IN THE CASE OF: 

		BOARD DATE: 10 September 2015

		DOCKET NUMBER:  AR20140020919 


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, correction of his military records to show he is entitled to receive incapacitation pay (INCAP) for the period 10 May 2013 to 7 July 2014.

2.  The applicant states his unit did not provide the necessary assistance to process his INCAP packet prior to his retirement.

3.  The applicant provides:

* deployment orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Forms 2173 (Statement of Medical Examination and Duty Status)
* Medical Incapacitation Checklist
* permanent disability retirement orders effective 8 July 2014
* DA Forms 7574 (Incapacitation Pay Monthly Claim Form)
* DA Forms 7574-1 (Military Physician's Statement of Soldier's Incapacitation/Fitness for Duty)
* DA Form 7574-2 (Soldier's Acknowledgement of Incapacitation Pay Counseling)
* Forms W-2 (Wage and Tax Statement 2012 and 2013)
* Federal Prison System Statement of Earnings and Leave
* DD Form 2796 (Post-Deployment Health Assessment)
* Department of Veterans Affairs (VA) decision letter, dated 
3 June 2013
* U. S. Office of Personnel Management Retirement Services Program Notice of Annuity Adjustment
* VA Rating Decision, dated 22 April 2014
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) 

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired U. S. Army Reserve (USAR) lieutenant colonel. 

2.  Orders dated 8 May 2009 show he was ordered to active duty as a member of his USAR unit effective 10 June 2009 and ordered to report to Camp Shelby, Mississippi on 13 June 2009.

3.  Orders dated 9 July 2009, show he was deployed on temporary change of station to Iraq in support of Operation Iraqi Freedom.  He was to proceed on 
15 July 2009.

4.  He was released from active duty on 9 July 2010 due to completion of required active service.  His DD Form 214 shows he served in Kuwait/Iraq from 10 July 2009 to 22 May 2010.  His awards include the Combat Action Badge. 

5.  A DA Form 3349 (Physical Profile) shows the applicant was issued a permanent physical profile on 3 November 2012.  The medical conditions are shown as, "PTSD [post-traumatic stress disorder], depression, TBI, neck pain, shoulder pain, hearing loss, sleep apnea, and decreased distant visual acuity."

6.  A 19 April 2013 DA Form 2173 shows:

   a.  the applicant was examined on 28 May 2010 at the Eisenhower Army Medical Center (AMC) clinic at Camp Shelby, Mississippi.
   
   b.  Item 15 (Details of Accident or History of Disease) shows, "21 Jan 2010, 1831 hrs at CRY (Charlie), Joint Base Balad, 107mm rocket explosion within 60 meter proximity of Soldier causing headaches, neck pain and hand injury at time of incident." 
   
   c.  Item 30 (Details of Accident – Remarks) shows, "Diagnosed 11 Jul 11 and received treatment for PTSD and depression at Lexington VAMC.  Positive [traumatic brain injury (TBI)] screening 20 May 10 and treated for post-concussion syndrome at Eisenhower AMC, Camp Shelby.  Diagnosed and receive treatment for mild TBI with chronic tension headaches at Lexington, VAMC.  Diagnosed 28 Oct 10 for degenerative arthritis, [degenerative disc disease] of cervical spine primarily at C5-C6.  Treatment at VAMC for tender left supralateral knee, complex tear of posterior horn of the medial meniscus and diagnosed with left knee iliotibal band syndrome.  Diagnosed with bilateral tinnitus and 19 Jan 12 Comp Audio Eval indicated significant hearing loss."

   d.  A formal line of duty investigation was not required and the injury was considered to have been incurred in line of duty.  

7.  Orders show he was retired due to permanently disability (80%) effective 
8 July 2014.

8.  In support of his request he provides:

	a.  DD Form 2796, dated 12 May 2010, in which he indicates he was deployed to Kuwait and Iraq and was wounded or injured during his deployment and was still having problems related to that event.

   b.  DA Form 7574, dated 2 July 2014, showing he was injured on 21 January 2010.  The exact dates of his incapacitation are shown as 10 May 2013 to 7 July 2014. 

   c.  DA Forms 7574-1, authenticated by Dr. M___ A____, VA Medical Center (VAMC), Lexington, Kentucky, dated:
   
      (1)  24 April 2013, showing he was examined that day and found to be not fit to perform his civilian duties from 1 May 2013 to 30 July 2013;

      (2)  20 July 2013, showing he was examined that day and found to be not fit to perform his civilian duties from 30 July 2013 to 30 October 2013;

		(3)  18 October 2013, showing he was examined that day and found to be not fit to perform his civilian duties from 30 October 2013 to 30 January 2014; 

		(4)  26 January 2014, showing he was examined that day and found to be not fit to perform his civilian duties from 1 February 2014 to 30 April 2014; and

		(5)  25 April 2014, showing he was examined that day and was found to be not fit to perform his civilian duties from 30 April 2014 to 7 July 2014. 

	d.  A DA Form 7574-2 he signed on 24 June 2014 showing he fully understood and agreed that, in part, that this claim for incapacitation pay could not be processed if proper documentation was not provided by him.

	e.  Medical documents showing he was treated from 1 March 2010 to 
7 September 2012 for medical issues resulting from the blast of a 107mm rocket that struck the ground approximately 60 meters away from his location.  He experienced symptoms including a concussion, left knee pain, hearing loss, tinnitus, imbalance, insomnia, headaches, dizziness, memory loss, irritability, and depression.   

	f.  A DA Form 3947 showing a MEB determined he was to be referred to a PEB.  The MEB Narrative Summary listed the diagnoses that fell below medical retention standards:  degenerative arthritis; degenerative disc disease of cervical spine; PTSD; major depressive disorder, severe without psychotic features; TBI; tension headaches; vertigo/dizziness, anosmia, and chronic fatigue syndrome. 

	g.  His Form W-2 for 2012 and 2013.

	h.  Federal Prison System Statement of Earnings and Leave for the period 
13 January to 26 January 2013.

	i.  U. S. Office of Personnel Management Retirement Services Program letter notifying the applicant of his new monthly annuity rate effective in June 2013.

8.  In the processing of this case, on 12 March 2015, an advisory opinion was obtained from the Chief, Compensation and Entitlement Division, Office of the Deputy Chief of Staff G-1, Headquarters, Department of the Army.  After consultation with Chief, Personnel Management Division, USAR Command (USARC), Fort Bragg, North Carolina, the opining official recommended disapproval of the applicant's request and noted:  

	a.  Army Regulation (AR) 135-381 (Incapacitation of Reserve Component Soldiers) states the DA Form 7574 is to be completed on a monthly basis.  The applicant requested the entire claim period of 10 May to 7 July 2014 on a single DA Form 7574. 

	b.  The DA Form 7574-1 does not address in block 8 the applicant's incapacitation for military duties or incapacitation for a civilian job.  The doctor also did not annotate the remarks from the MEB, a prognosis of possible recovery time-frame, or a foreseeable recovery timeline.

	c.  The applicant's packet only includes medical records for the line of duty.  The INCAP claim process requires the medical documentation for the time-frame he was treated by the military physician, annotating he was still unable to return to military or civilian duties.
	d.  The packet did not include VA compensation amounts received by the applicant.  This action must be annotated for the months he received VA compensation.  Additionally, the packet is missing the applicant's 2014 W-2.

	e.  The packet did not contain the applicant's competed DA Form 3349 for the time period he was incapacitated.

	f.  In order for the applicant to receive a favorable decision on his INCAP request, the opining officer will need to review all supporting documentation as listed in the advisory opinion.
	
9.  The USARC opining official noted the same discrepancies in the applicant's request and noted that upon the applicant obtaining the missing documents and submitting an administratively complete INCAP claim a determination can be made and, if favorably considered, be processed for payment.  The applicant should forward his complete corrected claim to his previous unit commander for processing.  The opining official states, "A representative from this headquarters, Health Promotions Branch is contacting the unit full-time representative to advise them of the corrections required to meet the administrative requirements for claim submission."

10.  A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 3 April 2015, the applicant provided the following rebuttal:

   a.  While he agrees, in general, that the INCAP claim forms are to be submitted on a monthly basis, he has a valid justification for submitting his INCAP claim all on one form.

   b.  His unit was aware of his combat injuries and allowed him to attend medical rehabilitation at the VA in lieu of attending battle assemblies.  As his injuries failed to improve and he could no longer work or function beyond the home, his command informed him they were working on placing him in the Warrior Transition Battalion (WTB) at Fort Knox, Kentucky.  This can verified by Master Sergeant (MSG) M___ G. B_____, NCOIC USAR WTB.  As his command was working on placing him in the WTB, they refused to process any INCAP paperwork.  This is the sole reason why he was not able to complete and submit a DA Form 7574 and 7574-1 on a monthly basis.  It took his command 6 months to schedule the required military doctor physical at Fort Knox.  Without any notice to him, his command cancelled the appointment the day before it was due.  

   c.  Once it became clear that his unit was no longer going to place him in the WTB, he requested their assistance in completing the INCAP paperwork.  This can be verified by Ms. P_______ A. S_______, Army Reserve Recovery Care Coordinator.  His command was totally unresponsive and failed to honor the regulation requiring notice and support concerning INCAP pay.  After a Congressional inquiry his higher headquarters assigned Ms. Y____ R. H_____ to resolve his case.  Ms. H_____ can verify that his unit was unresponsive and failed to work with her and return paperwork in a timely manner.  It took the applicant almost 3 months to get an appointment with a VA doctor to complete the required INCAP paperwork.  He sent the paperwork to Ms. H_____ in July 2014.  The INCAP paperwork sat on a desk in his command for about 4 months before being submitted.

   d.  The bottom line as to why he did not submit INCAP forms on a monthly basis is this – the actions, or lack thereof, of his unit and the Reserve system made it impossible.  He followed the instructions of his command and they were unhelpful, unresponsive, and counter-productive.  Submitting a claim for the entire period was the only option left to recoup lost income per the regulation.  

	e.  The DA Forms 7574-1 are not filled out correctly because his unit cancelled his appointment with the military physician at Fort Knox.  The military physician would have had a much better understanding of how to complete the form.  His VA doctor had never completed this form before.  His debilitating injuries are clearly listed.  As the VA doctor was completing the paperwork for the entire length of time, why would he address recovery time, when he states in block 10 (Government Physician's Verification) that these are all chronic issues.  The applicant was clearly unable to work during those 24 months and the doctor signed his name attesting to that fact.  The doctor did not complete block 8 (Incapacitation for Military Duties) because it clearly states that it can only be completed by a military physician.  He would have gladly filled out block 8, just as he did block 9 (Incapacitation for Civilian Job), had he known he had the authority to do so.  

	f.  Despite his best attempts over many months, the applicant was not permitted access to a military physician.  His unit cancelled his appointment with a military physician at Fort Knox.  He had been treated by a VA doctor and civilian doctor since 2010.  Both his VA and civilian doctors documented that his injuries limited his ability to function outside the home.  Additionally, both the MEB and PEB reached the same conclusion.  With all the medical experts documenting/reaching the same conclusion, why is the advisory opinion focusing on him returning to military or civilian duties?  Again, he was working with MSG B_____, Ms. S_______, and Ms. H_____ on his own time to comply with all deadlines and INCAP requirements.  His wife spent hundreds of hours attempting to resolve the problems his unit created.  

	g.  His higher headquarters informed him that his INCAP packet was 100% complete.  He has never prepared an INCAP packet and is not an expert.  He had a brain injury and the only help he received on this packet was from his wife who is his VA caregiver.  His unit refused to give him any support or assistance in preparing and completing the packet. 

11.  The applicant provided the following with his rebuttal to the advisory opinion:

	a.  Email notes relating to the processing of his INCAP packet. 

	b.  His 2014 Form W-2.

	c.  DA Form 3349 showing he received a permanent profile on 3 November 2012 for PTSD, depression, TBI, knee pain, neck pain, shoulder pain, memory loss, hearing loss, elbow pain, sleep apnea, and decreased visual acuity.

	d.  MEB Narrative Summary.

   e.  DA Form 199, dated 30 April 2014. 

	f.  DA Form 2173, dated 22 April 2013.

12.  Army Regulation 135-381 (Incapacitation 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.

13.  Army Regulation 135-381 states that, in order to qualify for Army disability benefits, Soldiers must have incurred or aggravated an injury, illness, or a disease condition while in a duty or travel status.  Prerequisites for entitlement to incapacitation pay are the inability to perform normal military duties or satisfactory demonstration of loss of nonmilitary earned income.  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.

14.  Department of Defense Instruction 1241.2 (Reserve Component Incapacitation System Management), paragraph 4.3, states it is Department of Defense policy to authorize pay and allowances, to the extent permitted by law, for Reserve Component members who are 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 Reserve Component members who are fit to perform military duties but experience a loss of earned income because of an injury, illness, or disease incurred or aggravated in the line of duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, correction of his military records to show he is entitled to receive INCAP for the period from 10 May 2013 to 7 July 2014.

2.  The available evidence shows the applicant was injured in line of duty during a deployment to Kuwait/Iraq.  As a result he has been unable to perform his military or civilian duties.

3.  He states his unit did not provide the necessary assistance needed for him to have his INCAP packet processed prior to his retirement, so he prepared it with the assistance of his VA doctor and his wife.

4.  Advisory officials from both the Army G-1 and USARC opined the applicant's request should be denied because the packet was not properly completed.   However, the applicant was encouraged to submit a properly completed packet through his previous unit commander.  A representative from the USARC Health Promotions Branch will contact the unit's full-time representative to advise them of the corrections needed to meet the administrative requirements for claim submission.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20100007342



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ABCMR Record of Proceedings (cont)                                         AR20140020919



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