IN THE CASE OF:	  

		BOARD DATE:	  1 August 2013

		DOCKET NUMBER:  AR20120021774 


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 May 2002 to October 2004.

2.  The applicant states:

* her INCAP pay was stopped in May 2002 because the Army believed she was discharged in 2002, but she was not
* her INCAP pay should have continued
* she was not discharged in 2002 and she should have continued receiving INCAP pay
 
3.  The applicant provides:

* letter, dated 4 January 2006, from the U.S. Army Reserve Command to a Member of Congress
* memorandum, dated 10 June 2004
* physicians statements
* Line of Duty (LOD) statement
* Employment verification letter
* Discharge orders
* INCAP pay claim statements


 

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 enlisted in the U.S. Army Reserve (USAR) on 25 May 2000 for a period of 8 years.  She was ordered to active duty for training in January 2001.

3.  She provides a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 8 November 2001, which shows she injured her right upper back during a unit road march on 29 February 2001. 

4.  She provides a second DA Form 2713, dated 8 November 2001, which shows she sprained her left ankle on 23 March 2001 while running with her platoon.

5.  She was released from active duty on 21 November 2001.

6.  Records show she received INCAP pay for the period 22 November 2001 through 20 May 2002. 

7.  She provides a letter, dated 29 October 2002, from the U.S. Army Reserve Command, Fort McPherson, GA, to a Member of Congress which states:

* the applicant was injured on 29 February 2001 while on initial entry training (IET)
* an LOD investigation (LODI) was not initiated at the time of her injury; however, her IET commander submitted an LODI to her unit in November 2001
* the LODI required correction and was submitted to the servicing Casualty Area Command and subsequently approved on 21 May 2002

8.  On 1 September 2004, she was discharged from the USAR by reason of physical disability (severance pay).

9.  In the processing of this case, on 30 April 2013, an advisory opinion was obtained from the Chief, Personnel Management Division, U.S. Army Reserve Command, Fort Bragg, NC.  The advisory official recommends approval of the applicant's request for INCAP pay.  The advisory official states:

	a.  INCAP pay compensates Soldiers for the lost military/civilian wages during the period a Soldier is determined to be unable to perform military or civilian duties for an LOD condition.  Maximum compensation will not exceed military pay.  The applicant received an approved LOD on 21 May 2002 for her 23 March 2001 injury.  She received INCAP pay for 22 November 2001 through 20 May 2002 for her LOD condition.

	b.  the applicant was found not to meet medical retention standards for her LOD condition and went through the Medical Evaluation Board process.  She was found unfit for retention in the Army and was given a medical discharge on 18 August 2004 (the effective date of her discharge from the USAR is 
1 September 2004).

10.  A copy of the advisory opinion was furnished to the applicant to allow her the opportunity to submit comments or a rebuttal.  On 27 May 2013, she responded.  In summary, she stated:

	a.  she was ordered by her military doctors to continue medical treatment and physical therapy daily.

	b.  her commanding officers told her that she was under doctor's orders and that she belonged to the 222nd Army Unit and that she would receive INCAP pay.  All the proper paperwork was done by her unit and signed by officers in charge.  She was told she could not work as a civilian because that was against Army regulations and she belonged to her unit.  Also, her injuries prevented her from doing any type of work.

	c.  her orders at the time were to receive medical treatment, which she did.  She did not receive any outside payments.  The military paid for her medical treatment that they sent her to.

	d.  all of her paperwork was done in a timely manner and properly signed and dated.

	e.  she does not understand why it has taken years for her to receive payment. 


11.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers) establishes policies regarding INCAP pay for Soldiers of the Army National Guard and the USAR.  It states 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.

12.  Department of Defense Directive 1241.1 (Reserve Component Medical Care and Incapacitation Pay for Line of Duty Conditions), paragraph 4.5, states that the Military Departments shall authorize pay and allowances, to the extent permitted, for an Reserve Component 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.

13.  Department of Defense Instruction 124.1 (Reserve Component Incapacitation System Management), paragraph 6.2.2., states the total amount of INCAP pay authorized shall not exceed the amount of pay and allowances provided by law or regulation for a member of a Regular Component of a corresponding grade and length of service. 

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows she received INCAP pay for the period 22 November 2001 through 20 May 2002 for her LOD condition.

2.  She was found unfit for retention in the Army and was given a medical discharge effective 1 September 2004.

3.  Based on the advisory opinion recommendation, it would be equitable to correct her records to show she was authorized maximum compensation for INCAP pay for the period 21 May 2002 through 31 August 2004.

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 all Department of the Army records of the individual concerned be corrected by:

	a.  showing the applicant's request for INCAP pay for the period 21 May 2002 through 31 August 2004 was approved in a timely manner; and

	b.  paying to the applicant the maximum authorized INCAP pay for the period 21 May 2002 through 31 August 2004.




      _______ _   __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)                                         AR20120021774





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ABCMR Record of Proceedings (cont)                                         AR20120021774



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