IN THE CASE OF:

		BOARD DATE:	  21 July 2015

		DOCKET NUMBER:  AR20140020461 


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, incapacitation (INCAP) pay for the months of June and July 2013 from the Texas Army National Guard (TXARNG).

2.  The applicant states:

   a.  His appeal to the National Guard Bureau (NGB) for the INCAP pay was denied on 13 November and 13 December 2013.  His request was denied because he had already retired.  He was not applying for new INCAP pay, but only for the wrongfully denied INCAP pay based solely on Lieutenant Colonel (LTC) Rxxxxx's opinion, as he stated in his rebuttals.

   b.  Department of Army Pamphlet 135-381 (ARNG and Army Reserve – Incapacitation of Reserve Components Soldiers Processing Procedures), chapter 2, paragraph 2-2(5), states INCAP pay under the Department of Defense Directive (DODD) shall be paid only during the period a member remained not fit for military duty and/or demonstrates a loss of earned income as a result of the incapacitation.  

   c.  He stated in his appeal that he had informed the Brigade (BDE) Command Sergeant Major (CSM) of his incapacitation and that he would not and could not attend annual training (AT).  He was instructed and encouraged to travel to the Fort Hood, TX, annual training site.  Even after he informed the BDE CSM that he wasn't going to attend AT due to his upcoming surgery and limitations, he didn't participate in any AT event type of training.  He did attempt to finalize INCAP documentation for signatures with his medical noncommissioned officer (NCO), Sergeant Lxxx Rxx.
   
   d.  He didn't carry a weapon and only performed face time for troop morale prior to their start of combat skill training lanes as encouraged by his BDE CSM.  He told the INCAP Section all Soldiers were cut AT orders and when revoked all pay is recouped if a Soldier doesn't attend or is not allowed to attend.  He had instructed his readiness NCO to have his orders revoked and he did.  The orders at the time only covered him as a safety net for travel there and return to his home of record.  The AT orders had a start date of 27 July 2014.  He underwent surgery on 31 July 2014.

   e.  The orders were revoked and all pay had been or was in the process of being revoked.  All pay was finally recouped before any INCAP pay was approved after previously being denied.  He was seen by his civilian surgeon and physician on 22 May and 4 June and it was determined that he needed surgery and further care.  Still working at the time and through pain, he made his employer aware of his upcoming surgery by showing them his military profile and civilian documentation for his pending surgery with restrictions and limitations.

   f.  His last date of civilian employment was 20 June 2013.  This is the start date he is claiming for INCAP pay.  His physical therapy was ongoing and he was still under the care of his surgeon until he was deemed fit for work.  All restrictions were lifted on 27 January 2014 through the Department of Veterans Affairs (VA) surgeon.  He didn't wish to be reconsidered for all periods of loss of non-military earned income.  

3.  The applicant provides copies of a DA Form 2173 (Statement of Medical Examination and Duty Status) and a Line of Duty (LOD) Determination memorandum.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the TXARNG on 1 January 1993.  He held military occupational specialty 11Z (infantry senior sergeant).

2.  He provided copies of the following:

* DA Form 2173, dated 5 June 2013, which shows he received medical treatment on 23 October 2012 for an injury consisting of a sprain to his left shoulder in March 2012 while doing push-ups when deployed to Djibouti.  A LOD was requested.
* LOD Determination memorandum, dated 14 June 2013, which shows his injury was determined to be in LOD as it occurred during Operation Enduring Freedom

3.  He was honorably retired from the TXARNG on 17 February 2014 by reason of sufficient service for retirement.  

4.  In an advisory opinion, dated 27 March 2015, the Chief, Personnel Division, NGB, Arlington, Virginia, stated that the applicant requested administrative relief to receive INCAP pay for 21 June 2013.  The NGB official recommended disapproval of the applicant's request and the NGB Medical Actions Branch concurred with the recommendation.  The NGB official stated:

   a.  The applicant requested an NGB appeal on 13 November and 13 December 2013.  The applicant was issued AT orders for 27 through 31 July 2014.  The orders were revoked and all pay had been or was in the process of being recouped.  The applicant met with a civilian surgeon on 22 May and 4 June 2014 and it was determined surgery was necessary.  Surgery was scheduled for 31 July 2014.

   b.  The applicant's last civilian working day was 20 June 2014.  The applicant was not incapacitated at this time for military duties or training.  That date was not mandated by the military as an end-date for his current civilian deployment.  Documentation contained on the Electronic Medical Management Processing System shows a payment for only 31 July 2013 in the amount of $279.01.  He recommended the applicant engage with the TXARNG for AT pay issues for the period from 21 June through 20 July 2013.

5.  The advisory opinion was forwarded to the applicant for acknowledgment or possible rebuttal on 2 April 2015.  In his statement, dated 12 April 2015, the applicant stated:

   a.  In accordance with Department of the Army Pamphlet 135-381, chapter 2 (INCAP Claim Procedures), paragraph 2-2(5) (Unit processing procedures), INCAP pay under the DODD shall be paid only during the period a member remained not fit for military duty and/or demonstrates a loss of earned income as a result of the incapacitation.  

   b.  Upon returning to his civilian employer on the 90th day from the last day of his terminal leave he informed them that he had been injured during his recent deployment and would be needing continued medical care under Tricare.  His employer stated that they would need proof of injury documents, and he later produced the NGB Memorandum, dated 14 June 2013, along with the DA Form 2173, dated 5 June 2013.  He was also instructed that he would not be allowed to work injured or on any light duty as there was none in his department.  He would not be allowed to work until he was fully released by all attending doctors and surgeons.  That is why his last day of civilian work was 20 June 2014 after submitting documentation to civilian employer.  On 4 June 2013, he was given a limited use restriction for his left shoulder once he began seeing a civilian doctor.  He received additional restrictions from the civilian orthopedic doctor who scheduled him for the earliest surgery date in his busy schedule pending the final approval through the TXARNG INCAP section. 

   c.  With the civilian doctor's restrictions in place and his military profiles in place through his unit physician assistant (PA) he continues to state these same comments and statements.  All Soldiers are precut AT orders and submitted for pay in batches.  They are revoked and all pay is recouped if a Soldier does not attend or they are pulled if not allowed to attend.  He had instructed his readiness NCO to have them revoked which the NCO did.  It took some time for the pay to be recouped through their pay system.  He knows that he had advised his BDE CSM that he was still working through pain at the time until he made his employer aware of his upcoming surgery, restrictions, and limitations.  The 20th of June 2013 was his last day of civilian employment.  That is why he is still claiming INCAP pay for the start date of 21 June 2014.

   d.  His physical training profiles were ongoing and he was still under the care of his surgeon who deemed him unfit for work for his civilian employer.  On the military side he was still covered by his DA Forms 3349 (Physical Profile) with limitations from the unit PA.  He wishes the ABCMR reconsider and make a determination in his favor for all periods of loss of nonmilitary earned income.  

6.  Army Regulation 135-381 (INCAP of Reserve Component Soldiers) establishes procedures and policies and implements statutory authorities regarding medical, dental, hospitalization, and disability benefits, incapacitation compensation, and death benefits, as well as reporting requirements on these entitlements for Reserve Component Soldiers.  It states, in pertinent part, that in order to qualify for Army disability benefits, Soldiers must have incurred or aggravated an injury, illness, or a disease while in a duty or travel status.  A finding that the injury, illness, or disease was incurred or aggravated in the line of duty is mandatory to qualify for benefits.  A member of the ARNG who is physically able to perform military duties, but who sustains an injury, illness, or disease while in the line of duty, that prevents the member from performing his or her civilian job will receive his or her demonstrated loss of income.  This loss of income will not exceed the equivalent rate of full pay and allowances for his or her rank and length of service.

7.  Army Regulation 135-381, paragraph 4-1e, states that prerequisites for entitlement to INCAP pay are inability to perform normal military duties or satisfactory demonstration of loss of nonmilitary earned income.  In the latter case, the burden to prove loss rests with the Soldier.  

8.  Department of Defense Instruction 1241.2 (Reserve Component INCAP System Management), dated 3 May 2001, paragraph 6.3.2., states INCAP pay in any particular case may not be made for more than six months without review of the case by the Secretary concerned to ensure that continuation of military pay and allowances is warranted under this Instruction, and to determine whether the member should be referred to the Disability Evaluation System.  Such review shall be made every six months.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was issued AT orders for 27 through 31 July 2014.  He was seen by a civilian surgeon on 22 May and 4 June 2014 and surgery was determined to be necessary.  His AT orders were revoked with recoupment of all pay.  His last civilian working day was 20 June 2014.

2.  There is no evidence of record and he did not provide sufficient evidence he was incapacitated at any time for his military duties or training for entitlement to INCAP pay for the months of June and July 2013 and/or beginning on 21 June 2014.  The NGB recommended denial of his request and that he contact the State for AT pay issues.  

3.  In view of the foregoing, there is insufficient evidence to support granting 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)                                         AR20140020461





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ABCMR Record of Proceedings (cont)                                         AR20140020461



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