BOARD DATE:	  2 April 2015

		DOCKET NUMBER:  AR20140010336 


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 his records be corrected to show he was approved for incapacitation (INCAP) pay for the period 1 April 2013 - 30 September 2013 prior to his discharge on 23 April 2014.  He submitted an email, dated 24 February 2015, amending his request to include the period 1 October 2013 - 31 March 2014.

2.  The applicant states he is service connected for an injury incurred on 24 June 2009.  He has been paid INCAP pay from that date until 31 March 2013.  He didn't receive INCAP pay for the remaining year.

3.  The applicant provides:

* orders to annual training (AT)
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* a memorandum, dated 5 October 2011, from the 81st Regional Support Command, Fort Jackson, SC 
* TPU (troop program unit) Checklist for INCAP Pay Claims, 180 Days or Less
* a memorandum, dated 27 February 2013, from the United States Army Physical Evaluation Board (USAPEB), Arlington, VA
* DA Form 199 (Informal PEB Proceedings)
* a memorandum, dated 18 April 2014, from 1st Battalion, 398th Regiment, 3rd Brigade, 95th Division (Institutional Training (IT)), Owensboro, KY
* U.S. Army Physical Disability Agency (USAPDA) Orders D 078-30, dated 19 March 2014
* two undated letters from Department of Veterans Affairs (VA) Regional Office, Sea Tac, WA
* three letters, dated 22 June, 26 June, and 27 July 2013, from the Social Security Administration
* several DA Forms 7574 (INCAP Pay Monthly Claim Form)

CONSIDERATION OF EVIDENCE:

1.  On 27 November 1991, he enlisted in the U.S. Army Reserve.  He reenlisted on 27 March 1998 and on 21 February 2004 he reenlisted for an indefinite term.

2.  On 30 April 2009, he was ordered to AT for 14 days, to report to Fort Knox, KY, on 20 June 2009.

3.  On 24 June 2009, he suffered a back injury, not otherwise specified (NOS), while riding in a tank on rough terrain at Fort Knox, KY.  He was thrown around inside of the tank injuring his back.  

4.  On 6 August 2011, his unit commander signed a DA Form 2173 determining his injury was incurred in line of duty (LOD) and a formal LOD investigation was not required.

5.  On 5 October 2011, the 81st Regional Support Command approved the 
DA Form 2173 for the applicant's back pain, NOS.

6.  On 27 February 2013, the USAPEB submitted a memorandum to the VA requesting a disability rating percentage for the following conditions the Physical Evaluation Board (PEB) found to be unfitting:

* status post lumbar laminectomy with residuals
* lumbar disc bulge with S1 impingement
* anxiety disorder, NOS

7.  A DA Form 199 shows an informal PEB was convened on 11 March 2014.  The PEB found the applicant physically unfit for status post lumbar laminectomy with residuals and lumbar disc bulge with S1 impingement.  The PEB recommended a rating of 10 percent (%) and that he be separated with severance pay.

8.  On 18 April 2014, the 1st Battalion, 398th Regiment, 3rd Brigade, 95th Division (IT) submitted an initial authorization for payment of INCAP pay for the period 1 April 2013 - 30 September 2013.

9.  USAPDA Orders D 078-30, dated 19 March 2014, discharged the applicant effective 23 April 2014.  He was authorized disability severance pay in grade E-4 based on 4 years, 5 months, and 18 days of active service.  His percentage of disability was 10%.

10.  On 19 February 2015, the Office of the Deputy Chief of Staff, G-1 approved his INCAP pay for the period from 1 April 2013 - 30 September 2013.  G-1 stated the intent of INCAP pay is to compensate members and the compensation must occur while the Soldier is a service member.  The applicant's claims were never paid prior to his discharge.

11.  The letters from the Social Security Administration show the applicant was approved for social security disability insurance (SSDI) from December 2009.

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

13.  Army Regulation 135-381 provides that 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.  Payment in any particular case may not be made for more than 6 months without review of the case by the appropriate headquarters.

14.  Army Regulation 135-381 provides that Soldiers on orders for 31 days or more, who would otherwise be retained on orders due to an incapacitation, but who elect to leave active duty, may be entitled to INCAP pay.
  
DISCUSSION AND CONCLUSIONS:

1.  Based on the letter, dated 19 February 2015, from G-1 it would be appropriate to correct his records to show his request for INCAP pay was approved prior to his discharge.

2.  The PEB found him unfit for duty on 11 March 2014 due to his back injury and the letters from the Social Security Administration show he was receiving SSDI effective December 2009.  Therefore, it is reasonable to conclude he met the requirements for INCAP pay during the period from 1 October 2013 to 31 March 2014.

3.  In view of the above, his records should be corrected to show he was approved prior to his discharge for INCAP pay from 1 April 2013 to 31 March 2014 and that he be paid any pay and allowances due as a result of this correction.

BOARD VOTE:

__X______  _X______  ___X__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 showing he was approved for INCAP pay for the period 1 April 2013 to 
31 March 2014 prior to the date of his discharge on 23 April 2014.  

2.  The Board also determined the applicant should be paid any pay and allowances due as a result of the above correction.




      _______ _ 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)                                         AR20140010336



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ABCMR Record of Proceedings (cont)                                         AR20140010336



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