IN THE CASE OF

		BOARD DATE:	  18 December 2012

		DOCKET NUMBER:  AR20110021766 


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 correction of his records to show his entitlement to 6 months of incapacitation (INCAP) pay.

2.  He states:  

	a.  during his deployment to Afghanistan he fell and injured his back and shoulder on 10 October 2010.

	b.  while at the mobilization (MOB) site, he was told he needed surgery for both injuries and should remain at the MOB site in a Title 10 (active duty) status for up to an additional 3 months for medical testing and associated workups.

	c.  he was erroneously advised by the Wyoming Army National Guard (WYARNG) MOB officer not to remain, but to return to his unit and be placed back on Title 10 status in order to receive care and convalesce from both surgeries.

	d.  upon terminating his Title 10 status and returning to the WYARNG, he was told attempts to enroll in the Medical Retention Processing 2 (MRP2) program failed and the national board declined to place him back in a Title 10 status in order to receive care.

	e.  the WYARNG then offered him INCAP pay as a way to have the surgeries and receive care without incurring a financial debt as a result of losing his civilian pay.
	f.  he previously requested an extension in order to continue to serve as a pilot until reaching age 62, but it was denied and his retirement was set at age 60, effective 31 August 2011.

	g.  he was unaware that by retiring, he would no longer be eligible for INCAP pay, but the State did not inform him or take actions to explain that in order to receive the surgery and INCAP he had to be in an active status.

	h.  his back surgery was performed on 28 September 2011 and he was unable to work for 12 weeks and would be unable to work for 12 to 16 weeks after his upcoming shoulder surgery.

	i.  he is now faced with a large financial burden from having the surgery and believes it is no fault of his own that he became ineligible for INCAP pay based on the State's poor guidance and inattention to detail.

3.  The applicant provides:

* DA Form 2173 (Statement of Medical Examination and Duty Status)
* DD Forms 689 (Individual Sick Slip)
* DA Form 4186 (Medical Recommendation for Flying Duty)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Standard Form (SF) 513 (Consultation Sheet)
* Self-authored statements
* six letters from the Regional West Physicians Clinic - Neurosurgery
* a letter from Western Plains Neurosurgery
* Orders

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 19 August 1951 and after prior enlisted service, was appointed as a warrant officer in the WYARNG on 7 December 1981.  On 23 December 2009, he was ordered to active duty in support of Operation Enduring Freedom as a 155E0 (C-12 Pilot) and was released from active duty on 28 December 2010 upon completion of required active service. 

2.  He submitted:
	a.  a DD Form 689, dated 10 October 2010, which shows he went on sick-call after a fall for shoulder and lower back pain.

	b.  a DA Form 4186, dated 10 October 2010, which shows he received a temporary medical suspension from performing flight duties as a pilot.

	c.  an SF Form 513, dated 15 October 2010, which shows he was scheduled for a consultation with Physical Therapy/Orthopedics in regard to his chronic right shoulder pain of less than 1 year, which worsened throughout the deployment.

	d.  a DA Form 2173, dated 27 September 2001, which shows he was treated as a out-patient on 10 October 2010 after he "fell on stairs from his lodging, went on sick call, and was seen by the flight surgeon, and was sent to the hospital for x-ray."  Line of duty (LOD) was checked "yes."

	e.  a letter from Western Plains Neurosurgery, dated 4 April 2011, which stated he was a helicopter pilot who was employed by the Regional West Medical Center who has had problems with his right buttock and hip for several years that radiated down into his right leg following the sciatic distribution for several years now and indicated that his symptoms did not warrant immediate surgical intervention.

	f.  four letters from the Regional West Physicians Clinic - Neurosurgery, dated 2, 5, 17 May and 21 July 2011, respectively, which stated he had right shoulder pain after falling down the stairs while he was deployed and a long history of back pain which has worsened over the years. 

	g.  Orders Number P09-940623, issued by the U.S. Army Human Resources Command, St. Louis, MO, dated 7 September 2011, which show he was placed on the retired list on 19 August 2011.  His NGB Form 22 shows he completed 
34 years, 3 months, and 25 days of total service for pay.  

	h.  a checklist which shows he was scheduled for a lumbar fusion on 28 September 2011. 

	i.  three pages from the Horizon West Plains Physician Portal which show he had part one of a two-part operative procedure for his L2-L3, L3-L4, and L4-L5 degenerative joint disease and lumbar scoliosis, lumbar spondylosis, lumbar radiculitis, and back pain on 28 September 2011. 

	j.  his inpatient operative report from the Regional West Medical Center, which shows he shows he had part two of a two-part operative procedure for his L4-L5 central laminectomy, partial facetectomy, foraminotomy, decompression of cauda equina, L2-L3 and L4-L5 nonsegmental instrumentation with screws and rods, Mayfield, and fluoroscopy on 30 September 2011.  On 4 October 2011, he was discharged from the hospital.

	k.  a prescription slip from the Regional West Physicians Clinic, dated 
3 October 2011 which stated he would be out of work for approximately 8 to 
12 weeks.

3.  An advisory opinion was obtained from the NGB in connection with the case.  The NGB official recommended the applicant's request be disapproved.  He added that the applicant was retired at the time of his surgery and INCAP pay is provided to Soldiers if they are unable to perform their military functions as a result of injury.  

4.  The advisory opinion further states:

	a.  prior to the applicant's retirement, he received an LOD injury for his shoulder and back while deployed to Afghanistan on 10 October 2010.  He was released from Title 10 status at the end of his scheduled deployment.  Later attempts by the WYARNG to enroll him in the MRP2 program were unsuccessful.

	b.  the applicant suggested the WYARNG suggested INCAP pay as a way to assist him financially after he had his surgery.  After his attempt for an age extension to 62 was denied by the WYARNG, he went forward with his surgery the following month after his retirement - 28 September 2011.  The State claims the age waiver was denied based on end strength/force management issues.  Additionally, the State claims it suggested to the applicant that he attempt to have the surgery before his retirement and that TRICARE picked up all associated health care costs related to the surgery.

	c.  the applicant claimed he was misinformed by the State regarding eligibility for INCAP pay and had no knowledge his looming retirement would affect his ability to receive INCAP pay, there is no supporting evidence that the State misled the applicant in any way related to his medical situation/INCAP pay.  According to military regulations related to INCAP pay, the Soldier must demonstrate a loss of performing military duties, which he didn't considering he was retired at the time of the surgery and thereafter.

	d.  the State concurred with the recommendation.

5.  Army Regulation 135-381 (Incapacitation of Reserve Component (RC) Soldiers) provides that:

	a.   the objective of the RC Incapacitation System is to compensate members of the RC who are unable to perform military duties and/or who demonstrate a loss in civilian earned income as a result of an injury, illness, or disease incurred or aggravated in the line of duty.  

	b.  INCAP 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.  

	c.  the member's entitlement to healthcare and pay and allowances under this regulation will terminate on the date that the member is separated or retired.

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, the purpose of INCAP pay is to compensate members of the RC who are unable to perform military duties and/or who demonstrate a loss in civilian earned income as a result of an injury, illness, or disease incurred or aggravated in the line of duty.  

2.  Evidence shows the applicant injured his back and shoulder while deployed in support of Operation Enduring Freedom and was entitled to full pay and allowances during this period.  There is no evidence he lost civilian earned income as a result of his injury prior to 19 August 2011.

3.  Orders show the applicant was retired and placed on the retired list on 19 August 2011.  Evidence submitted by the applicant shows he did not have surgery until 30 September 2011, more than a month after he retired.  As a result of his retirement, he was no longer entitled to be compensated for loss of earned civilian income.  Therefore, he was not eligible for receipt of INCAP pay following his surgery.

4.  In view of the foregoing, there is insufficient evidence to grant him the requested relief.

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)                                         AR20110021766





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ABCMR Record of Proceedings (cont)                                         AR20110021766



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