IN THE CASE OF:	  

		BOARD DATE:	  2 October 2012

		DOCKET NUMBER:  AR20120004949 


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 her records to show:

* entitlement to incapacitation (INCAP) pay
* in effect, payment of INCAP pay for the 6-month period from 20 August 2003 through [19] February 2004 (period 1) and for the 6-month period from [20] February 2004 through [19] August 2004 (period 2)

2.  The applicant states she:

* has exhausted administrative remedy through the Defense Finance and Accounting Service (DFAS)
* was found unfit for duty by competent medical authority and did not return to drill status for one year
* was advised by her unit that INCAP pay had been approved for period 1 and period 2

3.  The applicant provides an index that identifies her evidence in Tabs A through K.

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.  The applicant was a major in the U.S. Army Reserve (USAR) assigned to a troop program unit.  On 17 January 2003, she was mobilized as a member of her unit in support of Operation Enduring Freedom (OEF).

3.  While mobilized on active duty, the applicant sought treatment for bilateral wrist pain and hand weakness on 30 May 2003.  A Standard Form 600E (Chronological Record of Medical Care), dated 30 May 2003, shows she was diagnosed with possible carpel tunnel syndrome in both hands and pain in her right knee while running.  On 8 August 2003, her injuries were determined to be in the line of duty.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 8 August 2003, shows the applicant was treated for carpel tunnel syndrome in both hands.  Item 30 (Details of Accident) contains the entry, "ON 30 MAY 03, MAJ [Applicant] WAS (sic) COMPLAINED OF WRIST PAIN IN THE LEFT AND RIGHT WRISTS.  ON THE SAME DAY SERVICE MEMBER WENT TO BENNETT AD HEALTH CLINIC FOR THE MEDICAL TREATMENT TO BOTH WRISTS.  FOLLOW UP APPOINTMENT WAS ON 2 JUL 03."  

4.  On 19 August 2003, the applicant was released from active duty and she returned to her unit at Fort Hood, TX.  She had completed 7 months and 3 days of active service that was characterized as honorable.  She failed to out-process from her active duty status.

5.  On 3 December 2005, a show-cause board was convened under the provisions of Army Regulation 15-6 to determine if the applicant had committed multiple acts of misconduct.

6.  The proceedings of the board show that the applicant was personally notified of the board by a major who put the notification in her hands but she refused to sign for the notification.

7.  A lieutenant colonel testified that his commander directed him to deliver the notification to the applicant and to have her sign for the notification.  He testified that he went to her place of employment in civilian clothes and presented her the notification packet and when she opened it and realized what it was, she put it back in the envelope and returned to work.  He stated that she refused to sign for the packet.
8.  The senior defense counsel at the Trial Defense Service submitted a memorandum for record in which she stated that she was appointed as the applicant’s counsel in September 2005 and when she contacted the applicant and explained that she was appointed to represent her at the Administrative Separation Board, the applicant told her twice that she was not interested in her representation and did not require her service.  Accordingly, she accepted the applicant’s wishes and did not represent her.     

9.  After hearing all of the testimony and reviewing the available evidence, the board found that:

* The applicant mismanaged her personal affairs to the discredit of the service within the meaning of Army Regulation 135-178 by knowingly continuing to receive military pay to which she was not entitled
* She did not out-process finance as ordered at the end of her mobilization in September 2003 
* She failed to report continued receipt of active duty pay from September 2003 through May 2004 after demobilization
* She improperly stated that this pay was incapacitation pay
* She intentionally neglected or failed to perform assigned duties by missing unit training assemblies (UTAs) every month from June 2004 to June 2005 and annual training in February and March 2005
* She failed to report for mandatory annual training on 11 September 2004 and again from 26 February through 11 March 2005
* She intentionally neglected or failed to reply to official correspondence by refusing to acknowledge letters from her unit and by hanging up the telephone on an officer of the unit who called to ascertain why she was not present for training
* The applicant repeatedly refused to accept personally delivered notifications as stated by witnesses
* The applicant repeatedly refused to accept delivery of and to sign for mail as evidenced by witness statements
* The applicant’s husband, an active duty officer, connived with her in refusing delivery of official mail as evidenced by written statements 
* The applicant willfully changed her mailing address from Germany to Texas with the intent to deceive and to frustrate delivery of her mail while living in Germany

10.  The board also noted the applicant willfully refused to accept personal service of the memorandum initiating elimination proceedings and the notification of board proceedings.  She also refused to consult with an attorney despite 


having been given an order to do so and she failed to appear at the proceedings of the board.  The board unanimously agreed that the applicant should be discharged from the USAR under other than honorable conditions.

11.  On 8 September 2006, the appropriate authority (a major general) approved the findings and recommendation of the board and directed that the applicant be discharged under other than honorable conditions.  Accordingly, she was discharged on orders dated 1 October 2006.

12.  The applicant submitted:

	a.  a document – Memorandum for Commander, 4003rd Garrison Support Unit, Fort Hood, TX – wherein she requested INCAP pay.

	b.  a U.S. Army Reserve Command (USARC) Form 46-1-R (Soldier's Acknowledgement of Incapacitation Pay Counseling), dated 18 August 2003,  and witnessed by "A.W.R." (Commander's Printed Name, Grade, and Signature/Date).

	c.  a USARC Form 46-2 (Military Physician’s Statement of Soldier’s Incapacitation/Fitness for Duty), dated 4 September 2004, showing in Part A (Incapacitation for Military Duties) that a military physician verified the applicant was not fit to perform military duties from 4 September 2003 to 4 March 2004.  It is signed by a physician's assistant, not a physician.

	d.  a letter from her (former) unit administrator, dated 20 June 2011, certifying the applicant was approved and processed to receive incapacitation pay.  The author stated, “She was assigned to 4003rd Garrison Support Unit, Fort Hood, Texas, when she incurred an injury in the LOD.  She was incapacitated from performing military duties from 20 August 2003 until the date she was found fit for duty.  During this period she did not attend any type of unit training; she was unemployed and did not earn any income.”

13.  The applicant’s available records do not contain a USARC Form 46-R (Incapacitation Pay Monthly Claim Form) approved and signed by her commander. 

14.  There are no documents in the applicant’s record that show she had a loss in civilian income as a result of her injury.

15.  There is no other evidence in the applicant’s records which verifies she was entitled to INCAP pay and allowances for periods 1 and 2.

16.  Army Regulation 135-381 and Title 37, U.S. Code, section 204, provide 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 INCAP 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 INCAP 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 INCAP pay be extended past the     6-month limitation.  

17.  Army Regulation 135-381 states, in pertinent part, that the Reserve Component (RC) INCAP pay program is similar to workman’s compensation.  It is based on U. S. Code, Title 37, Section 204 and 206.  The amount of INCAP pay for the RC member will be determined in accordance with Department of Defense (DoD) publication 700.14-R.

     a.  The objective of the RC INCAP pay program is to compensate, to the extent permitted by law, 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 and to provide the required medical and dental care associated with the incapacitation.
 
     b.  INCAP pay program has two purposes: It provides medical care and compensates RC Soldiers who lose military or non-military income as a result of the service connected injury or illness.

     c.  RC members incapacitated in the line of duty are entitled to medical and dental treatment in a Medical Treatment Facility (MTF) for the in the line of duty condition.  If the incapacitation cannot be materially improved by hospitalization or treatment, the case will be processed and finalized through the Army Disability Evaluation System (DES).    

     d.  Types of Claims: 

          (1)  Member unable to perform military duties – a member who is unable to perform military duties is entitled to full pay and allowances, including all incentive pay, less any civilian earned income for the same period the member receives INCAP pay.

          (2)  Members able to perform military duties – a member able to perform military duties, but demonstrates a loss of earned income as a result of an in the line of duty incapacitation, will be compensated for lost earned civilian income.  The compensation under this provision will be the lesser of the amount of demonstrated lost civilian income in the amount not to exceed military pay and allowances for which the member is entitled if serving on active duty.

DISCUSSION AND CONCLUSIONS:  

1.  The applicant requests she be paid INCAP pay for two 6-month periods from August 2003 to August 2004.

2.  Evidence of record shows:

* the applicant was diagnosed with carpal tunnel syndrome while on active duty in 2003; it was determined to be LOD
* she made a request for INCAP pay, but there is no USARC Form 46-R to show it was ever processed and approved

3.  The applicant claims she was unable to drill with her unit because of her unfitting condition; however, the record shows she:

* failed to report continued receipt of active duty pay from September 2003 through May 2004 after demobilization
* improperly stated that this pay was incapacitation pay
* intentionally neglected or failed to perform assigned duties by missing UTAs every month from June 2004 to June 2005 and annual training in February and March 2005
* failed to report for mandatory annual training on 11 September 2004 and again from 26 February through 11 March 2005
* intentionally neglected or failed to reply to official correspondence by refusing to acknowledge letters from her unit and by hanging up the telephone on an officer of the unit who called to ascertain why she was not present for training
* repeatedly refused to accept personally delivered notifications as stated by witnesses
* repeatedly refused to accept delivery of and to sign for mail as evidenced by witness statements

At the conclusion of her failure of performance, a show-cause board recommended she be separated and she was discharged under other than honorable conditions.

4.  The applicant was never properly evaluated and processed for INCAP pay, thus her entitlement was never established.  Even if it had been established, it would only have been for 6 months, not 12 months.  Governing regulations require re-evaluation by a military physician after 6 months of receipt of INCAP pay.  This was never done.  She provides insufficient evidence to show she should have been approved for INCAP pay.  In view of the foregoing, there is no 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 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)                                         AR20120004949



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ABCMR Record of Proceedings (cont)                                         AR20120004949



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