and were killed

3.  The applicant provides:

* Their Marriage license
* The FSM's Death Certificate
* The FSM's Notification of Eligibility for Retired Pay at Age 60 (15-Year Letter), dated 20 February 2009
* The FSM's retirement orders
* The FSM's NGB Form 22 (Report of Separation and Record of Service) for the period ending 20 February 2009

CONSIDERATION OF EVIDENCE:

1.  Having prior active service in the Regular Army and inactive service in the Army National Guard, he enlisted in the Georgia Army National Guard (GAARNG) on 28 February 2001.  He was ordered to active duty on 6 December 2004 in support of Operation Iraqi Freedom.  He served in Iraq from 17 May 2005 to 5 May 2006.  He was released from active duty on 4 June 2006.  

2.  He was honorably discharged from the GAARNG on 20 February 2009 by reason of being medically unfit for retention.

3.  He was placed on the retired list in the rank/grade of sergeant (SGT)/E-5 on
6 March 2010.

4.  In December 2010, the FSM applied to the Army Board for Correction of Military Records (ABCMR) for INCAP pay.   However, based on a recommendation from the NGB, his case was administratively closed without action on 2 May 2011 and he was instructed to request INCAP pay through the GAARNG.

5.  However, unbeknown to the ABCMR, the FSM had died on 17 March 2011.

6.  On 9 September 2011, in the processing of this case an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  The advisory official recommends approval of the applicant's request for INCAP payment for
6 months.  The advisory official states:

	a.  Based on information provided by the NGB's LOD section, there is an approved LOD in the LOD module.

	b.  The GAARNG confirmed the FSM's eligibility for the INCAP entitlement.

	c.  According to the GAARNG, once the LOD was approved an attempt was made to pay the FSM but since he had already separated from the service and he was no longer in the Standard Installation/Division Personnel System, the GAARNG no longer had the authority to pay.

	d.  He recommends the FSM's file be reactivated and the GAARNG pay the FSM's spouse or next of kin the INCAP pay for which he is entitled. 

	e.  Army Regulation 135-381 (Incapacitation of Reserve Component (RC) Soldiers), section 2-1b(3)(d) states "Once the Soldier is determined to be incapacitated by incurring or aggravating an injury, illness, or disease, orders will not be revoked, amended, or extended while on AD [active duty] for the sole purpose of processing under this regulation."  If the Soldier remains on active duty orders, he is not authorized to receive INCAP pay.

	f.  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 line of duty while performing active duty."

	g.  Army Regulation 135-381, section 1-13(9)(i) states "Regardless of the amount of lost income claimed by a Soldier, the maximum amount of military pay and allowances payable to a Soldier will be limited to the amount otherwise due a Soldier serving on AD with the same grade and years of service."

	h.  The State concurs with this recommendation.

7.  A memorandum, dated 28 November 2011, from the GAARNG to the NGB states:

	a.  per conversation between Georgia G-1 and NGB, the GAARNG agreed to pay six months of INCAP pay to the FSM based on the discovery of a second medical condition that justifies the payment for the period 1 October 2007 through 31 March 2008.

	b.  Since the FSM is deceased, retired, and the time period is four years ago, NGB and the Defense Finance and Accounting Service will need to assist with the payment.

	c.  Georgia G-1 has been advised by the U.S. Property and Fiscal Office that they are unable to do this sort of transaction given the variables mentioned above.

8.  Department of Defense Directive (DODD) 1241.1, paragraph 4.5, states that the Military Departments shall authorize pay and allowances, to the extent permitted by reference (c), for an RC member who is not medically qualified to perform military duties, as determined by the Secretary concerned, because of an injury, illness, or disease incurred or aggravated in the line of duty, or to provide pay and allowances to a member who is fit to perform military duties, but experiences a loss of earned income because of an injury, illness, or disease incurred or aggravated in the line of duty.  This is commonly referred to as incapacitation pay.

DISCUSSION AND CONCLUSIONS:

Evidence shows the GAARNG confirmed, in August 2010 after he had been discharged from the ARNG, the FSM's eligibility for the 6 months of INCAP pay entitlement for the period 1 October 2007 through 31 March 2008.  Based on the NGB advisory opinion recommendation and the 28 November 2011 GAARNG memorandum, the FSM's spouse should be paid the INCAP pay for which the FSM is entitled. 

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 the State National Guard Records and the Department of the Army records of the individual concerned be corrected by:

	a.  showing the FSM's request for INCAP pay was approved in a timely manner; and

	b.  paying to the applicant the INCAP pay for the period 1 October 2007 through 31 March 2008 which the FSM was entitled to receive.




      __________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)                                         AR20110017979



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ABCMR Record of Proceedings (cont)                                         AR20110017979



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