IN THE CASE OF:	  

		BOARD DATE:  11 September 2012

		DOCKET NUMBER:  AR20110023859 


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, in effect, payment of incapacitation (INCAP) pay from October 2008 through May 2011.

2.  The applicant states:

	a.  Title 37, U.S. Code, section 204(g)(1) provides for pay and allowances if disabled from a service-connected injury or illness.  Army Regulation 135-381 (Incapacitation of Reserve Component (RC) Soldiers) also provides for this entitlement.

	b.  in October 2008, he was erroneously released from active duty (REFRAD) for medical issues.  The REFRAD memorandum noted he was being released due to a pre-existing medical condition.  Although the original injury was not military-related, it was later proven to be aggravated by an injury sustained in Iraq in 2004 and aggravated while on active duty earlier in 2008.

	c.  upon return to his home unit in October 2008, the medical board process began.  A Line of Duty (LOD) investigation was completed by the command surgeon in March 2009 but it was not finally approved until August 2009.  The unit commander requested a Fit-for-Duty examination that same month.  Despite his efforts to keep the process moving, the process stopped for unknown reasons or was lost.


	d.  upon reassignment his gaining unit initiated the process once again by requesting a Duty-Related Physical Evaluation Board (PEB) in January 2010.  This latest effort ultimately resulted in him being retired due to service-connected disability.

	e.  his involuntary call to active duty directly caused the loss of his civilian employment.  He had been hired as a chief of police in January 2008.  In May 2008 he was involuntarily "cross-leveled" and sent to a 2-month long military school prior to mobilization.  His call to active duty greatly upset his employer.  Upon his REFRAD, they requested a copy of his release orders.  Noting the medical nature of the REFRAD, he was terminated later that same month.  Though he won the employer's appeal to his unemployment benefits, his limited period of actual employment prevented any civil action against the employer.

	f.  he believes an extension of the 6-month limit for INCAP pay is warranted since the length of time for the process to be completed (from REFRAD in October 2008 to disability retirement in May 2011) was not due to any fault or lack of effort of his own.

3.  The applicant provides: 

* REFRAD orders
* Active duty orders
* LOD
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* Fit-for-Duty Examination
* Retirement orders
* Financial documents

CONSIDERATION OF EVIDENCE:

1.  Having prior active enlisted service in the Regular Army (RA) and inactive service in the Army National Guard (ARNG), the applicant was appointed a second lieutenant in the U.S. Army Reserve (USAR) on 14 May 1987.  He was promoted to major, Chemical Corps, on 1 July 2001.

2.  In August 2008, he was ordered to active duty for training.  On 10 September 2008, he was ordered to active duty for mobilization in support of Operation Iraqi Freedom (OIF).


3.  Two DA Forms 2173, dated 19 July 2009, indicate the applicant:

* sprained his left knee and ankle while playing basketball in Iraq; he was examined on 9 June 2004
* presented himself to clinic complaining of low back pain, aggravated by the wear of Interceptor Body Armor (IBA) and marching; he was prohibited from ruck marching during the period June - September 2008

4.  A memorandum issued by the Walson Army Medical Support Element, Fort Dix, NJ, dated 30 September 2008, states:

* The applicant would be REFRAD and returned to his unit of assignment
* He was on active duty for 25 days or less with a pre-existing condition and based on the results of the medical evaluation he did not meet retention standards and required his parent unit to conduct a Medical Evaluation Board (MEB) for prior LOD-related conditions of fitness for duty evaluation

5.  He was REFRAD on 10 October 2008.

6.  On 20 January 2010, the applicant requested a Duty-Related PEB.

7.  His officer evaluation report for the period 16 December 2009 through              4 December 2010, during which period he served as the battalion executive officer for the 468th Chemical Battalion, shows that, while he was on a profile, he had no issues with performing his duties.

8.  His MEB/PEB proceedings are not available for review.  However, a memorandum to the applicant from the U.S. Army Physical Disability Agency (USAPDA), dated 1 April 2011, states in accordance with the findings and recommendation of the USAPDA he was found to have a disability and would be permanently retired with a disability rating of 30%.

9.  On 6 May 2011, he was retired and placed on the Retired List.

10.  In the processing of this case, on 25 July 2012, an advisory opinion was obtained from the Deputy Chief of Staff, G-1, U.S. Army Reserve Command, Fort Bragg, NC.  The advisory official recommends disapproval of the applicant's request for INCAP pay for the period October 2008 to May 2011.  The advisory official states:

	a.  in accordance with Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers), a Soldier is entitled to INCAP pay for an "LOD" injury in which the Soldier is unable to do his or her military and/or civilian duties;
	b.  the applicant received civilian income of $33,579.91 in 2008;

	c.  the applicant started to receive unemployment compensation in 2008 through 26 July 2010;

	d.  the applicant continued to perform his military duties during the period he is claiming incapacitation, which disqualifies him for INCAP pay tier 1; and

	e.  the applicant was also unemployed; therefore, he would not qualify for INCAP pay tier 2 since there was no loss of civilian income.

11.  On 25 July 2012, a copy of the advisory opinion was furnished to the applicant to allow him the opportunity to submit comments or a rebuttal.  On
14 August 2012, he responded.  In summary, he stated:

	a.  His claim is based on the fact he should not have been released from active duty in October 2008 and he is entitled to pay and allowances.

	b.  At the time of his REFRAD he had been on active duty more than 25 days, contrary to the memorandum upon which his REFRAD order was based.  At the time of his REFRAD, there existed sufficient evidence in his medical records present at Fort Dix that demonstrated his condition was aggravated by service.  Due to the service-connection, he should have been retained on active duty in order to proceed with the MEB and any other resulting actions.  The memorandum that resulted in his REFRAD order indicated he was not fit for retention, not just unfit for deployment.

	c.  The advisory opinion indicates he was not entitled to pay because he was not incapacitated, pointing to other income sources.  At the time he could not simply refuse to attend drills in hopes of gaining INCAP pay 3 years after the fact.  It is for that reason he included as much evidence of income as he possibly could.  Contrary to the advisory opinion, he was not performing all of his military duties during this period.  Though he was engaged in a lengthy MEB process, he was not labeled incapacitated until medically retired in May 2011.  He was provided a severely limiting physical profile.  From that time until his medical retirement in May 2011 he continued to drill and perform annual training.  As a mid-level commissioned officer it was easy for him to avoid strenuous activities.  He was prevented from participating in field exercises, weapons qualification, riding in tactical vehicles, and physical training.  As long as he was capable of periodically switching from standing to sitting he could perform limited administrative duties that do fall in line with a major's responsibilities.

	d.  His physical activities were severely restricted beginning in October 2008 due to the medical issues for which he was ultimately retired.  As such, he was 
required to continue attending drills and other training events in a restricted capacity.  Had he been retained on active duty in October 2008 instead of erroneously being REFRAD, this would not have been an issue.

	e.  He understands the rush to release non-qualified Soldiers at the mobilization station; however, there was sufficient documentation at the time of his REFRAD that indicated the medical issues were aggravated by military service to include the service during pre-mobilization and mobilization itself as well as the Civil Affairs course that preceded the pre-mobilization and mobilization orders.  He should not have been released prior to initiating the MEB process.  Removing him from active duty and sending him back to his home unit to initiate the MEB was the priority when in fact the MEB process should have begun at Fort Dix.

	f.  He recognizes that the appropriate Federal statute restricts such pay and entitlements to 6 months but the statute also provides for extending the period.  He believes his situation warrants such an extension.  Responsibility for this error lies with the medical processing at Fort Dix.  Had appropriate personnel reviewed his orders and medical records and not been in a rush to send unfit Soldiers home, they would have presumably noticed the time on active duty and service connection to his condition.  Had proper procedure been followed, the entire process could have been completed within 60 to 90 days at Fort Dix instead of the 30 months it took back at home station.

	g.  The unit to which he returned after REFRAD began the process and he remained engaged throughout the entire process.  Despite his personal efforts to ensure the process moved along, his case fell through the cracks of a deactivating General Officer command roughly 14 months after the process was begun.  Being told it would be a 60 to 90 day process, he filed a congressional request when the unit formally deactivated; however, no record of his MEB could be found at any level.  His new unit initiated another MEB from scratch prior to the congressional reaching command channels.  His Member of Congress was satisfied with that response but it was still almost 1 1/2 years before the process was completed and he was finally retired.

	h.  His civilian employment was terminated in October “2011” (possibly intending to say 2010) as a direct result of this involuntary call to active duty and resulting medical disqualification.  It was not until June “2010” (possibly intending to say 2011) that he gained full-time employment, at almost half his previous salary.

12.  Army Regulation 135-381 establishes policies regarding INCAP pay for Soldiers of the ARNG, ARNG of the United States, and the USAR.  It states:

	a.  Tier 1 INCAP pay refers to claims by Soldiers who are unfit to perform their military duties as a result of an injury, illness, or disease caused by military service.  A determination of fitness for duty must be made by a military medical physician.  Eligible Soldiers are paid full military pay and allowances, less any civilian earned income received during the month of the claim, and are not eligible to draw retirement points. 

	b.  Tier II INCAP pay refers to claims by Soldiers who are determined fit to perform their military duties by a military medical physician but who are unable to perform their civilian jobs and can demonstrate a loss of civilian earned income.  Eligible Soldiers will be reimbursed for lost civilian earned income up to full military pay and allowances and are eligible to draw retirement points.

	c.  In paragraph 1-13a that Soldiers are entitled to a portion of the same monthly pay and allowances as are provided members of the Active Army with corresponding grade, length of service, marital status, and dependent status for each period the Soldier is unable to perform military duties (Tier l cases) or can demonstrate loss of compensation from civilian earned income (Tier II cases).  Maximum amount payable for any given period is an amount equivalent to military pay and allowances for the period in question.

	d.  In paragraph 1-9 that members able to perform military duties, but demonstrating a loss of earned income as a result of an in the line of duty incapacitation, will be compensated for lost earned civilian income in the amount not to exceed military pay and allowances for which the member would be entitled if serving on active duty.

	e.  In chapter 4 that Title 37, U.S. Code, section 204, provides authority for continuation of pay and allowances under certain circumstances to Soldiers who are disabled in the LOD from injury, illness, or disease.  For the purposes of this regulation such continuation of pay and allowances is referred to as "INCAP."  Prerequisites for entitlement to INCAP pay are inability to perform normal military duties or satisfactory demonstration of loss of nonmilitary earned income.  On REFRAD or termination of inactive duty for training, a Soldier may qualify for this entitlement.  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.  Soldiers will not be issued active duty orders in place of INCAP pay as a means of providing benefits to which they might otherwise not be entitled.

	f.  In paragraph 7-2a that Soldiers who incur or aggravate an injury, illness, or disease while on orders for more than 30 days may elect to extend on active duty until treatment is completed.  Chapter 2 states that RC Soldiers who incur or aggravate an injury, illness, or disease while participating in training may be treated in a medical treatment facility or be provided medical care elsewhere at Government expense.  Soldiers are authorized follow up medical care for injury, illness, or disease incurred or aggravated in LOD after completion of active or inactive duty training.

13.  Department of Defense Directive 1241.1, paragraph 4.5, states that the Military Departments shall authorize pay and allowances, to the extent permitted, 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 INCAP pay.

14.  The Department of the Army Personnel Policy Guidance for Overseas Contingency Operations states mobilized Soldiers who fail to meet medical deployment standards within the first 25 days of their mobilization may be release from active duty.

DISCUSSION AND CONCLUSIONS:

1.  The governing regulation states that Tier 1 INCAP pay refers to claims by Soldiers who are unfit to perform their military duties as a result of an injury, illness, or disease caused by military service.  The regulation states that Tier II INCAP pay refers to claims by Soldiers who are determined fit to perform their military duties by a military medical physician but who are unable to perform their civilian jobs and can demonstrate a loss of civilian earned income.

2.  There is some confusion about his civilian pay.  The advisory opinion indicated the applicant received civilian income of $33,579.91 in 2008 and he received unemployment compensation from 2008 through 26 July 2010.  He stated in his rebuttal to the advisory opinion that his civilian employment was terminated in October “2011” (although he might have meant 2010).

3.  His officer evaluation report shows that he continued to perform his military duty, in a field grade officer position, during the time period he is claiming incapacitation, which disqualifies him for INCAP pay tier 1.

4.  Since he was unemployed he had no income; therefore, there was no loss of civilian income.  As such, he would not qualify for INCAP pay tier 2.

5.  He was identified as failing to meet medical deployment standards on           30 September 2008, within 25 days of his 10 September 2008 entry on active duty.

6.  Based on the foregoing, there is insufficient evidentiary basis for granting the applicant's 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)                                         AR20110023859



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ABCMR Record of Proceedings (cont)                                         AR20110023859



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